Elkins-Swyers Office Equipment Co. v. Moniteau County

• Court: Missouri Supreme Court
• Writing for the Court: BOHLING
• Citation: Elkins-Swyers Office Equipment Co. v. Moniteau County, 357 Mo. 448, 209 S.W.2d 127 (Mo. 1948)
• Decision Date: 08 March 1948
• Docket Number: 40556
• Parties: Elkins-Swyers Office Equipment Company, a Corporation, Appellant, v. County of Moniteau, a Political Subdivision of the State of Missouri

209 S.W.2d 127

357 Mo. 448

Elkins-Swyers Office Equipment Company, a Corporation, Appellant, v. County of Moniteau, a Political Subdivision of the State of Missouri

No. 40556

Supreme Court of Missouri

March 8, 1948

Appeal from Moniteau Circuit Court; Hon. Sam C. Blair Judge.

Affirmed.

Roy L. Kay and L. P. Embry for appellant.

(1) Private property may not be taken for public use without just compensation. Sec. 21, Art. II, (1875) Constitution of Mo.; 5th Amendment, Constitution of U.S. (2) Those constitutional provisions are self-enforcing. State ex inf. Norman v Ellis, 325 Mo. 154, 28 S.W.2d 363. (3) The trial court's holding aforesaid is contrary to the constitutional provision that there shall be a certain remedy for every injury. Sec. 10, Art. II, (1875) Constitution of Mo. (4) Neither the provisions of Sec. 48, Art. IV, (1875) Constitution of Missouri, nor any "general law" referred to in the trial court's judgment herein, can preclude appellant's rights to recovery under Sec. 21 Art. II, (1875) Constitution of Missouri, and under, or under, the Fifth Amendment to the Constitution of the United States because, even if said Sec. 48 of Art. IV or any such "general law" could override said Sec. 21, Art. II, it or they would still conflict with said Fifth Amendment prohibiting the taking of private property for public use without just compensation, and therefore, be void. Art. 6, Constitution of United States; Household Finance Corp. v. Shaffner, 203 S.W.2d 734; State v. Castleton, 255 Mo. l.c. 211. (5) Sections 3633 and 3635, R.S. 1939, do not purport to vest exclusive authority to order the rebinding of records in the circuit and county courts. They simply provide an additional safeguard to insure that the records are kept in proper condition if the circuit clerk and recorder fails to discharge a plainly inherent duty of his office by himself seeing that the records are kept in proper condition. Therefore, the fact that orders were not made under said Sections 3633 and 3635 could not preclude appellant's right to recover herein. Secs. 3633, 3635, R.S. 1939. (6) The fact that such rebindings were not "budgeted" could not preclude appellant's right to recovery. It is admitted that the balance in Class 6 was for far more than the amount appellant seeks to recover. Such items as the rebinding of, and for, the records constitute a "lawful purpose". Expenditures for "lawful purposes", when funds are available in Class 6, may be made without having been included in the budget. Secs. 10911, 10912, R.S. 1939.

Frank J. Quigley and Gallagher & Gates for respondent.

(1) When the county court of any county in this state shall deem it necessary, it shall have the power to order any of the books or records in or belonging to the office of recorder of deeds of such county to be rebound, and to allow a reasonable compensation therefor, to be paid out of the county treasury. Sec. 3635, R.S. 1939. (2) The judge of the circuit court is authorized to order any record of the circuit court to be rebound. Sec. 3633, R.S. 1939. (3) The County Budget Law requires each county officer to file an estimate of the expenses of his office for each year, on or before January 15th, for the entire year. Such estimate of each officer for the entire year is adjusted, determined and allowed by the county court after due consideration of the anticipated revenue for the year and all necessary expense of the county for that year. The necessary expenses are classified into six different classes and each officer is finally permitted to draw a proportionate part allotted to his office from each class. Any warrant issued contrary to the County Budget Law is void. Art. 2, Chap. 73, R.S. 1939, and amendments thereto; Laws 1941, pp. 649-653; Missouri-Kansas Chemical Corp. v. New Madrid County, 139 S.W.2d 457, 345 Mo. 1167; Carter-Waters Corp. v. Buchanan County, 129 S.W.2d 914; Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186. (4) The County Budget Law is not unconstitutional. Traub v. Buchanan County, 341 Mo. 727, 108 S.W.2d 340. (5) The statute referring to Class 6 claims, concludes as follows: "The court shall show on the budget estimate the purpose for which any funds anticipated as available in this class shall be used." Any lawful claim to be paid out of Class 6 must first be budgeted. Sec. 10914, Laws 1941, p. 652. (6) All prior general statutory laws authorizing the expenditure of county money by county officers, which are in conflict with the County Budget Law are by implication repealed. Insofar as Secs. 1990, 13148, 13768 and 13291, R.S. Missouri, 1939, conflict with the County Budget Law, they are by implication repealed. Vining v. Probst, 186 S.W.2d 611; Young v. Greene County, 119 S.W.2d 269; State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Comm., 275 Mo. 60. (7) The county court shall have control and management of the property, real and personal, belonging to the county, . . . and to audit and settle all demands against the county. Sec. 2480, R.S. 1939. (8) Persons dealing with county courts or county officers are bound to take notice of the extent of their power and authority. Butler v. Sullivan County, 108 Mo. 630; Simpson v. Stoddard County, 173 Mo. 421; Barnard & Co. v. Knox County, 105 Mo. 382. (9) The voluntary imposition by any one of services or property upon a municipal corporation, without its knowledge or consent, does not create an action for the taking of private property for public use without just compensation. Sec. 21, Art. II, Constitution of Missouri 1875. (10) Section 21, Article II, and Section 48, Article IV, of Missouri Constitution, 1875, must be read together, and no action under Section 21 can be maintained without compliance with Section 48. Otherwise, said Section 48 would be meaningless, and of no effect. Donovan v. Kansas City, 175 S.W.2d 874, Id., 179 S.W.2d 108. (11) No claim may be paid by any county under a contract or agreement not entered into by express authority of law; and all such unauthorized agreements or contracts shall be null and void. Sec. 48, Art. IV, Missouri Constitution, 1875; Donovan v. Kansas City, supra. (12) Appellant cannot recover on the theory of ratification, estoppel, implied contract, or eminent domain; and appellant cannot recover under the provisions of Section 21, Article II, of the Missouri Constitution, or Amendment No. 5 of the United States Constitution, or under any other provision of either the Constitution of Missouri or the United States Constitution, and is precluded by Section 48, Article IV, Constitution of Missouri, and the general law. Secs. 21, 48, Arts. II, IV, Missouri Constitution, 1875; Amendment No. 5, United States Constitution; Kansas City v. Rathford, 186 S.W.2d 570; Donovan v. Kansas City, 175 S.W.2d 874; Id., 179 S.W.2d 108.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Elkins-Swyers Office Equipment Company, a corporation, seeks to recover from the County of Moniteau, a political subdivision of the State of Missouri, $ 663.01 for the rebinding of specified deed record and circuit court record books in the office of the Circuit Clerk and Recorder of Moniteau county, Missouri. The stipulation filed of record discloses: The bindings on the records here involved were aged, worn, and in a bad state of preservation. Their rebinding was had at the special instance and request of the Circuit Clerk and Recorder of Moniteau county, Missouri, in 1944, and without the knowledge or consent of the County Court or the Circuit Court of Moniteau county, Missouri, and, consequently, without any order or orders of either of said courts as provided by Secs. 3633 and 3635, R.S. 1939. ^[1] The rebinding was also had without the said Circuit Clerk and Recorder asking and obtaining the proper estimate and budget therefor under Ch. 73, Art. 2, R.S. 1939, as amended by Laws 1941, pp. 649-653. Said records are now in the custody of said Circuit Clerk and Recorder and in public use. The charges made are reasonable, but payment was refused by the County Court and has never been made. It was also stipulated that at the end of said year 1944 the following balances remained in the county revenue after the payment of all outstanding accounts: Class 1 $ 868.11; Class 2 $ 12.33; Class 3 $ 49.19; Class 4 $ 355.49; Class 5 $ 33.75; Class 6 $ 1913.59. Thus, there remained in Class 6 of defendant county's budget more than enough to pay for the rebinding.

Plaintiff appeals from an adverse judgment and to justify a recovery contends that in the circumstances of the instant case its claim was not required to be budgeted under the County Budget Law and also seeks to invoke and apply certain constitutional provisions, particularly the inhibition against the taking of private property for public use without just compensation.

The records involved are required to be kept. (Consult Secs. 1990 and 13148.) Each clerk of courts of record ". . . shall provide and preserve suitable books . . . for his office, and keep a correct account thereof; and each court shall audit such accounts, and allow such as shall be reasonable ." (Sec. 13291.) Article VI, Sec. 36, Mo. Const. of 1875, made the respective county courts "a court of record" with "jurisdiction to transact all county and such other business as may be prescribed by law." State ex rel. v. McElroy, 309 Mo. 595, 274 S.W. 749. They, whenever deemed necessary, "have power to order any of the books or records in or belonging to the office of recorder of deeds of such county to be rebound . . ." (Sec. 3635); and judges of courts of record "have power to order any of the books or records in the clerk's offices of their respective courts to be rebound . . ." (Sec. 3633). County courts have the control and management of the property, real...