State ex rel. Lawrence County v. Shipman

125 Mo. 436 | Mo. | 1894

Gantt, P. J.

An action was brought against the defendant and his sureties on his bond as collector of the revenue of Lawrence county. There were two counts in the petition, the first charging him with retaining a larger commission on his collections for the year 1887 than allowed him by law, and the second with retaining greater commissions on his collections for 1888 than allowed by law.

The finding and judgment on the first count was for defendants, and the county did not appeal. On the second count, the court sitting as a jury found for the plaintiff and gave judgment against the defendant Shipman and his sureties for $456.25.- On the trial it appeared that the collector at the March term, 1889, made his final settlement with the county court and fully reported all the taxes chargeable against and collected by him for the year 1888.

This settlement shows that he was allowéd a commission of four per cent, on his collections. It was admitted that the total amount of the taxes extended for 1888 was $66,566.07; that the total sum collected, except for state revenue, was $45,677.74, and the state revenue amounted to $7,320.31.

•By the statute, section 7640, Revised Statutes, 1889, it is perfectly clear defendant was entitled to a commission of only three per cent, on the amounts levied and not four per cent, as he was allowed.

But the settlement was made with the court with the full knowledge, on its part, of all the facts. The facts are not now disputed and there is no charge of fraud or collusion made. The county court simply made an error of law. The error was in allowing a commission of four per cent, on a tax book amounting to $66,566.07 when the statute allowed only three per cent.

The trial court declared the law to be that, although the court settled with defendant and allowed him four per cent, commission, yet, if it appeared that the taxes extended for 1888 exceeded $60,000 and were less than $80,000 he was only entitled to retain three per cent, 'as commissions and the settlement was no bar, and refused the converse of this proposition, asked by defendant.

This question has been recently decided by division number one of this court in State ex rel. v. Ewing, 116 Mo. 129, in which it was held that, in the absence of fraud, collusion or mistake of fact, the settlement made by a collector with the county court was binding on the county.

We have considered the argument of counsel for the county, calling in question that decision, but we are satisfied that it announces correct principles, and approve it.

As the court erred in its declaration of law for the plaintiff, the judgment is reversed and the cause remanded.

All of this division concur.