State Ex Rel., Pickett v. Truman , 333 Mo. 1018 ( 1933 )

^* NOTE: Opinion filed at May Term, 1933, August 23, 1933; motion for rehearing filed; motion overruled at September Term, October 19, 1933. By an instrument in writing dated October 20, 1931, and duly approved by the County Court of Jackson County, Missouri, the collector of revenue for said county did "employ James F. Pickett of Jackson County, Missouri, as attorney to institute and prosecute all suits for the collection of taxes which are now and shall become delinquent during his present term of office against land or real property located in Range 33, Jackson County, Missouri, said James F. Pickett as such attorney, to receive as compensation for his services ten per cent (10%) of the amount of taxes actually collected and paid into the treasury on suits instituted by him, and an additional sum of Three ($3.00) Dollars for each suit instituted for the collection of such tax where publication is not necessary, and Five ($5.00) Dollars for each suit where publication is necessary."

More than a year thereafter, to-wit, on the 13th day of January, 1933, Mr. Pickett, conceiving that he was a public officer, filed petition herein for our writ of mandamus to compel the presiding judge of the county court of said county to administer to him the oath of office prescribed by Section 6 of Article XIV of the Constitution of Missouri, at the same time filing stipulation signed by him and counsel for said presiding judge waiving the issuance and service of the alternative writ, fixing time for filing respondent's return and relator's motion for judgment on the pleadings, fixing time for filing abstract of the record and briefs, and waiving oral arguments, relator's obvious purpose being to obtain an early decision from this court holding that he is a public officer. The stipulation was complied with and the case has quite recently come to this writer on reassignment.

In his return respondent admitted that he was the presiding judge of said county court; that by said instrument in writing relator was appointed delinquent tax attorney by virtue of Section 9952. Revised Statutes 1929, as alleged, and that said county court by an order entered of record approved the appointment so made; that an attorney so appointed "is authorized and empowered to institute suits in courts of competent jurisdiction in the county where real estate is situated for the collection of real estate tax and for the enforcement of the State's lien in the collection of said tax;" that "by virtue of Article 14. Section 6, of the Constitution of the State of Missouri all officers are required to subscribe to an oath of office to support the Constitution of the United States and of this State;" that relator has requested respondent to administer such oath to him and respondent has refused to do so. In his return respondent also denied that relator was an officer within the meaning of the Constitution and laws of this State, and alleged that for that reason he refused to administer the oath of office to relator.

[1] Numerous criteria, such as (1) the giving of a bond for faithful performance of the service required, (2) definite duties imposed by law involving the exercise of some portion of the sovereign power, (3) continuing and permanent nature of the duties enjoined, and (4) right of successor to the powers, duties and emoluments, have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. [46 C.J. p. 928, sec. 19. n. 1; 53 A.L.R. p. 595.] It is the duty of his office and the nature of the duty that makes one an officer and not the extent of the authority (Mechem on Public Officers, p. 7, sec. 9; Throop on Public Officers, pp. 2, 3, sec. 2), although designation by the law has some significance. [46 C.J., p. 931. sec. 24; State ex rel. v. Gray, 9] Mo. App. 438, 445; State ex rel. Cannon v. May, 106 Mo. 488, 505, 17 S.W. 660; State ex rel. v. Shannon, 133 Mo. 139, 164 33 S.W. 1137; Gracey v. St. Louis, 213 Mo. 384, 393, 394, 111 S.W. 1159.]

[2] In Mechem on Public Officers, pages 1 and 2, section 1, it is said: "A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer." We have approved this definition in State ex rel. v. Bus, 135 Mo. 325, 331, 332, 36 S.W. 636; State ex rel. v. Hackmann, 254 S.W. 53, 55, 300 Mo. 59; and Hasting v. Jasper County, 282 S.W. 700, 701, 314 Mo. 144, and it appears to be in harmony with the great weight of authority. [State ex rel. v. Bond (W. Va.), 118 S.E. 276, 278, 279; State ex rel. v. Board of Commissioners (Ohio), 115 N.E. 919, 920; Bunn et al. v. People ex rel., 45 Ill. 397, 409.] The Ohio decision states that it is no longer an open question in that state that to constitute a public office "it is essential that certain independent public duties a part of the sovereignty of the State, should be appointed to it by law." Illustrative of what is meant by "sovereignty of the State." in the same opinion it is said: "If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the State, if the appointee is invested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or State, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the State."

[3] With the foregoing principles in mind we now turn to certain statutes cited and relied upon by relator. Pertinent provisions of Section 9952, Revised Statutes 1929, providing for the employment or appointment of attorneys by collectors in their enforcement of the payment of taxes appearing in the back tax books against real estate are as follows:

"If, on the first day of January of any year, any of said lands of town lots contained in said ``back tax book' remain unredeemed, it shall be the duty of the collector to proceed to enforce the payment of the taxes charged against such tract or lot by suit in a court of competent jurisdiction of the county where the real estate is situated, which said court shall have jurisdiction, without regard to the amount sued on, to enforce the lien of the state or such cities; and for the purpose of collecting such tax and prosecuting suits for taxes under this article, the collector shall have power, with the approval of the county court, or in such cities, the mayor thereof, to employ such attorneys as he may deem necessary, who shall receive as fees such sum, not to exceed ten per cent of the amount of taxes actually collected and paid into the treasury, and an additional sum not to exceed $3,00 for each suit instituted for the collection of such taxes, where publication is not necessary, and not to exceed $5.00 for each suit where publication is necessary, as may be agreed upon in writing, and approved by the county court, or in such cities, the mayor thereof, before such services are rendered, which sum shall be taxed as costs in the suit and collected as other costs, and no such attorney shall receive any fee or compensation for such services except as in this section provided;" etc.

(In the latter part of this section is a proviso relating to cities of thirty thousand or more inhabitants wherein such attorney is referred to as "appointed" by the collector, while earlier in the section the word "employ" was used. We think no distinction in meaning was intended. Both terms convey the idea of selecting and intrusting with a duty. See Gracey v. St. Louis,213 Mo. 384, 394, 395, 111 S.W. 1159.)

Sections 9945 and 9949. Revised Statutes 1929, cited by relator, provide when delinquent taxes against real estate shall be placed on the "back tax book" and how such real estate may be redeemed. Sections 9953, 9957 and 9956, Revised Statutes 1929, cited by relator, provide how suits commenced by collectors to enforce the payment of such taxes shall be prosecuted, when triable, and form of judgment rendered and execution issued thereon if against defendants.

It will be observed that in none of the above statutes is such attorney denominated an officer or his position an office, as was the case in Hasting v. Jasper County, 282 S.W. 700, 701,314 Mo. 144, cited and relied on by relator. Furthermore, in the Hasting case, which was an action by a probation officer for his salary, it appears that the statute authorizing his appointment (Sec. 2599, R.S. 1919) vested in him "all the power and authority of sheriffs to make arrests and perform other duties incident to their office." and the authority and duty so conferred upon him by law clearly vested in him "some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Also, Sections 9883, 11505, 11535 and 11651. Revised Statutes 1929, cited by relator and concerning the county collector, sheriff, recorder, and clerk of Supreme Court, respectively, designate such persons as officers or the positions they fill as offices and in the same or other statutes each of such persons is required to give bond for the faithful performance of his duties.

In State ex rel. v. Bus, 135 Mo. 325, 332, 36 S.W. 636, cited and relied upon by relator, the statutes prescribing the manner of appointment and qualification of deputy sheriffs expressly required the oath of office to be indorsed on the appointment, and also stated that they "shall possess all the powers and may perform any of the duties to be performed by the sheriff," thus clearly evidencing that they, too, were "invested with some portion of the sovereign functions of the government." Relator also cites and relies upon State ex rel. v. Hackmann, 259 S.W. 53, 54, 300 Mo. 59. It will be noted that the opinion in that case did not receive the full concurrence of a majority of the court, and it appears from the separate opinion of Judge GRAVES, who concurred only in the result reached, that the decision rode off on the proposition that "the statute recognizes such an office under the State Board of Equalization, and fills that office."

In fact, none of the statutes relating to the attorney so employed or appointed by the collector invest him with any of the usual indicia of an office. They do not require the giving of a bond, they provide for no salary or fixed term of service, and it is evident that the emolument of a successor is dependent upon the execution of a new contract by the collector. Nor does such attorney in the discharge of his duties exercise any of the sovereign functions of the government. He has no public duties independent of the collector's duty to enforce payment of taxes, and for the faithful performance of this duty the collector alone is responsible to the State. In the language of Section 9952, supra, "it shall be the duty of the collector to proceed to enforce the payment of the taxes charged against such tract or lot, by a suit in a court of competent jurisdiction . . . and for the purpose of collecting such tax and prosecuting suits for taxes under this article, the collector shall have power . . . to employ such attorneys as he may deem necessary." etc. This and other sections provide how these suits shall be commenced and prosecuted and judgments rendered therein enforced, but there is no mention of independent public duties of the attorney so appointed. The suits are commenced and prosecuted at the relation of the collector who is the sole agent and representative of the State in the collection of taxes and to whom alone this function of government is intrusted.

It has been suggested that relator is intrusted by legal authority with the receipt of public money and that such function is a part of sovereignty. But there is no provision of law that any part of the taxes so collected shall pass through his hands. Indeed, the language of the statute indicates the contrary, for no part of his compensation comes out of the taxes collected. All of these are paid into the treasury. The attorney's right to fees does not accrue with the rendering of each act of service in a given case, but accrues as a whole after collection made or judgment rendered. State ex rel. McKittrick v. Bair, Collector,333 Mo. 1, 63 S.W.2d 64, and is taxed as other costs in the case. His duties do not extend beyond those of an attorney employed to prosecute a particular class of suits according to the forms prescribed by law for such litigation. If in the course of collection any taxes should be paid into his hands they might lawfully be received by virtue of the fact that he is the agent and attorney of record of the collector (Carroll County v. Cheatham et al., 48 Mo. 385), but not otherwise. The fact that in such suits the State is the real party in interest (Chilton v. Pemiscot County, 330 Mo. 468, 50 S.W.2d 645, 647; State ex rel. Kerstner v. Sanford, 127 Mo. 368, 371, 30 S.W. 112) does not alter the status of the collector as the sole agent of the State in the enforcement of the payment of taxes, or suggest that his attorney is an independent agent of the State invested with governmental functions. The clear implication of the statute providing for the appointment of such attorney is to the contrary. A person so engaged is an employee and not a public officer, and it matters not that such employment is under the direction of or in aid of the performance of some duties intrusted to one who is a public officer. [State Tax Commission v. Harrington, 126 Md. 157, 164, 94 A. 537; Adams v. Murphy, 165 F. 304, 91 C.C.A. 272; State ex rel. Seymour v. Gilfillan, 15 Ohio Dec. 756; Fisher v. Mechanicville, 225 N.Y. 210,121 N.E. 764.]

The instant case is readily distinguishable from cases involving the above-mentioned principle of the exercise of sovereignty growing out of the handling of public funds announced in 46 Corpus Juris, pages 928, 929, note 6 (b), such as Commonwealth v. Evans, 74 Pa. 124; State ex rel. Swearingen v. Jones, 79 Fla. 56, 84 So. 84; and Dade County v. State (Fla.),116 So. 72.

In the Pennsylvania case under a legislative resolution Evans was appointed by the Governor who issued and delivered to him an official commission under the great seal of the State. In like manner the Governor required of Evans a bond with two sureties running to the commonwealth and conditioned that the "above bounden George O. Evans, special agent as aforesaid, shall fully perform his official duties under said joint resolution." As stated in the opinion, "he certainly had official duties under the joint resolution, as his bond acknowledged which, when he accepted the position, he was bound to perform with fidelity." Under this resolution and appointment Evans was the sole agent of the commonwealth authorized to collect these claims. As suggested in the opinion, his position was quite analogous to that of a collector of public taxes. Consequently, there is no analogy between the position occupied by Evans and that of an attorney appointed by a collector of public taxes to bring suits for him. Our statutes clearly indicate that the county collector is the sole agency of the State in collecting the taxes. He would be liable on his official bond for any dereliction or malfeasance therein even by his attorney. It is true that prefatory to a discussion of the above matters in the opinion in the Evans case the court thus defined public officers: "But we are of the opinion that all persons who, by authority of law, are intrusted with the receipt of public moneys, through whose hands money due to the public or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, transient or permanent." However, the court's decision on this phase of the case, in the light of all the duties imposed upon Evans, is set forth on page 141 in the following language: "We think, therefore, that the moneys collected by Evans were moneys collected by a public officer within the exception of the Act of 1842, and the learned judge below ought so to have instructed the jury, and not that the defendant was entitled to a verdict in his favor on the second count of the declaration." The first statement, taken literally, is much broader than the facts ruled and the court's actual decision thereon, and is by no means persuasive. This general statement in the Evans case is referred to in the Swearingen case. However, that case was ruled upon facts showing that the parties were by statute expressly invested with governmental powers and the same situation appears in the Dade County case.

It is also urged that in Walker v. Mills, 210 Mo. 684, 689, 109 S.W. 44, 45, and in King v. Maries County, 297 Mo. 488, 498,249 S.W. 418, 420, we have treated delinquent tax attorneys as public officers. We do not so understand these decisions. When carefully read and considered they weaken rather than aid relator's contention.

Finally, as might well have been observed in the beginning, the long and as far as we know unvaried interpretation of the statute (Sec. 9952, R.S. 1929) as providing for the appointment of an employee and not an officer of the State is entitled to some weight and should not be departed from except for cogent reasons. [59 C.J., pp. 1027, 1028, notes 45, 48 and 49; Williams v. Williams, 30 S.W.2d 69, 71, 325 Mo. 963: Huntsville Trust Co. v. Noel, 12 S.W.2d 751, 754, 321 Mo. 749; Lefman v. Schuler,317 Mo. 671, 684, 296 S.W. 808.] For more than fifty years this law has been on the statute books in substantially its present form with respect to appointment of delinquent tax attorneys (Sec. 6836, R.S. 1879), and it remained for relator many months after his appointment to be the first to conceive and present the idea that such an appointee is a public officer. However, as above indicated, we find no cogent reasons to support this view, and it is a significant fact that diligent counsel on both sides have not presented a case in any jurisdiction where the exact question has even been raised.

On July 24, 1933, relator herein filed motion to dismiss this proceeding on the ground that "the 57th General Assembly of the State of Missouri passed a law (Senate Bill 94) which repealed Section 9952. Revised Statutes 1929, and abolishes the office of back tax attorney making the question involved in this case a moot question." The motion is evidently drawn on the theory that this law became effective on the day the motion was filed. Several days prior thereto an opinion written on the original assignment directing the issuance of our peremptory writ of mandamus was submitted to the court in banc and rejected. The effect of this action of the court was a decision that our peremptory writ should be denied and this opinion, written on reassignment, undertakes to state the reasons therefor.

Black's Law Dictionary defines a moot case as "one which seeks to determine an abstract question which does not arise upon existing facts or rights." It may be that even if relator's appointment had made him a public officer he could not now be sworn in as such. However, the single question presented and submitted here is whether his appointment made him a public officer, and we are by no means convinced that this question is moot. Relator alleged in his petition that "this matter affects every county in this State and is of general public interest to the taxpaying citizens of the State and affects the legality of the official acts of the back tax attorneys of the several counties in this State," and he is estopped to say that the question is moot merely because the law authorizing his appointment is now repealed. It is a matter of vital interest to the citizens of his and other counties and municipalities as well as to him and other delinquent tax attorneys to be advised whether their appointments made them public officers. Even if relator could now be said to have no interest in the legality of his acts performed under this appointment, nevertheless, the single question originally raised and submitted still obtrudes itself upon the existing facts and is of such public importance as to call for a decision of the case upon its merits. [State ex rel. Jones v. Wurdeman, 309 Mo. 408, 415, 274 S.W. 407.] The motion to dismiss is overruled.

For the reasons above stated our peremptory writ in mandamus is denied. Gantt, C.J., and Frank and Hays, JJ., concur:Leedy, J., dissents in a separate opinion: Tipton andEllison, JJ., dissent and concur in separate opinion of Leedy,J.