104 Mo. 61 | Mo. | 1890
— At the November election, 1884, John R. Reddick was elected collector of the revenue of Dent county, Missouri, and gave bond as such collector, and with the plaintiffs as sureties on said bond. His term of office expired March 7, 1887, at which time he was succeeded in office by one J. C. Welch, and he turned over to said Welch all the books of said office and never made any collections after said date. On the tenth of September, 1888, eighteen months after the expiration of Reddick’s term of office, John Walker, state auditor, issued a distress warrant against said Reddick and the plaintiffs as his sureties, for the sum of $3,132.21, together with a penalty of two and one-half per cent, per month on said sum from the seventh day of March, 1887, amounting at the date of the warrant to the sum of $1,500.
The warrant was as follows :
“ Statb or Missouri — ss.
“ The State of Missouri to the sheriff of the County of Dent, Greeting:
“ Whereas John R. Reddick, the collector of the revenue of the county of Dent, aforesaid, for the years
“ These are, therefore, to command you, in accordance with the provisions of this article, to levy and collect the sum of three thousand, one hundred and thirty-two dollars and twenty-one cents, the balance as aforesaid, ascertained to be due, and the said two and a half per centum a month from the seventh day of March, eighteen hundred and eighty-seven, aforesaid, of the goods and chattels and real estate of the said John R. Reddick and for want of sufficient goods and chattels and real estate to satisfy the aforesaid balance, together with the said per centum thereon, and the fees to the officer collecting the same, you are hereby commanded to levy the same upon the goods and chattels and real estate of James A. Headrick, John E. Organ, L. Judson, J. N. McMurtrey, G-. S. Dreckworth, A. H. Clark and H. B. Clark, the securities of the said John R. Reddick.
“You are, also, commanded, that after you have made such levy and collection, you pay the same into the state treasury within thirty days after its transaction,
“In testimony whereof, I, John Walker, state auditor of the state of Missouri, have hereunto set my hand and affixed the seal of the auditor’s office,. in the city of Jefferson, this tenth day of September in the year of our Lord eighteen hundred and eighty-eight.
“John Walker,
“ State Auditor.
“Received December 1, 1888.
“ J. L. Smith,
“ Sheriff of Dent County, Missouri.”
This warrant was placed in the hands of the sheriff of Dent county on the eleventh day of September, 1888, but nothing was done with it until the nineteenth day of February, 1889, when the real estate of these plaintiffs described in the petition, and of the value of $6,000, was levied on by the sheriff and was advertised for sale at the April term of the circuit court of Dent county, Missouri.
On the fourth day of April, 1889,. plaintiffs presented their petition to the circuit court praying for an injunction against the said sheriff enjoining him from enforcing said warrant against them and selling said real estate thereund er. A temporary injunction was granted, and the cause was continued until the October term, 1889, when, upon trial, the injunction was made perpetual and the sheriff forever restrained from selling the real estate of plaintiffs levied upon under said warrant.
The petition stated substantially the following facts : That Reddick was elected collector of the revenue of Dent county, Missouri, at the November election, 1884; that his term of office expired on the seventh day of March, 1887, at which time he was succeeded in office by J. O. Welch, to whom, at said last-mentioned
The petition then recites the issue of the distress warrant on September 10, 1888, by the state auditor against-the said collector and these plaintiffs for the sum aforesaid, its delivery to the sheriff, J. L. Smith, and that, under said warrant, the said sheriff had, on the nineteenth day of February, 1889, levied on the real estate of plaintiffs (describing it and giving its value), had advertised it for sale on April 4, 1889, at April term of the circuit court, and would sell the same to satisfy the demands of said distress warrant, unless-restrained therefrom by the court; that a sale of said lands so levied on by the sheriff under said warrant would cast a cloud on the title of plaintiffs therein and injure plaintiffs, and would be a legal wrong for which no adequate remedy could be had in damages; that the said distress warrant should not be enforced against these plaintiffs for various reasons therein stated, among which were the following: That no due process of law had been had against them in fixing the amount of Red-dick’s indebtedness to the state or as preliminary to the issuing of said distress warrant, and no opportunity
No proceedings as required by law were ever taken to enforce the amount due from said collector by distress warrant in due and proper time. No notice of any kind was given to these plaintiffs, of any indebtedness to the state until the tenth day of September, 1888, and they had no notice of any deficit upon such collections •until said last-mentioned time.
The county court of Dent county, Missouri, unlawfully and improperly extended the time of the final ■settlement of the said collector from the first Monday in March, until the first Monday in May, 1887.
The state auditor acted without authority of law in issuing the distress warrant at the time and in the manner issued, as well as for the amount of the same.
That a large portion, to-wit, the sum of $5,000 collected by said collector upon the tax of 1886, had been paid to the state.
It was further stated in the petition that plaintiffs were informed that a portion of the amount embraced in the warrant was claimed for taxes collected during the year 1885 ; and alleging substantially the same rea•sons why that should not be enforced against them, and ■closing by the statement that the state auditor . acted without authority of law in issuing said warrant at the time it' was issued, and for the amount thereof, and praying that the said, sheriff be enjoined and restrained from selling said real estate, and for other relief, etc.
The court on presentation of the petition granted a temporary injunction, and continued the cause until the ■October term, 1889, when the cause was tried. The defendants in their answer justified under, and relied upon, the distress warrant; otherwise their answer was in effect a general denial.
It was further shown that Reddick made ño collections whatever after he went out of office on the first Monday in March, 1887, and that two-thirds of all taxes collected by him for each year were collected prior to the last of December of such year.
The record of the county court was introduced, showing a term of court held on the first Monday in March of each year, 1886 and 1887, at each of which terms the settlement of the collector was continued until the May term of court; and that the settlement for 1885 taxes was made at the May term, 1886, and for 1886 taxes at the May term, 1887. It was also shown that the collector had paid on his collections, for 1886, $5,000, and for 1885, $4,500.
The court made the injunction perpetual, from which judgment the defendants have appealed to this court.
These statutory provisions are as follows : “ Sec. 6780. Every county collector and ex officio county collector, except in the city of St Louis, shall, on or before the fifth day of each month, file with the county clerk a detailed statement, verified by affidavit, of all state, county, school, road and municipal taxes, and of all licenses by him collected during the preceding month,- and shall, on or before the fifteenth day of the month, pay the same, less his commissions, into the state and county treasuries, respectively. It shall be the duty of the county clerk, and he is hereby required, to forward immediately a certified copy of such detailed statement to the state auditor, who shall keep an account of the state taxes with the collector.
“ Sec. 6781. If any county collector, or ex officio county collector, shall fail or refuse to pay the taxes and licenses into the state and county treasuries, as provided in the preceding section, he shall forfeit his commissions thereon, and in addition thereto shall pay a penalty of ten per cent, on the amount thereof, and it shall be the duty of the state auditor to issue a distress warrant for such state taxes and penalties within thirty days, as provided by law. It shall be the duty of the prosecuting attorney to proceed, within thirty days, to collect such county, school, road and municipal taxes, by suit on the official bond of such defaulting collector.
“Sec. 6782. Every county collector shall, on or before the fifteenth day of each month, pay to the state treasurer all state taxes and licenses received by him prior to the first day of the month, as provided in section 6780, and, upon the receipt of such money, the treasurer shall apply the same to the state interest fund to the extent of one-half of such fund charged on the
“Sec. 7566. All officers and others bound bylaw to pay money," directly into the state treasury shall exhibit their accounts and vouchers to the state auditor, on or before the first Monday in January in each year, to be audited, adjusted and settled, except the collectors of the revenue, who shall, immediately after their settlement with the county court on the first Monday in March in each year, exhibit their accounts and vouchers to the state auditor to be audited, adjusted and settled ;
“ Sec. 7567. If any of the persons mentioned in the preceding section shall fail to pay the amounts so found due into the treasury within thirty days after the settlement above required, the delinquent shall forfeit to the state the amount of the commission allowed him by law, and also-two and one-half per centum a month on the amount wrongfully withheld, to be computed from the time the same ought to have been paid until actual payment, and the auditor shall charge such delinquent accordingly.
“Sec. 7568. The auditor shall, immediately after such delinquency shall occur, issue a warrant of distress against such delinquent and his securities, directed to the sheriff of the proper county, or, if he shall be disqualified to act, then to the sheriff of some adjoining county, who is authorized and required to execute the same, and who, together with his securities, shall be liable on his official bond in the same manner, and to the same extent as if the writ were to be executed in his own county, stating therein the amount due and the penalties and forfeitures thereon accrued.
“Sec. 7569. The distress warrant may be in the following form:
“State of Missouri — ss.
“The state of Missouri to the-of the county of -, greeting: Whereas -, the collector of the revenue of the county of-aforesaid, for the year of our Lord eighteen hundred and--, hath failed and neglected to pay into the state treasury the full amount with which he stands charged on the books of the state auditor of the state of Missouri, and which he ought to have paid into the state treasury aforesaid, on or before the-, in the year of our Lord eighteen hundred and --; and whereas the auditor of the state of Missouri has ascertained the balance due the state of Missouri by
‘ ‘--, State Au ditor. ’ ’
There is‘no canon of construction more rigidly and universally followed than that which requires statutes prescribing summary remedies, remedies in derogation of common law and common rights, to be strictly or literally construed. Touching this point an eminent law-writer says : “A summary distress warrant against
It only requires a very cursory examination of the warrant issued herein, and the statutory provisions already set forth, to see, at once, that those provisions, have not been complied with, either strictly or substantially.
The governing idea of the statute under discussion is the enforcement of prompt payments of the public revenues. Instead, however, of this being done, there was no exaction of monthly payments as required by the statute, nor was the warrant in question issued by the auditor until some eighteen months after Reddick, the collector, went out of office. More than that, the warrant itself does not comply with, nor conform to, the form given by section 7569; because that section is framed for the collection of the revenue but for a single year, and not for former years, as is the case with the present warrant.
Section 7566 requires the collector, immediately after his settlement with the county court on the first Monday in March in each year, to exhibit his accounts
As showing the strictness with which this court has heretofore regarded similar proceedings it was ruled in Ray Co. v. Barr, 57 Mo. 290, that a former clerk of the circuit court could not be proceeded against for the collection of certain fines, etc., which he had retained, in the summary manner provided for in section 5379, Revised Statutes, 1879, after he had gone out of office. So, also, in Brown v. Weatherby, 71 Mo. 152, the provisions of section 67, page 81, 1 Wagner’s Statutes, it was held that the sureties of a public administrator who was delinquent in his accounts could not be proceeded against in the summary way provided for in that section unless their delinquent principal were proceeded against at the same time.
A similar ruling was made in Governor v. Powell, 23 Ala. 579, where it was held that though the statute authorized a summary judgment against the collector and his sureties, yet that, if the collector was dead, the summary remedy was gone.
Applying the rigid principles announced by the foregoing authorities there can be but one opinion as to the patent invalidity of the distress warrant issued in the present instance.
In cases of this sort, cases where the officer who is clothed with such extraordinary authority proceeds in a manner not authorized by the statute which apparently purports to give such powers, the arm of a court of equity is not too short to stay his usurping hand and to arrest and to thwart his assumption of power uncon. ferred. Itis true, courts of equity are averse to enjoining
This principle has met with frequent exemplification. Thus in Frewin v. Lewis, 4 Mylne & Craig, 249, Lord Cottenham, said: “The question of jurisdiction was raised, and it was argued by those who supported the demurrers that this court had no jurisdiction. Now, I apprehend that the limits within which this court interferes with the acts of a body of public functionaries, constituted like the “Poor Law” commissioners, are perfectly clear and unambiguous. So long as. those functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this court will not interfere. The court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this court no longer considers them as acting under the authority of their commission, but treats them, whether they be a corporation or individuals, merely as persons dealing with property without legal authority.” This case is cited with approval by Judge Story. 2 Eq. Juris. [13 Ed. ] 259.
High says: “Upon the other hand, if the acts which it is sought to restrain are of a strictly ministerial, as distinguished from an executive or political nature, the fact that they have been committed to executive officers, such as the governor of a state, or a state auditor, will not prevent relief by injunction in a proper case.” High on Injunc., sec. 1326.
Pomeroy says: “An injunction will not be granted, in general, to restrain persons from acting as
These authorities abundantly sustain the action of the circuit court in perpetually enjoining the defendants from further proceeding under and by virtue of the distress warrant, and we affirm the judgment.
