Edwards v. Law

Cockreel, J. There being a difference of opinion among the members of Division B upon questions involved herein, the cause has been referred to the whole court for determination. The defendant in error, then clerk of Clay county, sued the plaintiff in error for services rendered at the instance 'of one John Murray in the matter of certain tax searches.' The Circuit Court charged that the compensation of the plaintiff as.clerk for making searches for unpaid taxes and tax certificates is 15 cents for each' search for more than two years for each year from which search was made. There was no contract as to compensation, and the searches extended over the years 1878 to 1900 for tax sales. Section 1394, Revised Statutes, provides, among other things, the clerk’s compensation as follows: [204] “Searches of one year’s standing or less..............$ .10 Of more than one year’s standing.....................15” Under chapter 4674, laws of 1899, “each application to the State Treasurer to purchase lands sold for taxes must be accompanied by a certificate from the clerk of the Circuit Court of the county in which the land is located, setting forth all the tax certificates held by the State covering all or any part of the land applied for,” etc. No provision is made in this chapter for the compensation of the clerk for this work, and the sole basis for such compensation is to be found in the portion of section 1394, Revised Statutes, above quoted. We have, then, to construe the meaning of the word “searches,” in the light of the legislation and the conditions surrounding the work called for by such “search.” It can not be that there is no “search” unless something be found. “Search” is defined by' Webster to be “the act of seeking or looking for something.” Each year property is or should be assessed for taxation, and each year there is or should be either a payment of the taxes or the property should .be sold for taxes. Each year the tax collector is required to turn over to the clerk, and the clerk is required to keep in a special book devoted to that purpose, a list of all the lands so sold. To make a “search,” so as to be able to make the proper certificate under his solemn official responsibility that he has set forth all the tax certificates held by the State, he must make a search for each year back to the year 1878, prior to which time all State certificates have been cancelled by legislative enactment. As compensation for this work we think the court rightly held that the “searches,” for which the legislature fixed the clerk’s compensation at 15 cents each, meant the examination each year for the purpose of ascertaining if a tax sale was made that year; that the work was the same whether the search' resulted in the finding of such sale [205] or. not, and that the compensation is the same in either event. This construction applies only to.the case before us, i. e., as to searches for tax sales or certificates, when there has presumably been some affirmative action each year and an examination for that special year is necessary, and as the judgment was entered April 8th, 1901, it is unaffected by the acts of 1901 and 1903. With respect to judgments, mortgages or other matters where there is no reason to apprehend yearly action or any stated action with reference to the property, and the search is merely to see whether there has been such action at any time, we are not prepared to criticise the construction placed by Judge Carter on the statute. The evidence is not sufficient to justify a finding that Murray was the agent of Edwards in ordering this search. The testimony as to agency is that of the plaintiff’s chief deputy clerk, that other work had been ordered for defendant by Murray and paid through Murray, and that Murray ordered this work for the defendant, saying that if the defendant would not take it he would buy the lands himself, and that of the defendant denying the authority in the alleged agent to act for him. Murray’s duty was as a woodsrider to report timber lands to Edwards, who, if he thought proper, would direct Murray to order searches made, and this was done on one occasion. ' The fact of previous recognized agency in Murray might authorize the plaintiff to infer agency if in the- later case he purported to act as such agent, and the defendant, having held him out as agent, might be bound thereby. There is in this, however, no evidence of either express or implied representation by Murray or any one that Murray was authorized to order for the defendant the work now sued for, but merely an intimation that it was without authority ordered for the defendant’s benefit, but if he would not by accepting it ratify the act of Murray in ordering it [206] he, Murray, would take it himself. Previous agency does not supply evidence of binding agency, where the alleged agent does not purport to act as a duly authorized agent and in the face of a direct intimation by the alleged agent when ordering the work done that the alleged principal might decline to accept the work, but if he did so decline, the alleged agent would take it himself. Previous agency justifies the other party in accepting as true representations express or implied of present agency, but does not supply the place of these when none is given, and the only intimation given is that the act is unauthorized but may be ratified. The want of authority in Murray is further emphasized by the fact, well known to the plaintiff, that the search fee alone would exceed many times the usual prices for land paid by those engaged in Edwards’ business, and negative any justification of Murray’s agency from the previous course of dealing. The lands might be worth the price to Murray, but not to the turpentine operator Edwards, for which purposes alone the lands might presumably be wanted. No ratification is shown, but prompt repudiation is shown. The offer of fifty dollars to settle the whole matter was by way of settling the matter amicably without resort to the courts, and can not be construed as a recognition of Murray’s authority. The judgment is reversed and a new trial granted. Taylor, C. J., and Maxwell, Shackleeord and Hocker, JJ., concur.