Decker v. Diemer

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

129 S.W. 936

229 Mo. 296

J. E. DECKER et al., Appellants, v. B. J. DIEMER et al

Supreme Court of Missouri

June 21, 1910

Appeal from Greene Circuit Court. -- Hon. C. H. Skinker, Special Judge.

Affirmed.

W. D Tatlow and J. P. McCammon for appellants.

(1) County courts have no implied power to levy taxes. The power must be expressly given by statute, and if conditions as to the exercise of the power are essential, they must be followed. When such conditions are made essential to the exercise of the power they must be observed before the power can be lawfully exercised. State ex rel. v Railroad, 87 Mo. 239; R. S. 1899, secs. 9273-4. The evidence showed that the levy made by the court for current county expenses is the same levy which had, in the year preceding, according to the recital of the order of the court, produced a surplus of $ 50,000. Added to this is the additional levy for road and bridge purposes of twenty cents on the hundred dollars valuation, which relieved the current expense fund of the amount necessary to be levied for that purpose the preceding year -- in effect increasing the levy to a seventy cent instead of a fifty cent levy. To these add the facts that the wealth of the county increased a million and a quarter dollars in the year, still further reducing the necessity for a large levy, and that the court is going on with the building of a large courthouse 100 by 200 feet and four stories in height, of stone and reinforced concrete, and that no explanation is vouchsafed by the judges, though present at the trial in an action which calls upon them to purge their consciences, and the evidence is conclusive that the purpose and intention of the defendant judges is to levy a tax which, though ostensibly for current county expenses is in fact to accumulate an excess to be used in the building of a courthouse. If the order made by them had accurately stated what they were doing, it would have stated that they levied so many cents on the $ 100 for current county expenses and so many cents for the purpose of building a courthouse. This, without an order of the circuit court under the procedural limitations and conditions of section 9274, they could not do. The law requires a true record of the proceedings in fact had by the court, and the falsification of the record as to the real purpose will not avail when the real interest is shown. State ex rel. v. Cunningham, 153 Mo. 653. (2) The Legislature has limited the power of the court in making a levy to the necessity for county purposes. R. S. 1899, sec. 9280. But in making the estimate it must make an honest estimate for the particular purpose. This obligation is not at all weakened by the permission given to eke out the deficiency of one appropriation from the surplus of another when the honest estimates have proved to be erroneous. State v. Freeholders, 29 A. 332; Ault v. Hill County, 116 S.W. 359; Ault v. Hill County, 111 S.W. 426; Iron Co. v. Hart, 45 S.W. 321; Railroad v. Dawson County, 11 N.W. 307; Railroad v. Board, 61 S.E. 699; State ex rel. v. Hopkins, 41 P. 206; Brown v. Clemmer, 89 P. 325. (3) Funds to build a courthouse may be legally levied. That other provisions for raising funds with which to build a courthouse are made by the statute is sufficient to show it was not the intention of the Legislature to pay for it out of the general fund. State ex rel. v. Macon County, 68 Mo. 29. The Constitution and the Legislature have provided three ways of supplying the means to build a courthouse. 1. By submitting the question of a bond issue to the voters. 2. By submitting to a vote the question of a special tax for the purpose. 3. By presenting through the prosecuting attorney a petition to the circuit court, showing the necessity, and on obtaining the order of the court or judge, making such a levy within the limits of the annual levy. These ample and extraordinary provisions, as in the Macon county case stated, preclude any resort to the funds provided for the ordinary expenses of the county, in the payment of such extraordinary expenditures as are here involved. That such extraordinary expenditures require the levy to be made on proper procedure by order of the circuit court is decided and held by this court in other cases. State ex rel. v. Railroad, 130 Mo. 243; State ex rel. v. Railroad, 97 Mo. 296; State ex rel. v. Railroad, 87 Mo. 236; State ex rel. v. Railroad, 92 Mo. 152; State ex rel. v. Railroad, 169 Mo. 577. (4) The funds raised for any certain purpose are impressed with a trust in the hands of the officers, and may only be legally expended for that purpose. 27 Am. and Eng. Ency Law, p. 807; Coler v. Board, 89 F. 257; State ex rel. v. Cottengin, 172 Mo. 129; Knox County v. Hunolt, 110 Mo. 67; Book v. Earl, 87 Mo. 246.

Roscoe C. Patterson and Edgar P. Mann for respondents.

(1) (a) The order of the county court of February 3, 1909, is prima-facie evidence of the truth of the recitals therein contained. State ex rel. v. Railroad, 101 Mo. 149; State ex rel. v. Bridge Co., 134 Mo. 339. (b) And in proceedings to enjoin the county judges from levying illegal taxes it cannot be presumed, in the absence of proof, that they would be guilty of making such a levy in violation of the law. State ex rel. v. Hagar, 92 Mo. 511. (2) (a) The recitals of the order of the county court of February 3, 1909, show that the court was proceeding toward the erection of a courthouse in strict conformity to the statutes. R. S. 1899, sec. 6723. (b) And that in the subsequent orders made in the proceedings and shown in the record, they proceeded exactly according to the terms of the statutes, and had so proceeded up to the trial of this case. R. S. 1899, secs. 6725-9. (3) It is not necessary, when there are sufficient funds in the county treasury for that purpose not otherwise appropriated, or the circumstances of the county will otherwise admit, to submit a proposition to the people to vote bonds or a special levy to build a courthouse. Under such condition of facts, the erection of the building and the appropriation of the money is entirely in the discretion of the county court. R. S. 1899, sec. 6723; State ex rel. v. Howell Co., 58 Mo. 583; State ex rel. v. Bollinger, 219 Mo. 209; Wolcott v. Lawrence Co., 26 Mo. 276; Anderson v. Ripley Co., 181 Mo. 62. (4) Neither was the county court inhibited by the provisions of section 1923 from transferring this fifty thousand dollars to a courthouse fund, as they did by their order of February 3, 1909. The levy authorized by law is an annual levy. Each year, or the revenues, rather, of each year, must provide for the indebtedness of that year. After that is done the revenue becomes a surplus. The purposes for which the fifty thousand dollars transferred to the court house fund had been levied, to-wit, the payment of the obligations incurred by the county for 1908 and years prior, had been satisfied. Said section 1923, upon which appellants rely with such show of confidence, expressly warrants this transfer and appropriation under these circumstances. (5) The fifty thousand dollars transferred to the courthouse fund by the order of February 3, 1909, was levied for a sacred purpose and was a trust fund for that purpose, towit, to meet the obligations of the county for current expenditures for the specific years for which the levies were made. For instance, the levy for the year 1908 could only be used to meet the obligations for that year, and the funds were sacred to that purpose, but after those were satisfied the funds were no longer sacred and the balance was a surplus that might be applied to other legitimate purposes for the benefit of the county. It was then, in the language of the section, not otherwise appropriated, and might in the discretion of the county court be used to build a courthouse. R. S. 1899, secs. 6723 and 1923. It may, then, be applied to obligations not of the character for which it was originally levied. Anderson v. Ripley Co., 181 Mo. 64; Book v. Earl, 87 Mo. 250; Andrews Co. v. Schell, 135 Mo. 39; State ex rel. v. Railroad, 169 Mo. 576; State ex rel. v. Johnson, 162 Mo. 630; State ex rel. v. Cottengin, 172 Mo. 134; State ex rel. v. Payne, 151 Mo. 663.

LAMM J. Burgess, J., not sitting.

OPINION

In Banc.

LAMM, J.

-- Injunction in the circuit court of Greene county, 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 Diemer 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 fifty 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, Diemer 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...