Bauer v. Franklin Cnty.

• Decision Date: 31 January 1873
• Citation: 51 Mo. 205
• Parties: JACOB BAUER, Appellant, v. FRANKLIN COUNTY, Respondent.
• Court: Missouri Supreme Court

51 Mo. 205

JACOB BAUER, Appellant,

v.FRANKLIN COUNTY, Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Franklin County Circuit Court.

Henry Flanagan with James Halligan, for Appellant.

It is submitted that in issuing warrants to the plaintiff to make up his loss, the county court did not abuse its discretion. The contract was not to be discharged in warrants, but in cash, and as the treasurer was entirely unable to meet the demands of the county court, it was competent for that body to aise money in the manner they did, under the power conferred by chapter 52, Gen. Stat. of 1865, and the Act of March 21st, 1868, (Sess., Acts 1868, page 42.) The exercise of discretionary power by county courts, may be unwise and extravagant, yet the circuit court cannot control them. (Hooper vs. Ely, 46 Mo., 505.) Under the Act of 1868, it was competent for the county court to sell the warrants at a discount. That act did not limit the court to the par value of their warrants or bonds. (Meyers vs. The City of Muscatine, 1 Wallace, 385.) The act (1868) has been passed upon by this court in the case of Steines vs. Franklin Co., 48 Mo., 167.

If the county court had the power to borrow money, it had the power to discount its warrants as a means of raising money, as a necessary, implied power, for “what is implied has the same effect as what is expressed.” (U. S. vs. Babbit, 1, Black, 55; Shoemaker vs. Goshen Township, 14 Ohio St., 569.)Seay & Kiskaddon, for Respondents.

The mode in which the county court pays the debts of the county, is prescribed by the statute, and must be followed. If the treasurer fails to pay the warrant issued in pursuance of that mode, the holder of the warrant has a remedy by bringing action upon it. A county warrant is in effect the promissory note of the county, and it is made negotiable by statute. When negotiated the right of action passes from the assignor to the assignee. The county court has no authority to pay money from the treasury without the intervention of a warrant, or to issue warrants to make up a loss on other warrants sold by the payees thereof, for less than par. (Wag. Stat. 415, §§ 31, 35; Phelps Co. vs. Bishop, 46 Mo. 68; Hooper vs. Ely, 46 Mo., 505; State ex rel West vs. Clark County, 41 Mo., 44; Thompson vs. Kellogg, 23 Mo., 281; Barrett vs. Schuyler Co., Court, 44 Mo., 197; Flagg vs. Mayor, etc., of Palmyra, 33 Mo., 440; Kingsbury vs. Pettis County, 48 Mo., 207; Han., St. Jo. R. R. Co., vs. Marion County, 36, Mo., 294; 10 Wallace 676; Clark vs. Des Moines, Iowa, reported in 6 Am. Law Reg N. S., 146; Fairchild vs. O., G. & R. R. R. Co., 15, N. Y., 337 A warrant on the treasurer of a R. R. corporation, is in effect a promissory note, and may be declared on as such; People vs. Draper, 15 N. Y., 570, 572; Clark vs. Polk County, 19 Iowa, 248; Young vs. Camden County, 19 Mo., 309; Zimmer man vs. Bollinger County Court, 48 Mo., 475.)

WAGNER, Judge, delivered the opinion of the court.

The objections, made on the argument of this cause, to the action of the court in admitting testimony, cannot be noticed here. All the objections made by both parties at the trial were general in their nature; no specific reasons were given why the evidence was inadmissable, and where such is the case, the objections will not be considered in this court.

The real question underlying the whole case, is the power of a County court, in fulfillment of a contract, to discount county warrants so as to make them equivalent to cash.

The plaintiff entered into a contract with the county to grade and macadamize a certain road, for which he was to receive the sum of $45,756.29 in cash, or its equivalent.

A certain proportionate part was to be paid as the work progressed, and the balance in a certain specified time after its completion. It appears from the record, that cash was paid up to the time specified in the contract for completing the work, and the County court informed the plaintiff that they could obtain no more money, and that they could only pay in county warrants, and desired him to give up the contract; but this he refused to do, and went on with the work receiving warrants from time to time.

Though he did not waive his right to insist on cash payments, he received in payments $29,039.97 in cash, and $12594.83 in county warrants. These warrants were at 30 per cent. discount.

Plaintiff then presented his claim to the County Court for the balance due him, including therein, the sum of $3,778.45, being the amount of discount on the warrants he had received.

The court refused to allow this item, and on a settlement, issued to him warrants for the balance found due. He presented these warrants to the Treasurer of the county for payment, who endorsed thereon that there was no money in the treasury, and then he left them with that officer and presented his demand against the county, for the amount of the warrants, as also for the amount which he claimed he had lost by reason of discounts as above stated.

The County Court refused the allowance of the claim and their judgment was affirmed in the Circuit Court.

I know of no law in this State, which would authorize a County Court to discount its warrants, in payment of a...