It is not without reluctance that I am unable to concur in the majority opinion, but deeming the result there reached as not sustained by the cited previous decisions of this court, nor on an analysis of general principles of law applicable to the facts of the case. I shall, as briefly as possible, state the grounds of my dissent.
The books are replete with definitions of the terms "officer" and "public office." and the adjudicated cases illustrate the wide range taken in their application. It is perfectly apparent that employment and agency are distinguishable from public office, but the line of demarcation between them is sometimes difficult of perception. As aptly expressed by the writer of the opinion in State ex rel. v. Jennings, 57 Ohio St. 415, 49 N.E. 404. "It is easier to conceive the general requirements of such an office, than to express them with *Page 1028 precision in a definition which shall be entirely faultless." However, the rule heretofore adopted by this court by which the status of a questioned functionary may be determined as that of an employee or officer is correctly stated in the majority opinion and my dissent arising from what I conceive to be a misapplication of that rule under the facts in the case at bar.
In State v. Valle, 41 Mo. 30, it was held that if an officer receives his authority from the law, and discharges some of the functions of government, he will be a public officer. In the case of State ex rel. v. Bus, 135 Mo. 325, 36 S.W. 636, which was a proceeding in quo warranto to oust respondent from the office of school director on the ground that by his subsequent acceptance of the position of deputy sheriff, the office of director became vacant, this court, speaking through MACFARLANE, J., held: "A public office is defined to be `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.' [Mechem, Pub. Offices, 1.] The individual who is invested with the authority and is required to perform the duties is a public officer.
"The courts have undertaken to give definitions in many cases, and while these have been controlled more or less by laws of the particular jurisdictions, and the powers conferred and duties enjoined thereunder, still all agree substantially that if an officer receives his authority from the law and discharges some of the functions of government he will be a public officer. [State v. Valle, 41 Mo. 30: People ex rel. v. Langdon,40 Mich. 673; Rowland v. Mayor, 83 N.Y. 376; State ex rel. v. May,106 Mo. 488.]
"Deputy sheriffs are appointed by the sheriff, subject to the approval of the judge of the circuit courts; they are required to take the oath of office, which is to be indorsed upon the appointment and filed in the office of the clerk of the circuit court. After appointment and qualification they `shall possess all the powers and may perform any of the duties prescribed by law to be performed by the sheriff.' [R.S. 1889, secs. 8181 and 8182.]
[1] "The right, authority, and duty are thus created by statute; he is invested with some portions of the sovereign functions of the government to be exercised for the benefit of the public, and is, consequently, a public officer within any definition given by the courts or text writers. . . . The power of appointment comes from the State; the authority is derived from the law; and the duties are exercised for the benefit of the public. . . . Whether a public employment constitutes the employee a public officer depends upon the source of the powers and the character of the duties. . . ."
That doctrine has been expressly approved by this court in the *Page 1029 following cases: State ex inf. v. Whittle, 333 Mo. 705,63 S.W.2d 100, concurrently decided herewith; State ex rel. v. Harter et al., 188 Mo. 516, 87 S.W. 941; Gracey v. St. Louis,213 Mo. 384, 111 S.W. 1159; State ex rel. v. Hamilton et al., 240 S.W. 445; State ex rel. Zevely v. Hackmann, State Auditor, 300 Mo. 59,254 S.W. 53, and Hastings v. Jasper County, 314 Mo. 144,282 S.W. 700. The latter case involved the question as to whether a probation officer appointed under Chapter 21, Article VI, Revised Statutes 1919, was a public officer. An examination of that statute discloses that the person appointed under its provisions was not, by the terms of such statute, either required to give bond, or take an oath, but on the authority of State ex rel. v. Bus, supra, and cases there cited, such appointee was held to be a public officer.
The most general distinction of a public office is pointed out in Mechem Public Officers, section 4, as follows: "The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit."
The character of a position, as official or unofficial, is not to be determined by its importance or dignity, nor by thequantum or extent of authority conferred thereunder. It is stated in Throop on Public Officers, page 2, paragraph 2, "And he is not the less a public officer where his authority is confined to narrow limits, because it is the duty of his office and the nature of that duty which makes him a public officer, and not the extent of his authority." And to the same effect was the holding of the Kansas City Court of Appeals, in State ex rel. v. Gray,91 Mo. App. 438, l.c. 443, in an opinion by ELLISON, J., as follows: "However, the generality of the definition of a public office and the difficulty of distinguishing in many cases between a mere employment and an officer, has led to much litigation on the question. The fact that a position in the public service may be inconsequential and its honor not much sought, does not prevent its being a public office. Thus, a deputy constable is a public officer, for to him is granted a portion of important sovereign power of the executive branch. So is a school director for he may, among other things, levy taxes."
That notaries public are public officers, the authorities are all in accord. [20 R.C.L. p. 326, par. 2; Wilson v. Kimmel,109 Mo. 260, 19 S.W. 24.] And so it has been held by this court that a ward or township committeeman of a political party is a county officer (State ex rel. v. Hamilton, 240 S.W. 445. l.c. 448), and that while his *Page 1030 official duties pertain only to the management of party affairs, still they affect the welfare of the entire community, and he exercises some of the functions of government (State ex rel. v. Falkenhainer, Judge, 321 Mo. 1042, 15 S.W.2d 342), that the superintendent of streets, by appointment of the Mayor of Kansas City, subject to the confirmation of the common council, is an officer, and not a mere employee of the city (State ex rel. v. May, 106 Mo. 488, 17 S.W. 660); and that a deputy elevator inspector appointed under the ordinances of the city of St. Louis is a public officer (Gracey v. St. Louis, 213 Mo. 384, 111 S.W. 1159).
In the case of Gracey v. St. Louis, supra, it was held that plaintiff, a deputy elevator inspector, was a public officer, notwithstanding the ordinances under which he was acting provided that the inspector was "authorized to employ, by and with the consent of the mayor, five deputy inspectors." Judge LAMM, speaking for this court, in disposing of the contention that plaintiff was a mere employee, said: "It appears, then, that whether our conclusion be drawn from a view of general principles of law, or (more narrowly) be based on a close analysis of the ordinances of defendant city, we must hold plaintiff was an officer of the city of St. Louis. And this although the word `employ' is used in Section 2197. The word is of wide meaning,and taken with its context, conveys the idea of selecting andintrusting with a duty." [l.c. 394 — Italics ours.]
Under the decisions and the general principles applicable to the question, it is clear an attorney would not be a public officer merely because he had been appointed or employed by some public official under authority of law to represent the latter in the discharge of his official duties, and even to bring suits according to prescribed rules of law. As illustrative of such rule, the following are cases in point:
In Adams v. Murphy, 165 F. 304, 91 C.C.A. 272, an act of the National Council of the Creek Nation authorized the principal chief "to contract with, retain and employ an attorney at law, or firm of attorneys at law," to represent the Nation and its members, and provided that the contract should be subject to cancellation on thirty days' notice for good cause shown. The Circuit Court of Appeals for the Eighth District said: "It seems to us that both the statute and contract leave little room for doubt on this point. The statute authorizes the principal chief `to contract with, retain and employ an attorney at law or firm of attorneys at law.' This is wholly incompatible with the idea of office. A firm of attorneys could not hold an office. The statute also provides that the contract shall be subject to cancellation. If it had contemplated the employment as giving rights to an office, it would have made provision for the removal of the occupant from office. The statute simply conferred authority upon the principal chief to make the *Page 1031 contract. It did not direct him to appoint an officer, and the person whom he employed derived his rights from the contract and not from the statute."
In State ex rel. Seymour v. Gilfillan, 15 Ohio Dec. 756, a statute authorized the several county courts of Ohio to appoint a "tax inquisitor" whose duty it should be "to make inquiry and furnish the auditor the facts as to any omissions of property for taxation and the evidence necessary to authorize him to subject to taxation any property properly omitted from the tax duplicate." He was paid a percentum on taxes collected which had been improperly omitted from the tax list, as might be agreed with the county commissioners. The court said: "He is an employee. He is an aid to the taxing officer. His duties arise out of contract; and his employment is dependent for its duration, its extent and character upon the terms of the contract, and is for a definite and particular purpose."
In Fisher v. City of Mechanicville, 225 N.Y. 210, 121 N.E. 764, the act incorporating the defendant village provided with regard to a village attorney: "It shall be the duty of the board and it shall have the power and authority. . . . to appoint annually an attorney and pay such attorney a reasonable annual salary." The plaintiff was appointed city attorney by the village board for one year at a salary of $750. A few months thereafter the village was incorporated as a city, thereby terminating all public offices under the village charter. The plaintiff sued for his salary claiming he was not a public officer but an employee and was entitled to his salary under his contract of employment. The New York Court of Appeals said: "The act incorporating the village contains a list of village officers, and the village attorney is not named therein. No provision is made in the act requiring the village attorney to take an oath of office. Neither is there any provision specifying the duties which the village attorney shall perform, and the fact is found that he does not perform any governmental duties. I think, therefore, that the plaintiff as village attorney was not a public officer but rather that he was an employee of the village."
[2] There is also another line of cases, which I think are here applicable, holding that those persons who by authority of law are entrusted with the receipt of public moneys, or through whose hands money due to the public, or belonging to it, passes on its way to the public treasury are public officers. In Commonwealth v. Evans, 74 Pa. 124, the Legislature of Pennsylvania, conceiving there might be due that state from the United States "various amounts for disbursements made during the rebellion" adopted a joint resolution authorizing the Governor "to appoint a special agent to collect the disallowed and suspended claims of the state against the United States, whose compensation for that purpose shall not exceed ten per centum *Page 1032 of the amounts thus collected, and shall be paid out of such collections." The Governor appointed the defendant, who made certain collections. Having failed to pay them into the treasury, the state sued him therefor, in one count charging the money had been collected by the defendant in his professional capacity as attorney in fact and agent; in a second count alleging the money had been received by him as a public officer; and in a third count on an account stated. The statute of Pennsylvania abolishing imprisonment for debt excluded from relief persons receiving money as officers or in any professional employment. The defendant contended he was not engaged in either of these capacities, but merely as a "special agent." The Supreme Court of Pennsylvania held he was a public officer, saying: "But we are of the opinion that all persons who, by authority of law, are entrusted 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 that appointment, and whether the service be special or general, transient or permanent."
In State ex rel. Swearingen v. Jones, 79 Fla. 56, 84 So. 84, the Legislature of Florida created a commission to be known as the Florida Purchase Centennial Commission, to be composed of five designated persons. The commission was authorized to act for the State in asking for, receiving and handling Federal appropriations for an exposition and in other ways to receive, handle and disburse money. Citing and quoting the above definition of a public officer appearing in the Evans case from Pennsylvania, the Supreme Court of Florida held the members of the commission were public officers. And since they had been nominated in the act, whereas the Constitution of Florida provided that all state and county officers should be elected by the people or appointed by the Governor, it was held the whole act was unconstitutional and void.
The same doctrine was applied in a later Florida case. In Dade County v. State, 116 So. 72, the Legislature had passed a law creating a commission composed of specified persons to build a sea wall or otherwise protect the ocean front of Dade County in the city of Miami Beach. The act authorized the commission to receive, handle and disburse money. On authority of the Jones case just summarized, and the Evans case from Pennsylvania, and following the definition of a public officer given in those cases, the act was declared unconstitutional because the Legislature had named the members of the commission instead of providing for their appointment by the Governor or election by the people.
[3] It will be observed that the statute (Sec. 9952, R.S. 1929, Sec. 9952. Mo. Stat. Ann. p. 7993) provides that for the purpose of collecting delinquent taxes and prosecuting suits, the collector shall *Page 1033 have power to employ attorneys. The authority of the attorneys is not limited to the prosecution of the suits but extends to the collection of the taxes. They are to receive ten per cent of the amount of taxes actually collected and an additional sum where suit is brought. The concluding provision of the act, applicable to cities of 30,000 or more inhabitants says an attorney or attorneys shall be appointed "for the purpose of prosecuting suits for taxes." It does not say for the collection of taxes. But in fixing the compensation it provides the attorney shall be entitled to a fee not exceeding a specified maximum, as may be agreed upon. "after judgment is obtained, collected and paid into the treasury." On taxes paid before judgment "the attorney collecting the same" receives not exceeding two per cent.
It is, furthermore, well known that the general practice in Missouri under the statute for years has been that tax attorneys collect back taxes just as they would accounts for private clients — without suit, if possible. And would it be said that in such instances if the tax attorney should appropriate the money to his own use he could not be prosecuted for embezzlement of public funds under Section 4086. Revised Statutes 1929?
Since the part of the statute applicable to counties, at least, provides for the employment of attorneys for the purpose of collecting taxes and specially fixes a compensation for that service, it seems to me we are bound to say these attorneys are authorized to receive and pay over the money they collect. The word "collection" ordinarily has a broader meaning than merely to enforce payment of an amount due. [Words and Phrases, First, Second and Third Series; State ex rel. v. Moeller, 48 Mo. 331.]
Indeed, if the statute had not provided tax attorneys for counties should be employed "for the purpose of collecting" taxes, and their express authority had extended only to the prosecution of suits for taxes (as is the case with the attorneys for cities mentioned in the concluding proviso of Sec. 9952) they would still be authorized by law to collect and receive the money sued for. In Carroll County v. Cheatham, 48 Mo. 385, the following is held, quoting from the head note, which correctly reflects the ruling of the opinion: "In suit by a county for the collection of money, payment may be made by defendant to the lawfully authorized agent and attorney of the county, without proof of any special authority conferred upon the attorney to institute the suit. He was warranted in receiving the money sued for as in other cases."
The suit in that case was for money which had been loaned out of the county school fund, and the opinion says the conclusion it reaches is not in anywise affected by the fact that the statute covering the handling of that fund (R.S. Mo. 1855, ch. 143, art. II. sec. 25) provided "the principal and interest on all loans shall be paid into the county treasury of the county in which the loan is made; *Page 1034 and when any money shall be so paid, it shall be the duty of the treasurer to give the person making the payment, duplicate receipts therefor."
[4] That a tax attorney is the "lawfully authorized" attorney of the State, or county, rather than of the county collector who appointed him, seems clear to me. As shown in the principal opinion, the real party in interest in tax suits is the State, not the county collector, and if the latter retires from office it is not necessary to substitute his successor as plaintiff. [State ex rel. Kerstner v. Sanford, 127 Mo. 368, 371, 30 S.W. 112.] This being true, tax attorneys are public officers within the definition of the Pennsylvania and Florida cases.
The majority opinion holds that the functions exercised by the back tax attorney are not independent of the duties of the collector with respect to the matter of enforcing the collection of back taxes, and on the authority of State ex rel. v. Board of Commissioners (Ohio), 115 N.E. 919, and similar cases cited, relator is held to be an employee, and not an officer. The opinion in the Ohio case does give prominence to the fact that a public officer is one who exercises, in an independent capacity, a public function in the interest of the people, by virtue of law, which, as pointed out in State ex rel. v. Jennings,57 Ohio St. 415, 49 N.E. 404, "is only saying in another form, that he exercises a portion of the sovereignty of the people delegated to him by law." In State ex rel. v. Board of Commissioners, supra, the question was as to whether the clerk of the board of county commissioners was an officer, and it was held it was the members of the board who were clothed with the sovereign power of the State, and that the duties of the clerk were incidental thereto, and purely clerical; that he was the amanuensis of the board, and it was his duty to record its proceedings; that he had "no police power, no power affecting public obligation, financial or otherwise, and he does not represent the public in the slightestcapacity in any transaction involving it and the individual." (Italics ours.)
[5] The principal opinion ignores and overlooks what seem to me to be certain attributes of sovereignty of the State which, I think, pass to the back tax attorney under the statutes providing for his appointment and governing the performance of his duties thereunder. The exercise of the power of taxation consists of two distinct processes — the one relating to the levying or imposition of the taxes on persons or property; the other to the collection of the taxes levied. [26 R.C.L. sec. 2, p. 14.] The appointment, or designation of a back tax attorney can be made by the collector only with the consent and approval of the county court, and the compensation he shall receive therefor, called fees, is likewise subject to approval of the county court. Clearly, his authority is derived from the law. The form of actions to be brought, the manner in which the same shall be prosecuted, *Page 1035 as well as what the petition and accompanying tax bill shall contain are all governed by statute. [Sec. 9953.] The time for bringing such suits, the time in which the same shall be tried, and the nature of the judgment to be rendered are likewise fixed by law. [Secs. 9945, 9949, 9956 and 9957.] Moreover, it has been held that no means can be resorted to, to coerce the payment of taxes, other than those provided by statute. [State ex rel. v. Goodnow, 80 Mo. 271.] And in actions for the recovery of delinquent taxes, the State, and not the collector at whose relation the suit is brought, is the real party in interest. [State ex rel. v. Sanford, 127 Mo. l.c. 371, 30 S.W. 112.]
In consequence of the statutes mentioned it becomes the duty of the attorney to determine what facts must be pleaded to state a cause of action; to determine who are proper and necessary parties; to determine the sufficiency of the back tax bill, as well as its certification; to determine when orders of publication are necessary and the sufficiency of the same when made. These and other duties devolve upon the attorney by force of the statutes respecting the collection of back taxes, and do not arise out of contract.
As above pointed out, the State, and not the collector, is the real party in interest; that the attorney may collect the taxes with or without suit, and give acquittances therefor. Can it be said that in the performance of the duties enumerated above he is not acting for the public? That in so doing he is not acting to a large extent upon his own independent judgment, and not in the performance of ministerial duties devolving upon him through a superior? These questions seem to me to answer themselves. I think for twenty-five years this court has regarded his status as that of an officer; at least such is the plain inference to be drawn from the holding in Walker v. Mills, 210 Mo. 684, 109 S.W. 44. Defendant in that case contended that the back tax attorney, who purchased the lands in suit at a tax sale under a judgment rendered on constructive service, had no right to purchase thereat. It was held, "There are many respectable and forceful cases holding that a public officer whose duty it is to collect taxes cannot purchase at such sale. Such, however, is not the rule in Missouri. [Citing cases.]"
This court, in construing the statutes here under consideration in King v. Maries County, 249 S.W. 418, 297 Mo. 488, held the same to constitute "the scheme of the State to be pursued by the county officials in the collection of back taxes by suit, or otherwise. Their duties are prescribed, and their compensation is fixed. Duties are imposed upon the county clerk, the county collector, and the attorneys employed by the latter. The county court has a supervisory control in fixing the compensation of the attorney, which must be agreed upon in writing, and cannot exceed the prescribed limit." Furthermore, it is a matter of common knowledge that the authorities *Page 1036 charged with the administration of the income tax laws, both Federal and State, have for years accepted and approved returns of back tax attorneys and assessments of such tax have uniformly been made on the basis of their status as officers, so it seems to me that what is said in the principal opinion with respect to the interpretation previously given the statute, and not departing therefrom except for cogent reasons may with equal or greater force be applied in support of relator's contention.
The office is an independent one. Its duties are not devolved upon the occupant by a superior, as ministerial duties may be devolved upon a deputy, but are imposed by the statute. [State ex rel. v. Brennan, 29 N.E. 593.] I think a portion or segment "of the sovereignty of the State filters through the meshes of the statute" and invests the incumbent with the power and duty to exercise such independent functions as to constitute him a public officer, and so I respectfully lodge my dissent. Ellison andTipton, JJ., concur.