Andrew County ex rel. Kirtley v. Schell

• Citation: 36 S.W. 206,135 Mo. 31
• Parties: Andrew County ex rel. Kirtley, Appellant, v. Schell et al
• Decision Date: 16 June 1896
• Court: United States State Supreme Court of Missouri

36 S.W. 206

135 Mo. 31

Andrew County ex rel. Kirtley, Appellant, v. Schell et al

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from Andrew Circuit Court. -- Hon. William S. Herndon, Judge.

Affirmed.

David Rea and P. Mercer for appellant.

(1) It was the duty of defendant as treasurer of Andrew county to pay all county warrants legally drawn by the county court on account of the ordinary and usual expenses of said county and presented for payment by the legal holders thereof, out of the funds mentioned in such warrants, in the order in which they were presented for payment. R. S. 1889, sections 3166, 3167, 3168, 7665. (2) By the agreed statement of facts upon which this case was submitted to the court below it is admitted that the warrants described in plaintiff's petition were issued against the funds described in said petition for expenses incurred by the county of Andrew during the several years in which said warrants were issued, and that said warrants taken alone and separate from the unpaid warrants of previous years, were not in excess of the revenue for the several years when issued. Under this agreement all the warrants sued on in this case were legal warrants. Section 12, article 10, Constitution of Missouri, 1875; Catron v. Lafayette Co., 106 Mo. 659, and authorities cited; Reynolds v. Norman, 114 Mo. 509; Barnard & Co. v. Knox County, 105 Mo. 382. (3) These warrants were issued at the time they respectively bear date and were presented for payment at the times stated in the petition, and payment was refused for want of funds and they were then and there registered by the treasurer as required by law, and on the eighteenth day of January, 1894, said warrants were presented to defendant, Schell, treasurer of said county of Andrew, and payment demanded, which was refused, and at the time defendant refused to pay the said warrants on the eighteenth day of January, 1894, there was money enough in the several funds on which said warrants were drawn to have paid them and all unpaid warrants drawn on said funds and presented for payment prior to the time these warrants were first presented for payment. (4) Defendants in their answer admit that the defendant Jacob Schell was and is the treasurer of said county of Andrew, and the other defendants were his bondsmen as stated in plaintiff's petition. (5) The defendant Jacob Schell, as such treasurer having failed to pay the warrants sued on when presented to him for payment on the eighteenth day of January, 1894, became liable to pay the relator, Kirtley, double damages for the injury sustained which may be recovered by an action in the ordinary form against said Schell and his codefendants, as sureties on his official bond. Section 3203, R. S. 1889; State v. McCrellus, 4 Kan. 250. (6) A county warrant lawfully issued in payment of an indebtedness of one year may be paid out of the revenues of a subsequent year. Reynolds v. Norman, 114 Mo. 509.

Simmons, Keller & Castle and Huston & Parrish for respondents.

(1) The purpose of our constitution was to inaugurate the cash system in the administration of county affairs -- that each year should pay its own expenses. Sec. 12, art. 10, constitution; Book v. Earl, 87 Mo. 246; Barnard v. Knox Co., 105 Mo. 382. The only tax that can be levied is an annual tax. R. S. 1889, sec. 7662. The purpose for which it is levied is * * * for current county expenditures. R. S. 1889, sec. 7653. The county courts shall subdivide the revenue at the May term of each year and set apart a sum sufficient to pay the ordinary current expenses. R. S. 1889, section 7663. The moneys so set apart shall be a sacred fund for the purposes for which it has been designated. R. S. 1889, sec. 7664. It shall be the duty of the county treasurer to pay the revenue on warrants issued by order of the county court on the funds so set apart, and not otherwise. R. S. 1889, sec. 7665. The legislature has provided for the payment of such warrants as are in question by passing the law contained in Session Acts of 1893, page 131, which would indicate that the then existing laws were not applicable to the payment of warrants such as are in controversy. County treasurers have no authority to pay warrants drawn upon funds other than the funds of the current year, except by the provisions found in Session Acts of 1893, page 131. The case of Reynolds v. Norman, 114 Mo. 509, is not in point in this case. Because the collector represents the county as to all county taxes, he is not required to allow the set-off as against any funds -- he has nothing to do with any funds created by article 5, chapter 38, Revised Statutes, 1889, whereas the treasurer can only pay out of a particular fund provided for that purpose. But aside from the obvious distinction between the functions of the two officers we contend that the Reynolds case is bad law -- should not be followed, but should be overruled.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action against the defendant Schell, as principal, and his codefendants as sureties, on his bond as treasurer of Andrew county for the penalty prescribed by section 3203, Revised Statutes, 1889, for failing and refusing to pay when presented to him by plaintiff for payment certain county warrants issued by the county court of that county, of which plaintiff is the holder. From a judgment for defendants plaintiff appealed.

There are seven counts in the petition, based on as many different warrants. The first count is on a county warrant issued December 31, 1890, for $ 200. Second count on a warrant issued December 2, 1889, for $ 133.20. Third count on a warrant issued November 6, 1889, for $ 100. Fourth count on a warrant issued December 2, 1889, for $ 25. Fifth count on a warrant issued January 7, 1890, for $ 158.80. The warrants amount in the aggregate to $ 861.50 without interest.

The case was tried by the court on the following agreed statement of facts:

"That the several warrants described in the petition were issued against the funds described in said petition and named in said warrants respectively, for expenses incurred by said county during the several years in which issued; that the amount of the warrants drawn in each of said years, prior to the time these warrants were severally issued added to the warrants issued in previous years, and which were, at the time these warrants were severally issued, outstanding and unpaid, was in excess of all the revenues provided for said county from all sources for the years in which said warrants in suit were issued, but that the warrants issued by the county court of said county for the several fiscal years in which these warrants were issued were, if taken alone and separate from the unpaid warrants of previous years, not in excess of the revenue for the several years when issued.

"That the relator, Nicholas Kirtley, was county treasurer of said Andrew county from the ninth day of July, 1889, to the first day of January, 1891; that during that time he paid county warrants in the order of their presentation, without regard to date of issue, and that during that time he paid off warrants drawn upon the several funds against which the warrants in suit are drawn, more than a sum sufficient to pay the several warrants here in suit and which warrants so paid by him were, when issued, within the revenue of the county for the respective year when issued, but when the outstanding and unpaid warrants of previous years were added to the warrants issued and unpaid during said several fiscal years there had been, at the time the warrants so paid by him were issued, more than enough to exhaust all the revenue provided for said fiscal year from all sources.

"That the warrants in suit were issued at the time they respectively bear date, and were severally presented for payment at the times stated in the petition, and that payment was refused for want of funds, and said warrants were then and there registered by the treasurer, as stated in plaintiff's petition, and that the relator is the legal owner and holder thereof.

"That, on the eighteenth day of January, 1894, the said warrants were presented to the treasurer, Jacob Schell, of Andrew county, at his office, and payment demanded, which was refused.

"That for each year during which the defendant, Jacob Schell, has been treasurer of Andrew county, the county court has in all things, according to law, by an order of said court, entered of record, apportioned all the revenue of said county for the ensuing fiscal year, and that the treasurer aforesaid, Jacob Schell, has, in accordance with and in obedience to such order of apportionment, set apart all funds coming into his hands belonging to the county revenue to the several funds, and has adopted and adhered to the rule of paying out of such several funds so apportioned the warrants drawn on said several funds by the county court during such fiscal year, and that he has so applied all money coming into his hands for each year until the warrants issued against said several funds for such year were all paid. That after such payment there was a surplus of about $ 4,000 at the end of the fiscal year in the spring of 1893, which was applied to the old warrants issued in previous years in the order of their registered presentation, on new warrants issued therefor under the act of 1893. That at the end of the fiscal year terminating in the spring of 1894 there was a surplus, after paying all warrants issued during the prior fiscal year, of about $ 5,000, which was applied as was the surplus in 1893.

"That when the warrants in suit were presented to the defendant Jacob Schell, as stated above, there was money enough in the several funds to pay the...