Decker v. Deimer

• Decision Date: 21 June 1910
• Citation: 129 S.W. 936,229 Mo. 296
• Parties: DECKER et al. v. DEIMER et al.
• Court: Missouri Supreme Court

129 S.W. 936

229 Mo. 296

DECKER et al. v. DEIMER et al.

Supreme Court of Missouri.

June 21, 1910.

1. COUNTIES (§ 161)—CREATION OF COURTHOUSE FUND — IMPAIRMENT OF OTHER FUNDS.

An order of the county court of a county, providing that the surplus in the county funds shall be set aside as a courthouse fund for the purchase of a site and the erection of a courthouse, is not illegal merely because some criminal cost bills previously incurred were refused payment when subsequently presented, in the absence of evidence of absence of money in the proper fund to pay them.

2. COUNTIES (§ 53)—RECORDS—CONCLUSIVENESS.

The county court speaks by its record only, and a conversation of a judge outside the record of his court is inadmissible.

3. COUNTIES (§ 161)—CREATION OF COURTHOUSE FUND — IMPAIRMENT OF OTHER FUNDS.

An order of the county court entered February 4, 1909, providing that the surplus in the county funds shall be set aside for a courthouse fund for the purchase of a site and the erection of a courthouse, is not illegal merely because the court in that year abandoned the building of a bridge, in the absence of a showing of the amount of the bids for the bridge, and the state of the road and bridge fund at the time of the rejection of the bids.

4. STATUTES (§ 184)—CONSTRUCTION—LEGISLATIVE INTENT.

The court, in construing a statute, must arrive at the intention of the Legislature, and enforce that intention, and to that end it may consider the former state of the law, the new provision, the evil sought to be removed, and the remedy provided, and so construe the law as to further the remedy and retard the evil.

5. COUNTIES (§ 105)—COURTHOUSE—DISCRETION OF OFFICERS—STATUTES.

Rev. St. 1899, § 6723 (Ann. St. 1906, p. 3320) et seq., authorizing the county court to direct the building of a courthouse when deemed expedient and when there are sufficient funds in the treasury for that purpose, or the circumstances otherwise permit, etc., vests in the county court a discretion in the building of a courthouse when there are sufficient funds in the treasury for that purpose, or the circumstances of the county permit.

6. COUNTIES (§ 161)—MANAGEMENT OF AFFAIRS—PUBLIC POLICY.

The public policy evidenced by Const. art. 10, §§ 11, 12 (Ann. St. 1906, pp. 283, 287), limiting the rate of taxes levied by county courts, and restricting the right of any county to become indebted except by the assent of the voters, and the statutes must be given effect by the courts through judicial construction, which must not be so narrow as to paralyze a sensible administration of the business affairs of a county, where a practical construction will avoid it, and the acts of the county court of a county in transferring the surplus in the various funds of the county to a courthouse fund for the erection of a courthouse do not violate the public policy of the state.

7. COUNTIES (§ 23)—OFFICERS—DISCRETION—REVIEW.

Under Const. art. 10, §§ 11, 12 (Ann. St. 1906, pp. 283, 287), limiting the rate of taxes to be levied by county courts, and restricting the right of a county to become indebted, and Rev. St. 1899, § 9273 (Ann. St. 1906, p. 4260) et seq., limiting the rate of taxes for specified purposes, and directing that no other tax shall be levied except under specified conditions, etc., the county court of a county, levying no taxes for county purposes in excess of the constitutional and statutory limit, has a discretion in making estimates, and, in the absence of fraud, its discretion within the limits prescribed is not reviewable by the courts.

8. COUNTIES (§ 196)—OFFICERS—DISCRETION —REVIEW.

Where the county court of a county provided that the surplus in the county funds should be set apart as a courthouse fund for the erection of a courthouse, and it then levied taxes for county purposes within the statutory and constitutional limit without using the surplus to reduce the taxes, the taxes levied could not be enjoined at the suit of taxpayers in the absence of fraud.

9. TAXATION (§ 498)—INJUNCTION—INVALID LEVY.

Injunction does not lie to arrest a whole tax levy previously made, when it is conceded that the bulk of the taxes are properly laid.

10. COUNTIES (§ 23)—ERECTION OF COURTHOUSE—JUDICIAL DISCRETION.

The discretion of the county court in making plans for the erection of a courthouse will not be reviewed by a court of general jurisdiction proceeding according to the course of the common law, on the ground that the people of the county demand a better courthouse than planned for.

11. FRAUD (§ 16)—NATURE OF FRAUD.

It is a fraud to conceal a fraud.

12. FRAUD (§ 50)—PRESUMPTIONS — BURDEN OF PROOF.

Fraud is not presumed but must be proved, and it cannot rest on conjecture or suspicion.

13. TAXATION (§ 498)—LEVY—FRAUD.

The mere fact that smaller levies of prior years created a surplus did not show that a subsequent levy, sought to be enjoined, was fraudulent or excessive.

14. COUNTIES (§ 161)—FUNDS—TRANSFER OF FUNDS—"SURPLUS."

Under Rev. St. 1899, §§ 1923, 6794, 6795 (Ann. St. 1906, pp. 1311, 3338), providing that the surplus in any fund collected by a county for a specific use may be appropriated to any other legitimate use, and declaring that when there is a balance in the county treasury to the credit of any special fund which is not needed for the special purpose the county court may transfer the balance to a courthouse fund for the erection of a courthouse, and when all warrants and debts properly chargeable to a fund in any one year are paid, the residue is a "surplus" and may be transferred.

15. STATUTES (§ 158)—IMPLIED REPEALS.

Repeals by implication are not favored, and the court must harmonize and preserve the whole body of the law when that can be done.

16. COUNTIES (§ 105)—ERECTION OF COURTHOUSE—STATUTES.

Rev. St. 1899, § 6723 (Ann. St. 1906, p. 3320) et seq., authorizing the county court to provide for the erection of county buildings when deemed necessary, and when there are sufficient funds in the county treasury for that purpose, etc., are not repealed by the Cottey act (Laws 1879, p. 185; Rev. St. 1899, § 9273 et seq. [Ann. St. 1906, p. 4260 et seq.]), providing for the collection of taxes for specified purposes, including a tax for county expenditures, etc.

In Banc. Appeal from Circuit Court, Greene County; C. H. Skinker, Special Judge.

Action by J. E. Decker and others against B. J. Deimer and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

J. P. McCammon, for appellants. Roscoe Patterson and Edgar P. Mann, for respondents.

LAMM, J.

Injunction in the circuit court of Greene, brought May 11, 1909. No temporary restraining order was asked. November 30th plaintiffs filed an amended bill. The abandoned bill is not preserved in the record, and we know nothing of its allegations.

In substance the amended bill alleges that Bowland was treasurer of Greene county; that Bowman is a commissioner appointed to select a site for a courthouse in Springfield; that Deimer is the presiding justice, and Reed and Appleby associate justices, of the county court of Greene county; that in 1908 "and prior years" there was levied a tax of 50 cents on the $100 valuation of property in that county for ordinary current expenses; that on February 4, 1909, the majority of said county court, Deimer and Reed, over the dissent of Appleby, in violation of law and their duty, entered an order reciting, inter alia, that there was on that day in the hands of the county treasurer a surplus of $50,000 collected from the taxes of the year 1908 and prior years, assessed and levied for county purposes, which sum had not been appropriated otherwise; that such alleged surplus (up to that time apportioned on the books of the treasurer among the various county funds) be set aside and appropriated for the purpose of purchasing a site and building a new courthouse for Greene county; that the treasurer transfer said sum on his books from said various county funds to a fund for that purpose (the same being the only money in said courthouse fund); and that a new courthouse be built therewith to cost, with the site, not exceeding $100,000.

The bill goes on to allege that said moneys were proceeds of taxes levied and collected in the years mentioned for ordinary current county expenses, and the same would be required "during the current year" in the payment of necessary county purposes—that is, care of paupers, building bridges, repairing roads, the pay of road overseers, salaries of county officers, the per diems and mileage of witnesses, fees of grand and petit juries, and pay of judges and clerks of elections; that said moneys are not a "surplus" for use in buying a site and building a courthouse; that said judges had no warrant in law to use said funds for that purpose or for any purpose other than the one for which the taxes were levied and collected; that they had no right to make such order of transfer to a "courthouse fund," or draw any warrants thereon except for the payment of ordinary current expenses, nor had the defendant Bowland the right as treasurer to make such transfer or honor any warrants drawn thereon for buying a site or building a courthouse, or for any purpose other than the one for which the taxes were levied and collected; that the funds aforesaid constituted a trust fund for their original purposes, and, if there was any of such moneys left at the end of the year 1908, it was the duty of the court (in making the estimate for the tax levy for 1909) to reduce the taxes for that year by the amount unexpended in the former year and make a new levy sufficient to produce the balance required to pay the ordinary current expenses for 1909 and no more; that the purpose of such site and the erection of such building are not ordinary current expenses of the county, hence the orders and acts of said officers in that behalf were illegal; that in pursuance of such illegal purpose the order of February 4, 1909,...