State ex rel. Frazer v. Buck , 182 Mo. App. 101 ( 1914 )

ROBERTSON, P. J.

The respondent is county collector and tlie relators are judges of the county court of Scott county. On J une 2,1913, an accountant submitted a proposal to the county court to audit and examine tbe books of tbe county clerk, circuit clerk, treasurer, collector, sheriff, probate judge and reeorder, for a period of ten years prior to June 1,1913, and also certain drainage districts from the date of organization, and to place six accountants on the work at $7.50 per day for each man plus their expenses. This poposal was accepted by an order of the county court then in session and the accountant instructed to begin work on June 91,1913. On June 9th the county court accepted the bond of said accountant in the sum of three thousand dollars and two of the judges of " the county court, the accountant and an attorney proceeded to the office of respondent and demanded of him his books for the purpose of examination for which the accountant had been employed. The respondent refused to deliver the books to the judges for the alleged reason that said books were then in the possession of an examiner sent there from the office of the State auditor in pursuance to a petition signed by more than three hundred taxpaying citizens of Scott county, calling upon the State auditor to audit the books, pursuant to an act passed by the Legislature (Laws of 1913, page 766).

On June 16, 1913, when the court was in session, relator Frazer, the presiding judge of said court, presented a written motion that the former proceedings of that court bearing upon the contract made with the special accountant be quashed, repealed and for naught held, and that the order be entered setting aside the former record; which motion was'overruled, the presiding judge dissenting.

At the same session an order was entered, over the -objection of the presiding judge, as follows: “The county officers whose books and records the county court had decided to examine having refused to allow the court and its expert accountants to inspect or examine their books, we appoint J. A. Finch and Ralph E. Bailey as attorneys in this case and the prosecuting attorney, John B>. McWilliams, be directed to aid them to enforce the decisions of this court by bringing the necessary legal proceedings against the said officers.” Subsequently the prosecuting attorney was relieved from any duty imposed upon him by law to proceed in behalf of the two county judges.

Thereupon, on September 16, 1913, the relators instituted this proceeding in this court, having for its object the enforced surrender of said books by respondent to them. Upon the return being filed and the issues of fact raised,- this court appointed Hon. Ralph Wammack of Bloomfield commissioner to take testimony and to report the same with his findings of fact, which he has done.

The report of the special commissioner discloses,, in addition to what has already been stated, that on June 7, 1913, the petition to the State auditor requesting him to make an examination and audit of the books, and papers of the several officers of Scott county, as provided by law, was circulated and on the following-day sent to the State auditor and received by him on the morning of June 9', 1913, and that he, anticipating-the circulation of said petition, on June 7th appointed an examiner and sent him to Scott county to be in réadiness to make the examination should said petition be signed and filed with him; that on the morning of' the 9th of June, the said examiner, being then at Benton, the county seat of Scott county, was advised by the State auditor, before any demand was made upon the officers of the county by the county court, that the-required petition was then upon file in the State auditor’s office; thereupon the examiner proceeded to take charge of the books and papers to make an audit of the same, and thereafter ah audit of the books and papers pertaining to the various officers of the county was made in pursuance of the proceedings thus instituted by the State auditor on June 9th. Some time-prior to the date of the petition of the taxpaying citizens one of the judges, other than the presiding judge of the county court, had been in correspondence with the State auditor relative to an examination of the county books by him.

On October 6, 1913, the special accountant sought to be employed by the county court requested the surrender of his bond, which request was granted and his bond ordered returned to him. On the following day the county court allowed the account of the examiners from the State auditor’s office, with the exception of a few small items and except the entire account of the examiner who was sent there on the 9th of June, stating that “the court takes the position that Mr. Clay when directed to come to Benton, there was then no petition from the taxpayers of Scott county, in the hands of State auditor, and performed no service in said examination.”

The relators insist that on the morning of June 9th the examiner from the State auditor’s office was not properly in charge of the books, that the petition' of the taxpayers was not then in the State auditor’s office; but the finding of the commissioner, which is amply justified by the testimony, disclosed that it was. We think that it is a matter of no importance that the examiner may have been sent there prior to the date when the petition was received at the State auditor’s office because the authority of the parties hereto must be determined as of June 9th, when the controversy arose. The State auditor had authority to appoint an examiner on June 7th irrespective of any petition, as his appointment was not specifically for this particular work, and when he was at the county seat of Scott county on the 9th and the petition being then properly on file in the State auditor’s office, the State auditor had the authority to order him to proceed, which he did, with the examination of the books in pursuance of the petition and he had possession of the books for the purposes of examination at the time the county court sought to obtain them.

The relators contend that by virtue of the proviso* at the conclusion of section 3781, Revised Statutes of 1909, that the county court is .entitled to possession of the books' of the county officers upon its request therefor as against any examiner sent by the State auditor in possession of the books and acting under said Act of 1913. On the other hand, the respondent insists that the Act of 1913 repealed by implication the above proviso in said section 3781 and also raises the point that mandamus will not lie under the facts in this case.

Since where the county or a State officer is a party to a suit we have no appellate jurisdiction (Constitution, section 12, article 6, made applicable to additional court of appeals by section 4, article 6, Amendment of 1884) and consequently no original jurisdiction (State ex rel. v. Social Club, 169 Mo. App. 137, 148) and both are indirectly, if not directly, involved here, we deem the prudent course to pursue i§ to not discuss this phase of the controversy since there are other points involved that are as equally decisive of the case.

The relators assume that the proviso to Section 3781 and the Act of 1913 must both stand and, that being true, that it necessarily follows that the county court may, which we do not decide, proceed when it sees fit to an examination of the books of the county officers and also that the State auditor has the authority upon the proper preliminary request therefor to likewise proceed to an examination of the books and to establish a uniform system of accounting, and such being the situation, on the theory of the relators, it becomes essential only that we ascertain and determine whether or not the State auditor had proceeded upon a petition of the taxpayers and had the books in his possession before the county court demanded the same of the respondent and if so to decide whether the county court is entitled to maintain a proceeding of this character to compel the officer to surrender the books to it.

It appears to us, the facts being as above found, that a statement of the proposition suggests its own answer. The authority of the State auditor to make an examination of the county books, we consider evident, and assuming that the county court also retains the power to‘do so, it would evidently be improper to say that when either had proceeded upon this examination and had the books in charge for that purpose, that any court should interfere and dispossess the party rightfully in possession of such books. To hold otherwise would be making a farce of the administration of the county affairs and the laws of this State and trifling with the county officers. If the county, as the relators contend, possesses the authority there: for, jt may, after the State.auditor completes his work, proceed with such an examination as it desires to make. There is no showing or suggestion here that after the State auditor had completed his work that the respondent would have resisted any effort on the part of any of the judges of the county court, or of any accountant employed by it, to examine his books. It also appears from the report of the commissioner that the examination made by the State auditor, a copy of which is required by the Act of 1913: to be filed with the county court, was entirely satisfactory and the expense thereof, with a few minor exceptions not affecting the merits of the case, was paid by the county court and we are unable to understand the necessity for this court ordering the respondent to do a useless thing.

According to the State auditor’s testimony his work was completed in from thirty to forty-five days after it was begun, so that the reason assigned by the respondent for not delivering the books to the relators on June 9th did not exist for over a month prior to the institution of this action, and there is no proof that any other demand was made upon him for the books; consequently, as we have held that at the time the demand was made the respondent was justified in then refusing to surrender the books, assuming relators’ construction of the effect of the Act of 1913 to be correct, and since a subsequent period elapsed thereafter and before the filing'of the suit, when this condition was removed, it was then incumbent upon the relators, before instituting this suit, to renew their demand. [State ex rel. v. Lesueur, 136 Mo. 452, 459, 38 S. W. 325; State ex rel. v. Associated Press, 159 Mo. 410, 421, 60 S. W. 421; State ex rel. v. Adcock, 225 Mo. 335, 364, 124 S. W. 1100.]

It follows that the peremptory writ should be denied at the cost of the relators, except relator Frazer, over whose protest the proceedings were instituted, and it is so ordered.

Sturgis, J., concurs. Farrington, J., concurs and files a separate opinion.