State v. Adams

• Citation: 161 Mo. 349,61 S.W. 894
• Parties: STATE ex rel. WHEELER v. ADAMS, County Treasurer.
• Decision Date: 26 March 1901
• Court: United States State Supreme Court of Missouri

61 S.W. 894

161 Mo. 349

STATE ex rel. WHEELER v. ADAMS, County Treasurer.

Supreme Court of Missouri.

March 26, 1901.

COUNTIES — WARRANTS — PAYMENT — REFUSAL — MANDAMUS — PLEADING — ESTOPPEL — SWAMPLAND FUND — MAINTENANCE — RIGHT OF COUNTY — SWAMP LAND — SALE — CONTRACT — RESCISSION — SUIT FOR BREACH — COMPROMISE — COUNTY COURT — AUTHORITY — REFUNDING PAYMENTS — SCHOOL FUND — DIVERSION.

1. Relator alleged that on the 29th of June, 1899, when he presented a warrant to defendant, who was county treasurer, for payment, there was money in the treasury available for its discharge and all warrants issued prior thereto. Defendant denied that there was "now" any money in the treasury available for the payment of the warrant. Held, that defendant's failure to deny that there were funds available when the warrant was presented estopped him from showing that he now had no funds available for such payment.

2. The county treasurer being merely a ministerial officer, mandamus will lie to compel him to pay a properly audited warrant.

3. Rev. St. 1899, § 8199, provides that the net proceeds arising from the sale of swamp lands, after deducting the expenses of draining and reclaiming the same, shall be paid into the county treasury, and become a part of the public-school fund. Relator alleged that for many years both prior and subsequent to the issuance of a warrant to him by the county court against the swamp-land fund the county had kept and maintained in the hands of the county treasurer a fund known as the "Swamp-Land Fund," and the allegation was not denied by defendant's answer. Held, that defendant could not maintain that there was no such fund known to the law as a swamp-land fund, since by his failure to deny plaintiff's allegation he admitted its existence.

4. Rev. St. 1899, § 8199, providing that the net proceeds arising from the sale of swamp lands, after deducting the expenses of draining and reclaiming the same, shall be paid into the county treasury, and become a part of the public-school fund of the county, does not prevent the county from maintaining a fund in its treasury known as a "swamp-land fund," since the money paid in on account of such land does not become a part of the school fund prior to the payment of draining and reclaiming expenses.

5. Rev. St. 1899, § 8213, provides that in every case where persons have become purchasers of swamp lands on credit, and become unable to pay for the same, the county court, on application of such a purchaser, may cancel the contract, and shall not in any case pay back any money or interest that has been paid thereon; and section 8215 authorizes county courts, in case they are unable to make a good title to swamp lands, to cancel a contract for the purchase thereof, with the consent of the purchaser. Relator contracted to purchase swamp land, and agreed to make payments within a certain time, and the parties subsequently entered into a new agreement extending the time of payments until the county's title to the land could be determined; and prior to such determination the county court, without the consent of relator, rescinded the contract, and relator sued for damages. It did not appear that relator was unable to carry out his contract. Held, that the cancellation of the contract was unauthorized, and hence the payments made by relator were not forfeited.

6. There is nothing in the statutes prohibiting the county from settling relator's suit by agreeing to refund the money already paid by relator on the contract, and issuing warrants therefor on the county treasurer.

7. Rev. St. 1899, § 8199, provides that the net proceeds arising from the sale of swamp lands, after deducting the expenses of draining and reclaiming the same, shall be paid into the county treasury, and become a part of the public-school fund. The county unlawfully canceled a contract to sell swamp land to relator, and compromised relator's suit for damages by issuing warrants on the swamp-land fund for the amount paid by relator on the contract. Held, that the county was not prevented from issuing the warrants by the fact that the money paid into the treasury constituted a trust fund for the benefit of the public schools, since prior to the payment of reclaiming and draining expenses the money did not become a part of the school fund.

8. Where the county court unlawfully rescinded a contract to sell swamp land to relator, and compromised a suit by relator for damages by agreeing to refund the amount paid by him on his contract, with interest, the contention that warrants for such sum were invalid, on the ground that it was beyond the power of the county court to compromise a general claim for damages, cannot be sustained, since, having unlawfully canceled the contract, it was the duty of the county to refund relator's payments, and hence relator's right to a warrant did not depend on the compromise.

In banc. Application by the state, on relation of George B. Wheeler, for a peremptory writ of mandamus to compel W. B. Adams, treasurer of Butler county, to pay a warrant drawn in favor of relator. Writ granted.

E. R. Lentz, for relator. Johnson, Houts, Marlatt & Hawes, for respondent.

ROBINSON, J.

This is an original proceeding instituted in this court on the relation of George B. Wheeler for a peremptory mandamus to compel respondent, as treasurer of Butler county, to pay relator the amount of a certain county warrant drawn by the county court of said county upon the swampland fund. The allegations of the alternative writ are as follows: "That on and prior to the 29th day of June, 1899, Geo. B. Wheeler held a claim against the county of Butler, in the state of Missouri, for the sum of $3,000, together with interest thereon for several years, for money paid by him to the county of Butler on account of swamp lands of said county, and which said sum of money was by the order and direction of the county court of said county paid into the treasury of said county, and placed to the credit of the swampland fund of said county; and thereby said sum of money so paid by this relator into the treasury of said county became and was a part of the swamp-land fund of said county. That on the 29th day of June, 1899, he presented said claim to the county court, and that said county court on said 29th day of June duly audited said account, and, by an order of the county court duly entered of record in the records of said court, did find and determine that the relator herein was entitled to have said sum of money, with interest thereon, returned and refunded to him, and, by order duly entered in its records, did order and direct the clerk of said court to issue and deliver to the relator a warrant in due form directing the treasurer of said county to pay to the said Geo. B. Wheeler for the sum of $3,900 out of any money in his hands appropriated for swamp-land purposes; and on the 29th day of June, 1899, the clerk of said county court did, in pursuance of said order of the county court, issue and deliver to the relator herein said warrant, as he was ordered and directed by said county court to do, which said warrant is as follows: `No. 454. $3,900.00. Treasurer of Butler County: Pay to Geo. B. Wheeler three thousand nine hundred dollars out of any money in the treasury appropriated for swamp-land fund. Given at the court house in Poplar Bluff, Missouri, this 29th day of June, 1899. By order of the County Court. H. S. Baker, President. Attest: Geo. C. Orchard, Clerk.' That subsequent thereto, and about the 1st day of July, 1899, this relator duly presented said warrant to the treasurer of said county, and that the respondent, as such treasurer, refused to pay the same, alleging as a reason therefor that he did not know whether he had to pay the same or not, and saying that he wanted to take further counsel in relation thereto. That thereupon the relator herein demanded of respondent, as such county treasurer, that he register said warrant, and indorse thereon the fact of such presentment, and that payment thereof was refused because he had no money in his hands with which to pay the same. That respondent, as such county treasurer, refused to comply with the demand to have said warrant registered, giving as a reason thereof that he could not do that, because he had the money with which to pay said warrant, should he decide to do so. And this relator says that he has at divers times since the 1st day of July, 1899, demanded of respondent, as such treasurer, that he pay said warrant, but that he has at all times refused to comply with such demand, or pay said warrant. Relator says that for many years both prior and subsequent to the issuing of said warrant as aforesaid the county court of said county has, in the exercise of its discretion, kept and maintained a fund in the hands of the treasurer of the said county known and designated as the `Swamp-Land Fund,' upon which warrants were drawn in payment of all accounts due and owing by said county on account of its swamp lands; that on the 29th day of June, 1899, and at all times since, and now, there was and is in the hands of the respondent, as such treasurer, money belonging to swamp-land fund sufficient to pay said warrant, as well as all other warrants of prior issue and presentation drawn on said swamp-land fund, and it becomes and was the duty of the respondent, as such treasurer, to pay said warrant when presented to him for payment, and that his said acts in so refusing to pay said warrant were wrongful and illegal, and in violation of the duties of respondent as such county treasurer; that, by reason of said wrongful and illegal acts of said respondent as such county treasurer, this relator has been prevented from collecting and receiving the said sum of money so due from said county of Butler to him; that this relator is wholly without remedy, except by the writ of mandamus."

The return of respondent to the alternative writ, after admitting that ...