Book v. Earl

• Decision Date: 31 October 1885
• Citation: 87 Mo. 246
• Parties: BOOK et al. v. EARL et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 246

BOOK et al.

v.EARL et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Woodson, Green & Burnes for appellants.

(1) The power of the county court to alter, repair, or build any county buildings which have been erected, is expressly conferred by statute. R. S., sec. 5337; Walker v. Linn Co., 72 Mo. 650. The proviso in Revised Statutes, section 5370, does not make any warrants illegal, but is a simple direction of the order of their payment where all the warrants to which it refers are issued in conformity to law and within the powers of the court. (2) The county court of Holt county, on the second day of May, 1881, having in the usual way provided an income and revenue for that year of $28,000, was empowered by the laws of the state, at that time, to enter into and bind itself by the terms and conditions of the Bennett contract. This contract was made, and on the same day an order was made appropriating from the funds of the county, the sum of $8,500. These facts appear from the record of the court, and cannot be controverted by parol testimony. Dennison v. St. Louis, etc., 33 Mo. 168; Medlin v. Platte Co., 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598. (3) Admitting, however, that section 5370, of the Revised Statutes, makes an absolute preference in favor of certain warrants, and makes illegal all other warrants, provided these preferred warrants aggregate an amount sufficient to exhaust the income and revenue of the county, still, before a court could be justified in applying this principle, it would certainly be necessary for those asking it to establish by evidence the fact that these subsequently issued warrants were issued for services of this preferred kind. This evidence the plaintiff below did not attempt to produce, but on the contrary, the evidence, so far as it relates to this matter, shows that $5,600 of these warrants were issued for work performed in a previous year. (4) The repairing of a court house is an expense necessary to maintain the county organization within the meaning of Revised Statutes, section 5370. (5) The plaintiffs should have alleged and proved that they were tax payers.

James Limbird and Johnston & Anthony for respondents.

(1) The county court exceeded its authority in making the contract in question, as the county had no funds during the year 1881 to meet the expense called for by said contract. Const., art. 10, sec. 12. (2) The issuing to Bennett the warrants on the treasurer of Holt county was an attempt on the part of the county court to pay either a debt in fact or an assumed one by the county to Bennett. International Bank v. Franklin Co., 65 Mo. 105; Springfield v. Edwards, 84 Ill. 626; Law v. People, 87 Ill. 385; Fuller v. Heath, 89 Ill. 296; Fuller v. Chicago, 89 Ill. 282. (3) The debt of Bennett was not an ordinary current debt. State ex rel., etc., v. Macon County Court, 68 Mo. 28; Vanover et al. v. Justices, etc., 27 Ga. 354. (4) Where the county court undertakes to impose an illegal burden on the citizen he has the right to enjoin the proceeding in its inception, and at every subsequent step until it reaches him by an actual levy on his property. Overall v. Ruenzi, 67 Mo. 203; Wagner v. Meety, 69 Mo. 105; Newmyer v. Mo. & Miss. R. R. Co., 52 Mo. 81-89; 2 Dill. Mun. Corp. (2 Ed.) secs. 727-738; Mathis v. Cameron, 52 Mo. 81. (5) Plaintiffs do allege in their petition that they are tax paying citizens.

NORTON, J.

This suit was instituted by plaintiffs, as tax payers of Holt county, on behalf of themselves and other tax payers of said county, to enjoin and restrain the payment of certain warrants issued by the county court of said county to Moses Bennett. It is substantially averred in the petition that in the year 1881 the county court entered into an original, and two supplementary contracts with Moses Bennett, in which it was sought to bind the county to pay said Bennett the sum of $9,600, for making three additions to and remodeling the court house of said county, in the town of Oregon; that said work was to be done in the year 1881, and warrants aggregating said amount were issued to said Bennett during said year. It is then averred that the debt thus attempted to be contracted was in excess of the entire amount of revenue which could come into the treasury from all sources for county purposes for that year; that the court was, for that reason, without power to contract the debt, and that the warrants issued to pay it were illegal and void.

The answer, besides a general denial, sets up that the work to be done under the contracts was executed according to the contract; that it was reasonably worth the price agreed to be paid; that it was necessary work to be done, and that when done it was accepted and received by the county, and has ever since been used, and that the county court, at the time of the contract, appropriated $8,500 as a “court house fund,” and the funds of the county were sufficient to pay the debt contracted.

On the trial the issues were found for the plaintiffs, and a decree entered enjoining and restraining the treasurer from paying said warrants, from which action of the court defendants have appealed.

It is clear, from the evidence in the case, that by virtue of a contract entered into on the third of May, 1881, with Moses Bennett, and two supplemental contracts thereafter, made in the same year, under which said Bennett was to build three new additions to and remodel the court house in the town of Oregon, according to certain plans and specifications, the county court undertook, and did, by the terms of said contracts, obligate the county to pay said Bennett sums in the aggregate amounting to $9,600. The evidence further shows that during the year 1881 the work was completed according to contract, and accepted by the county court, and warrants amounting to $9,600 issued to Bennett, payable out of the common fund of the county, which were not paid for want of funds. The evidence further shows that to meet the ordinary current expenses of the county for the year 1881, the county court levied a tax of fifty cents on the hundred dollars valuation on all taxable property, which was all that they could impose under the constitution, the total valuation of taxable property in Holt county being less than six million dollars. It also shows that the revenue derivable from this tax, and all other sources of taxation, for the year 1881, amounted to $28,000, which sum the county court on the fourth of May, 1881, appropriated, as required by section 6818, of Revised Statutes, which appropriation was certified to the treasurer of the county, as required in section 6819, Revised Statutes. The evidence also shows that the county court at its May term, 1882, appropriated out of the revenue provided for that year, the sum of eleven thousand dollars for the payment of said warrants issued in 1881, and directed the treasurer to pay them. This state of facts presents the question whether, under the constitution and laws of the state, the county court had the power to contract the debt in question in excess of the revenues provided for the year 1881.

We are of the opinion that it had no such authority, for the following reasons: It is provided by section 11, article 10, of the constitution, as follows: “Taxes for county purposes * * * may be levied on all subjects and objects of taxation. * * * For county purposes the annual rate on property, in counties having six millions or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars valuation. * * * For the purpose of erecting public buildings in counties, cities, or school districts, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two-thirds of the qualified voters of such county, city, or school district, voting at such election vote therefor.”

Section 12, article 10, provides as follows: “No county * * * shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate, exceeding five per centum on the value of the taxable property therein. * * * Provided, That with such assent any county may be allowed to become indebted to a larger amount for the erection of a court house or jail. And, provided further, That any county * * * incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same.”

The restrictions and inhibitions contained in these constitutional provisions were...