Abington v. Harwell

BECKER, J.

— Plaintiff sued the defendant below for $1268.58 as.for money had and received to plaintiff’s use. The .case was tried to a jury. At the close of the case the court directed a verdict for the defendant, and plaintiff appeals. *

The facts in the case may be briefly summarized as follows. On November 5, 1912, township organization was by a vote of the people adopted in Butler county, Missouri, and the defendant, J. R. Harwell, was thereafter, in March, 1913, duly elected to the office of township collector of Poplar Bluffs Township in said county. The question of discontinuing township organization was resubmitted to a vote of the people of Butler county at an election held November 3, 1914, at which election there were east “for township organization” 943 votes, and “against township organization” there were cast 1357 votes. The votes cast against “township organization” not being a majority of all the votes east at said election, the proper officers of the county declared the proposition of discontinuing township organization in said county defeated, relying'upon section 11745, Revised Statutes of Missouri. 1909, which provides that to carry a proposition to abolish township organization requires a “majority of all the votes cast at said election.”

On November 28, 1914, the Governor of Missouri having been advised of the result of said election, and believing that section 11745, in so far as it required a majority of all votes cast at a general election to discontinue township organization was unconstitutional, and that said section in so far as it attempts to confer on the county court the authority to appoint someone to fill the office of Collector of Revenue therein, was unconstitutional as being in contravention of section 9 of article 9 of the State Constitution, which provides that to carry such proposition at a general election it need only receive “a majority of all of the votes cast upon that question,” by virtue of the power and authority vested in him by section 5828, Revised Statutes of Missouri, 1909, and section 2 of article 5 of the Constitution of the State of Missouri, appointed and commissioned the plaintiff, Carl C. Abington, Collector of Revenue for said Butler county, a vacancy in said office having been created' by said election.

On December 1® 1914, the county court of Butler . county, believing it had the right to appoint the Collector of Revenue of Butler county to fill the vacancy in such office, acting under section 11745, Revised Statutes of Missouri, 1909, appointed Harry I. Duncan Collector of the Revenue of Butler county. Duncan immediately qualified, by filing his bond, which was accepted by the county court, and by taking the oath of office.

On December 1, 1914, the said Abington also presented. to the county court of Butler county his bond as Collector of the Revenue of said Butler county, said bond being in the sum of $120,000, which bond the county court refused to approve, the record of said court showing that its ground for refusing to approve such bond was that the county court had the right to appoint the Collector of Revenue and not the Governor of the State.

On December 17, 1914, said Abington executed a new bond in the sum of $125,000 upon the ruling- of the State Auditor of .Missouri to the effect that the bond of the Collector of Revenue of Butler county should be in a sum not less than $123,000. This latter bond filed by said Abington was eventually approved by the county court on April 15, 1915.

Some time during the month of December, 1914, a quo warranto proceeding was instituted by the Attorney-General of the State upon his own information, and not at the relation of any party, in the Supreme Court of the State of Missouri, against the defendant Harwell, said Harry I. Duncan, I. H. Barnhill, County Treasurer of Butler County, as well as eight other persons who had been elected township collectors in the county of Butler at the same election that Harwell had been elected. Harwell and the eight other township collectors had continued to use, hold and exercise their respective offices as township Collectors of the Revenue after the election of November 3, 1914, asserting their right to so continue on the ground that the proper officers of the county had declared the proposition of discontinuing township organization in Butler county to have been defeated in the election of November 3, 1914.

The quo warranto was brought by the Attorney-General for the purpose of determining the rights of the said Harwell, Duncan, et al., to the offices of township collectors and Collector of Revenue of Butler county. The Supreme Court in an opinion handed down April 2, 1915, held that section 11475 which required a “majority of all the votes cast at said election” to vote out township organization in a county which has once legally adopted it, is contrary to section 9 of article 9 of the Constitution which requires only a “majority of all the votes cast upon that question” to reject township organization and that to that extent the statute was invalid; therefore at the election of November 3, 1914, Butler county bad voted 'to discontinue' township organization. The Supreme Court further held that the county court had no power or authority to appoint a county collector, hut that duty devolved upon the governor in that so much of section 11745 as declared that in case township organization is discontinued “the county court shall appoint such county officers as is provided for by law for counties not under township organization” is contrary to the provision of section 9, article 9 of the Constitution declaring that in such cases “all laws in force in relation to counties not having township organization, shall immediately take effect, and be in force in such county,” and clearly contemplates that the general statute authorizes the Governor to fill vacancies in such county officer as that of county collector. The Supreme Court therefore held that Duncan had not been legally appointed to the office of Collector of County Revenue. It follows that the Supreme Court issued its writ of ouster as against said Duncan, Harwell, et al. [See The State ex inf. John T. Barker, Attorney-General v. H. I. Duncan, et al., 265 Mo. 26, 175 S. W. 940.]

During the interval from the 3rd day of November, 1914, the date of said election, and the 15th day of April, 1915, the date upon which said Abington’s bond as Collector of the Revenue of said county was approved, and up to the time the quo warranto proceeding in the Supreme Court was finally determined, the said Harwell continued collecting the revenue in said township and he retained the commissions allowed by law on all funds collected by him during said period of time, which fees amounted to $1268.58. For said fees plaintiff sued defendant below, and at the trial the court directed the jury to return their verdict for defendant. From the judgment rendered upon the directed verdict plaintiff appeals.

I.

It is earnestly contended by, appellant that the case of State ex inf. Barker, Attorney-General, v. I. H. Duncan, et al., supra, is decisive of this case in that it was therein held that the power and authority to fill the vacancy created by the vote of November 3, 1914, was vested in the Governor and as appellant had been appointed Collector of the County by the Governor under said decision, appellant is entitled to the fees sued for in this case.

An examination of that case, however, discloses that the information was by the Attorney-General on behalf of the State, and not at the relation of the appellant. Under such circumstances it was held, in an opinion written by WagNbe, J., in Hunter v. Chandler, 45 Mo. 453, that “the private rights of a third party claiming the office are not determined or passed upon. The State, acting through its law officers, does not establish the rights of private persons to an office; it only maintains its own dignity- and protects the public interests by ousting those who usurp or intrude into office and unlawfully exercise its franchises. Where a private person wishes to have his right to an office adjudicated, the statute points out the course to pursue. It provides that the information shall be proséeued at his relation and shall be proceeded upon in such manner as is usual in cases of quo warranto. . . . Had the Attorney-General proceeded with the information filed by him to a final determination, the judgment would have fixed the rights of the defendant to the office, but not those of the plaintiff. The plaintiff was no party to the record, the information was not at his relation and his title could not have been passed upon.” [See, also, State of Mo. ex rel. Jas. H. Vail, Relator, v. Geo. B. Clark, State Auditor, 52 Mo. 508; Mullery v. McCann, 95 Mo. 579, 8 S. W. 774; State ex rel. v. Gordon, 245 Mo. 12, l. c. 30, 31, 149 S. W. 638.] That is the precise situation before us. The information was not brought at the relation of plaintiff and he was not a party to the record and therefore his right to the office was not in judgment as such, and his title thereto was not passed upon in said quo warranto proceeding brought on the information of the Attorney-General.

The defendant’s answer, however, admits that plaintiff “was appointed Collector of Butler county, Missouri, on the 28th day of November, 1914, but denies that he qualified or took possession of said office until the 15th day of April, 1915,” and “that at the time said collections were made neither the plaintiff herein nor any other person had qualified as collector of the revenue of said county, as required by law;” such admission would make it unnecessary for plaintiff to- prove his right or title to the office if he were suing- for fees which had been collected on and after the 15th day of April, 1915, the date upon which defendant admits plaintiff qualified as collector of the revenue of the county, but the answer cannot in any view be construed as an admission on the part of the defendant that the plaintiff was the Collector of Revenue of said county for the period of time during which the fees sued for herein were collected by the defendant, namely from November 8, 1914 to February, 1915, but is a distinct averment to the contrary. In this connection we call attention to sections 11434 and 11440, Revised Statutes of Missouri, 1909, by which every Collector of Revenue shall, before entering upon the duties of his office, give bond to the State “to the satisfaction of the county court,” such bond to be executed in duplicate, one part thereof to be deposited and recorded in the office of the clerk of the county court, and the other part to be transmitted by the clerk to the State Auditor; the auditor, if he finds the bond to be made in conformity to law and the sureties satisfactory, “shall file the same in his office and immediately certify the fact thereof to the clerk of the county court, and if the auditor does not find the bond sufficient in law or the sureties satisfactory, he shall immediately return the bond to the clerk of the county court,” and “no tax book or lists shall be placed in the hands of the county collector until the auditor’s certificate, under the seal of the office, has been received by the clerk of the county court, showing that the collector’s bond had been received and filed in the auditor’s office.”

The first bond submitted to the county court, on December 2, 1914, by the appellant, was rejected by it on the ground that the Governor of the State had no authority to make the appointment but that under the Statute, section 11745, such authority was vested in the county court. It further appears that the first bond was not in sufficient amount, and on December 17, 1914, the appellant presented a new .bond to the county court which was finally approved on April 15, 1915; thereupon the tax book or lists were turned over to him. Prior to that time the defendant continued to act as Collector of the Revenue in his township under the authority of his election as,such, his successor not having been duly appointed and qualified.

In light of these facts we rule that appellant did not become de jure Collector of the Revenue of Butler county, Missouri, until on and after the 15th day of April, 1915, from and after which date he was entitled to the fees and emoluments of that office and it appearing that the fees sued for herein all having been collected prior to April 15,'1915, the learned trial judge properly directed the jury to return a verdict for the defendant. The judgment is accordingly affirmed.

Reynolds, P. J., and Allen, J., concur.