Loring v. City of St. Louis

• Decision Date: 31 October 1883
• Citation: 80 Mo. 461
• Parties: LORING et al. v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

80 Mo. 461

LORING et al.

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellant.

The respondents, by pleading the contract between Maguire and St. Louis county, and setting it up as the foundation of their right to recover herein, have in effect made themselves parties to it, and it is to be construed, for the purposes of this action, as if they had in effect executed it and bound themselves by its terms and provisions, which preclude them from maintaining this action. No debt was created or exists by reason of the matter stated in the petition, on which plaintiffs are entitled to recover in this action against the defendant. The order made by the county on February 12th, 1877, awarding to plaintiffs the money sued for is invalid.

Loring & Loring for respondents.

It has been judicially determined by this court that the money in controversy was wrongfully exacted by Maguire from the tax-payers. Maguire v. State Saving Asso'n, 62 Mo. 344. The petition traces the money from the tax-payers through Maguire and the county of St. Louis to defendant, which now holds it in its treasury. The same liability rests upon the defendant as upon an individual to pay the money in dispute to plaintiffs. Pimental v. San Francisco, 21 Cal. 364; 16 Cal. 591; Herzo v. San Francisco, 33 Cal. 134. The contract between Maguire and the county does not preclude plaintiffs from bringing this suit; it was referred to in the petition to give a history of the case, and by so doing plaintiffs did not adopt it; they were not parties to it.

PHILIPS, C.

This action grew out of the following state of facts: In 1871 one Constantine Maguire was collector for the county of St. Louis. Under certain tax-bills against personal property, the collector wrongfully exacted of the owners of the property interest on the bills of assessment, and under compulsion collected thereon interest amounting to about $25,000. Of this fund thus wrongfully collected, the sum of $717.94 was taken from the parties represented in the pending suit.

On demand made by the county court of said county, that the fund so collected by the collector be paid over to the county, the State Savings Bank Association, one of the parties from whom a part of this fund had been exacted, made claim on the collector for restitution, as for money had and received to its use. Thereupon Maguire filed his petition, bringing the county and Savings Association into court, to have the matter judicially determined as to whom he should pay over the money.

That cause was carried to the Supreme Court for final determination. During the pendency of that action, as its result could not be known, for the protection of the collector, and the better security of the county in the event it should be determined by the court that the money was rightfully collected, on the 26th day of May, 1873, the county court of said county and Maguire, entered into the following contract:

1. “Constantine Maguire will pay into the county court of St. Louis county, the sum found by said court's committee to have been collected by him as interest on delinquent personal tax-bills, viz., $25,159.34, less the amount of said interest involved in the suit of the State Savings Institution against him, now pending in the St. Louis circuit court, (and which amount is to be by him paid into said circuit court, to abide the decision on his interpleader in reference thereto against said association and said county court,) and also less the amount which said county court may allow said Maguire for expenses incurred in relation exclusively to the collection of said delinquent personal tax-bills, and which expenses are by law, or under any order of said county court lawfully chargeable to said county, or to be refunded to said Maguire by it. On the balance thus ascertained as to be paid by him, he shall also pay into said county court at the same time with the principal, interest thereon at the rate of six per centum per annum from the 22d of October, 1872, being the date of the service on him of the order of said county court, that he render an account of said interest collected on delinquent personal tax-bills. Said Maguire will, without delay, present to the county auditor all his claims for allowance or reimbursement of said expenses, and said county court will, without unnecessary delay, proceed to pass upon the same according to law, and only such amount as said court shall allow shall be deducted, as aforesaid, from said interest collected by said Maguire. The balance thus ascertained shall be paid forthwith by him into said county court. But notwithstanding said payment, said Maguire shall be free to appeal, or take his other remedy at law, from the decision of said county court, rejecting any of his said claims; nor shall this agreement refer to any claims he may have against the county of St. Louis, for any expenses of his office as collector, as aforesaid, other than those relating exclusively to said collection of interest on delinquent personal tax-bills. The amount to be paid into said county court by said Maguire, as aforesaid, shall be held by said court as a special fund, to await the determination of the legal questions in relation to the rights to the same, and at the discretion of said court, may be deposited either in the county treasury or in some banking or savings institution of the city of St. Louis, either bearing interest or not, and on adequate security.

2. Should any tax-payer, by suit in good faith and properly defended, or in any suit to which said county court of St. Louis is or shall be a party, recover from said Maguire any money paid him as interest on delinquent personal tax-bills, said county court shall repay to said Maguire, out of the fund paid by him, as aforesaid, a sum of money which shall bear to the total of said fund the same proportion that said interest originally collected by him, and the subject of such suit, may bear to the total of such interest collected by him, and ascertained by said county court's committee, as hereinbefore set forth; the remainder of such judgment, whether of original demand, principal or interest or cost, shall be paid by said Maguire without recourse on said county court, or of said county of St. Louis.

3. Any payment by said county court out of said fund to any tax-payer, by virtue of any act of the general assembly of the State of Missouri, now in force or hereafter enacted, or in accordance with a decision of the Supreme Court of Missouri, settling the question of right to interest on delinquent personal tax-bills, of such tax-payers' proportion of said fund, shall be a satisfaction pro tanto of all obligations and trusts assumed by said county court in regard to said fund. But nothing in this agreement contained shall be construed to give any tax-payer any right to sue said county court, or the county of St. Louis, for any part of said fund, or to obligate said court for said county, to defend any suit brought against said Maguire on account of any collection by him of interest on delinquent personal tax-bills, or to indemnify him against any judgment therein.

4. Nothing in this agreement shall be construed to hinder said county court, or the county of St. Louis, to refund to said Maguire, or to pay to tax-payers who may be entitled to return of interest collected on delinquent personal tax-bills, or to pay to the State of Missouri, or any corporation or body, or person whosoever in the aggregate, any greater amount than that to be paid as aforesaid, by said Maguire into said county court; but as soon as said fund, so paid in by him, shall have been exhausted by such payments or transfers to the revenue of the county of St. Louis of proper proportion of said fund, said county court and said county of St. Louis shall be wholly free from all further liability, trust or duty under this agreement; and should it hereafter appear that any other or greater amount than that heretofore mentioned, as ascertained by a committee of said...