45 Mo. 75 | Mo. | 1869
delivered the opinion of the court.
The defendant had been sheriff and tax collector of Marion county, and on the 13th of June, 1865, he, as such collector, settled with the County Court, and the settlement was entered upon its records in the usual manner. In making this settlement the credits contained the following item: “By amount delinquent list allowed by County Court at date, $14,362.22.” This amount was credited to him upon his account of collections for the county revenue, and it was afterwards discovered that the total amount of delinquencies upon the levy for county taxes was only $5,967.72, and that the balance for which he had been credited consisted of the delinquent list for the State revenue, which balance should have been and was also credited to him in his settlement with the State auditor. Thus theMefendant received a double credit of over $8,000, once by the State correctly, and once by the county by mistake. '
The county commenced proceedings in the Circuit Court in the nature of a bill in chancery to correct this mistake, and recovered a judgment for the amount improperly retained and interest, amounting to $11,326. The matter is brought to this court through the District Court, by error, and the only defense made is that it is res adjudícala; that, as the County Court passed upon it judicially, its judgment is conclusive, and the county is without remedy.
This.settlement of accounts with collectors lacks one of the essential elements of ordinary judicial action, there being no parties litigant, no adverse interests to be adjusted, no one to bo heard but the officer: and it also possesses one of those elements, inasmuch as it is to be made and the accounts adjusted according to law. But so are all settlements and adjustments between parties. The rules that govern do not so much decide the question as the relation of the body, whether it is to adjust controversies between parties, or whether it represents one of the parties. In considering the duties of public officers, it is difficult, if not impossible, by general definition, to draw an exact line between judicial, ministerial, and executive action, so as to apply all the legal consequences to each, principally for the reason that when we go outside of the regular courts we speak only by comparison, and apply terms originally and generally applicable to entirely different proceedings, and also for the reason that many of their duties are of a mixed judicial and ministerial character. It is less difficult, however, in a specific case to say whether the action is so exclusively ministerial as to leave no discretion in the officer, or whether it is so exclusively judicial that the" action is final and can not be corrected, however gross its mistakes. In the case before us there was no mistake of law — as by giving the collector larger fees than he was entitled to, or by crediting as delinquent what he gave no lawful excuse for not having collected — but the gross blunder was inadvertently committed of adding the delinquency in the State revenue to that in the county revenue, and paying him both on behalf of - the county, and at the same time certifying the State delinquency to the State authorities, by means of which he again drew its amount from the State treasury. The blunder was not one of decision; the County Court never held that he was entitled to the State delinquency from the county; it did not know that it was included in his credits.
I do not find in our reports any adjudication upon this question, although remarks have been made by judges that indicate their view's. In Sparks v. Purdy, 11 Mo. 225, the act of the County Court condemned was declared to be a proceeding that “had none of the characteristics of a judicial one; there were no parties, no notice, no pleadings, no trial, no judgment.” In Hannibal and St. Joseph R.R. Co. v. Marion County, 36 Mo. 303, the County Court is spoken of as the agent of the county. In Sullivan County v. Burgess, 37 Mo. 300, in a suit to set aside a settlement with a treasurer for fraud, the judge declaring the opinion, after quoting State, to use, etc., v. Rowland, 23 Mo. 98, concerning settlement of estates, remarks that “ a settlement with a County Court is equivalent to a judgment, * * * and will only be set aside when impeached by a proceeding in the nature of a bill in equity for fraud.” Had this opinion been necessary to the decision of the case, I should regard it as good authority; but the court,' in order to decide the case before it, had no occasion to, and did not, distinguish between settlements with guardians and administrators and with county financial officers. In New York the board of supervisors settle with the county treasurer, and in Supervisors of Chenango v. Birdsall, 4 Wend. 453, the Supreme Court, per Marcy, held that the county was bound by a previous settlement and adjustment by compromise of a disputed matter, but that the treasurer was still holden for an item omitted by mistake in the settlement. The board were treated as the agents of the county, and the county as bound by their acts as agents. In Illinois, in Washington County v.
We hold, then, that the defendant in the case at bar, in making his settlement with the County Court of Marion county, settled and adjusted his claims and liabilities with the public agents of the county; that the entry upon the records of the court was not a judgment at law, but the record of the results of that settlement — a statement of his account, as adjusted between him and the county — and that any mistake in that settlement clearly proved is open to correction, and in the same manner as though it were made with an individual.
The judgment of the District Court is affirmed.