282 S.W.2d 30 (Mo. 1955), 44505, Everett v. County of Clinton

Docket Nº44505.
Citation282 S.W.2d 30
Opinion JudgeDALTON, Presiding Judge.
Party NameBuford EVERETT, H. W. Jenkins, M. C. Edson, and Gladstone Teaney, on behalf of themselves and all other taxpayers in the County of Clinton, Respondents, v. The COUNTY OF CLINTON; David Plummer, County Clerk; Everett Pittman, County Treasurer; Plattsburg Special Road District; Cameron Special Road District; Lathrop Special Road District; and Jack Jo
AttorneyMelvin E. Griffin, Pros. Atty., Plattsburg, J. B. Beavers, Cameron, Gerald Cross, Lathrop, March K. Brown, Jr., Kansas City, for appellants. Thomas R. Oswald, Jr., Shelbina, Charles H. Howard, Jefferson City, Hendren & Andrae, by Henry Andrae, Jefferson City, for respondents.
Case DateSeptember 12, 1955
CourtSupreme Court of Missouri

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282 S.W.2d 30 (Mo. 1955)

Buford EVERETT, H. W. Jenkins, M. C. Edson, and Gladstone Teaney, on behalf of themselves and all other taxpayers in the County of Clinton, Respondents,

v.

The COUNTY OF CLINTON; David Plummer, County Clerk; Everett Pittman, County Treasurer; Plattsburg Special Road District; Cameron Special Road District; Lathrop Special Road District; and Jack Johnson, Appellants.

No. 44505.

Supreme Court of Missouri

September 12, 1955

Division No. 1.

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Action to enjoin county from operating rock quarry and from selling crushed rock and from purchasing motor graders. The Circuit Court, Clinton County, Ray Weightman, Special Judge, rendered judgment for plaintiffs, and defendants appealed. The Supreme Court, Dalton, P. J., held, inter alia, that county's right to acquire, own and control a rock quarry and express grant of power to construct and reconstruct roads carried with it right to use and operate quarry for county purposes and to mine, prepare and use such material on public roads of county.

Judgment reversed in part and affirmed in part.

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Melvin E. Griffin, Pros. Atty., Plattsburg, J. B. Beavers, Cameron, Gerald Cross, Lathrop, March K. Brown, Jr., Kansas City, for appellants.

Thomas R. Oswald, Jr., Shelbina, Charles H. Howard, Jefferson City, Hendren & Andrae, by Henry Andrae, Jefferson City, for respondents.

DALTON, Presiding Judge.

This is a taxpayers' action to enjoin the alleged illegal expenditure of public funds by a county in the purchase and operation of a rock quarry, in the preparation and sale of crushed stone for road purposes and in the purchase of motor graders. The trial court granted the relief prayed and defendants have appealed.

Count one purports to be a class action by four taxpayers against Clinton County, the County Clerk and County Treasurer of said county, the Plattsburg, Cameron and Lathrop Special Road Districts of said county, and one Jack Johnson. It is alleged that the county had purchased a rock quarry and scales, lumber and a ticket dispenser for use in connection with the operation of the quarry; and that it had employed a scales operator. Johnson was alleged to be an independent contractor under contract with the county to crush stone at the quarry for $1.15 per ton. The several special road districts were alleged to have contracts with Clinton County under which they were obligated to buy and the county was obligated to sell crushed stone for the repair and construction of roads at $1.25 per ton at the county quarry. It was also alleged that the county was engaged in the commercial limestone business, selling to all buyers; and that the prosecuting attorney of the county had refused to bring this action.

It was further alleged that the ‘ mentioned contracts, transactions, agreements, both written and oral, court orders, warrants drawn and to be drawn, and moneys paid and to be paid pursuant thereto, and all acts pursuant to all matters herein set forth are a chain of events constituting a single transaction which is illegal and void and results in illegal expenditures of public money and that each and every contract, transaction and act therein is separately and independently illegal and void and results in illegal expenditure of public money * * * that public money has been expended, is now being expended, and will in the future be expended, unlawfully and illegally, in pursuance of such contracts and transactions, above alleged * * *.’ Numerous specific statutory provisions, hereinafter referred to, were relied upon to show the illegality of the contracts and transactions.

In a second count plaintiffs sought to enjoin the alleged unlawful payment for motor graders from Class V funds of the 1953 county budget rather than from Class III funds.

The essential facts are not in dispute. Clinton County is a county of the third class. On June 10, 1949, the county purchased from the Plattsburg Special Road District a rock quarry, rock crusher, machinery and equipment. On June 19, 1951, and again on March 10, 1953, it purchased additional land for quarry purposes. On March 18, 1953, the county purchased a heavy duty Fairbanks and Morse Scale for use at the quarry and payment made was from ‘ miscellaneous expenditures' in Class III of the 1953 budget. Lumber for the installation of the scales and a ticket dispenser were also purchased. On March 25, 1953, the county employed a scales operator at the quarry to weight the crushed stone produced.

On March 10, 1953, the county entered into a written agreement with one Jack Johnson by which the county agreed to pay Johnson $1.15 per ton to crush and stockpile limestone rock to be taken from the county's quarry. Johnson agreed to furnish all the equipment (except scales) and to perform all of the labor for such operation at his own expense and to accept full

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and sole responsibility and indemnify and save the county harmless from claims for damage and liability arising from the operation. Johnson further agreed to crush and stock-pile 20,000 tons of such stone at $1.15 per ton and such other additional amounts as the county might require within one year. Johnson furnished a $10,000 bond to guarantee faithful performance of his undertaking. It is admitted that the intention, plan and purpose of the contract was in part to provide crushed rock for road construction and improvement. Johnson crushed and stock-piled some 23,437 tons of stone for which he was paid under the contract.

On April 17, 1953, Clinton County entered into separate contracts with the Cameron, Plattsburg and Lathrop Special Road Districts (all located in the county) by which it agreed to furnish to each of the respective districts, at the county quarry at Plattsburg, 2,000 tons of crushed stone at $1.25 per ton, such stone to be used on roads in Clinton County. Each district agreed to buy and pay for 2,000 tons of such stone and the agreement provided for the purchase of additional stone when needed at the same rate. It is admitted that these contracts were fully performed prior to the trial of the cause.

During 1953, the county sold to various individuals and firms crushed rock at $1.25 per ton in the stock pile at the county quarry. Such crushed stone was used on private drives, driveway entrances, private property and some was re-sold. Appellants admit that the county sold approximately 400 tons of crushed stone from the county quarry to private property owners, but it contends the sales were intended for the protection of public roads at private drive intersections with public county roads.

The regular Clinton County budget for 1953 was adopted on January 21, 1953. On February 4, 1953, petitions were filed with the county court for a special election to be held to vote for or against a special 35 cent levy for road and bridge purposes in the several special road districts and in ‘ County General Road District No. 1.’ The latter district included the county outside the special districts. The election was held February 24, 1953, and the levy carried in the several districts and in County General Road District No. 1. Thereafter, on April 20, 1953, a budget for County General Road District No. 1 was adopted and spread on the records, entitled ‘ The General Road Budget for 1953.’ This amended budget showed total estimated revenues, net $84,885.34, with estimated expenditures, as follows: Road and Bridge Maintenance, material, lumber and wood products $2000, crushed stone $40,000, miscellaneous $24,885.34. An order was further entered that $84,885.34 ‘ be and is hereby appropriated, apportioned and set aside for the payment of proposed expenditures of General Road District No. 1, of Clinton County.’ Payments to Jack Johnson for crushed stone produced by him at the county quarry under his contract with the county were made by warrants drawn against this County General Road District No. 1, 1953 Budget.

It is admitted that public funds have been expended, as stated, in the purchase of quarry real estate, scales, lumber, a ticket dispenser and for Johnson under his contract for crushing and stock-piling stone; and the court found that ‘ all was paid from tax money derived from a 35 cent special voted levy of the General Road District No. 1 of Clinton County.’

It is admitted that the expenditure of public money under the contract between defendant Johnson and Clinton County ‘ was not classified as a proposed expenditure in the regular January County Budget for 1953 and said expenditures were not shown by the records of the defendant county, as an estimated expenditure in the regular January County Budget for 1953, and said expenditures were not in any way included as a budget balance in the regular January County Budget for 1953 * * *.’ It is appellants' theory ‘ that said expenditures arose and were made available as a result of special elections and * * * in compliance with the law.’

The trial court enjoined the county from directly or indirectly operating the quarry,

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from directly or indirectly producing or manufacturing crushed rock or stone products, from purchasing directly or indirectly machinery or equipment for use at the quarry, from selling or disposing of crushed rock to the special road districts or to other political subdivisions, corporations, or to persons for public or private purposes, from budgething or expending public moneys for any of the aforesaid purposes and the further performance of the Johnson contract. The other defendants were enjoined from aiding or cooperating with the county in performing any of the prohibited acts.

Appellants first contend that the action cannot be maintained by the four respondent taxpayers; that no cause of action is stated and the trial...

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30 practice notes
  • 592 S.W.2d 825 (Mo.App. W.D. 1979), KCD 30164, Missourians for Separation of Church and State v. Robertson
    • United States
    • Missouri Court of Appeals of Missouri
    • December 3, 1979
    ...of public money derives from the common law and persists without necessary aid of statutory authority. Everett v. County of Clinton, 282 S.W.2d 30, 34(1-3) (Mo.1955); Watson v. Kerr, 315 Mo. 781, 287 S.W. 337, 340 (banc 1926). A usual instance of the taxpayer suit has been to preserve the F......
  • 800 S.W.2d 99 (Mo.App. S.D. 1990), 16878, Wear v. Walker
    • United States
    • Missouri Court of Appeals of Missouri
    • November 6, 1990
    ...law as well as upon the statute. In such cases, the statutory remedy will be regarded as merely cumulative. Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo.1955). From time to time Missouri courts have confronted the issue of whether the violation of a statute gives rise to a private ca......
  • 671 S.W.2d 265 (Mo. 1984), 65048, Detling v. Edelbrock
    • United States
    • Missouri Supreme Court of Missouri
    • May 15, 1984
    ...272 and envelopes the remedies provided by common law. See Gales v. Weldon, 282 S.W.2d 522, 529 (Mo.1955); Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo.1955). Nothing in the Act indicates to us that the legislature intended it to be the exclusive remedy of tenants occupying sub-habit......
  • 514 S.W.2d 593 (Mo. 1974), 58443, Hawkins v. Burlington Northern, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • September 9, 1974
    ...by the new statute. In such cases, the new statutory remedy will be regarded as permissive.' See also Everett v. County of Clinton, 282 S.W.2d 30 (Mo.1955), holding that the common law remedy of injunction was available to tax payers to prevent illegal expenditures of public funds although ......
  • Request a trial to view additional results
29 cases
  • 592 S.W.2d 825 (Mo.App. W.D. 1979), KCD 30164, Missourians for Separation of Church and State v. Robertson
    • United States
    • Missouri Court of Appeals of Missouri
    • December 3, 1979
    ...of public money derives from the common law and persists without necessary aid of statutory authority. Everett v. County of Clinton, 282 S.W.2d 30, 34(1-3) (Mo.1955); Watson v. Kerr, 315 Mo. 781, 287 S.W. 337, 340 (banc 1926). A usual instance of the taxpayer suit has been to preserve the F......
  • 800 S.W.2d 99 (Mo.App. S.D. 1990), 16878, Wear v. Walker
    • United States
    • Missouri Court of Appeals of Missouri
    • November 6, 1990
    ...law as well as upon the statute. In such cases, the statutory remedy will be regarded as merely cumulative. Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo.1955). From time to time Missouri courts have confronted the issue of whether the violation of a statute gives rise to a private ca......
  • 671 S.W.2d 265 (Mo. 1984), 65048, Detling v. Edelbrock
    • United States
    • Missouri Supreme Court of Missouri
    • May 15, 1984
    ...272 and envelopes the remedies provided by common law. See Gales v. Weldon, 282 S.W.2d 522, 529 (Mo.1955); Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo.1955). Nothing in the Act indicates to us that the legislature intended it to be the exclusive remedy of tenants occupying sub-habit......
  • 514 S.W.2d 593 (Mo. 1974), 58443, Hawkins v. Burlington Northern, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • September 9, 1974
    ...by the new statute. In such cases, the new statutory remedy will be regarded as permissive.' See also Everett v. County of Clinton, 282 S.W.2d 30 (Mo.1955), holding that the common law remedy of injunction was available to tax payers to prevent illegal expenditures of public funds although ......
  • Request a trial to view additional results
1 books & journal articles
  • Resurrection of a dead remedy: bringing common law negligence back into employment law.
    • United States
    • Missouri Law Review Vol. 75 Nbr. 3, June 2010
    • June 22, 2010
    ...10, 14. (175.) See Saint Louis County v. Moore, 818 S.W.2d 309, 310 (Mo. App. E.D. 1991); Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo. 1955); Hickman v. City of Kan., 25 S.W. 225, 227 (Mo. 1894). (176.) See generally Mo. Alliance for Retired Ams. v. Dep't of Labor & Indus. Relat......