Holloway v. Howell County

• Decision Date: 29 February 1912
• Parties: HOLLOWAY et al. v. HOWELL COUNTY.
• Court: Missouri Supreme Court

144 S.W. 860

240 Mo. 601

HOLLOWAY et al. v. HOWELL COUNTY.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. COUNTIES (§ 195) — COUNTY TAXES—APPORTIONMENT TO ROAD DISTRICT—STATUTES —APPLICATION.

Rev. St. 1909, § 10594, provides that the county court shall, as county taxes are collected and as the board of commissioners of road districts "shall make application," draw warrants on the county treasurer for an amount bearing such a proportion to the entire amounts of the year's taxes collected on property in the road district as the amounts annually appropriated or expended for road and bridge purposes shall bear to the total revenue for that year. Held, that where no application was made by the commissioners of a special road district for a proportion of the county revenue for certain years, and there were no contracts outstanding or district debts existing for those years, the road district was not entitled to recover its proportion of such revenue for such years.

2. MANDAMUS (§ 121) — APPORTIONMENT OF COUNTY FUNDS—ROAD TAXES.

A special road district's right to a proportion of the county revenue for road purposes, as authorized by Rev. St. 1909, § 10594, is enforceable by mandamus.

3. COUNTIES (§ 195) — COUNTY REVENUE— SURPLUS—APPLICATION.

Any surplus of county revenue remaining after payment of county indebtedness and obligations for a current year under specified statutory conditions may be transferred to proper funds, and used for county purposes for ensuing years or existing deficits, if any.

4. COUNTIES (§ 150)—FINANCIAL AFFAIRS— DEBTS.

While counties may anticipate the revenues for the current year, they must be run on a cash system, and may not create debts in excess of revenue.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Suit by R. F. Holloway and others against Howell County. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. P. Campbell and N. B. Wilkinson, for appellants. J. L. Bess, for respondent.

LAMM, J.

Suit in equity for an accounting "and for all equitable relief which the facts of the case warrant." Brought in the Howell circuit court in 1908, the regular judge disqualified himself, and Henry D. Green, Esq., of the Howell bar, was selected as special judge. Qualifying, he tried the case. From a decree for defendant, plaintiffs appeal.

According to the proof, the individuals in part composing the aggregation of plaintiffs bear the official relations to the Willow Springs special road district indicated in the title of the cause and alleged in the bill. It appears, also, that the real plaintiff, the Willow Springs special road district (for convenience, hereinafter called the "district"), is a special road district six miles square, including Willow Springs, a city of the fourth class, which district was organized in March, 1903, under the act of March 9, 1895 (Laws of 1895, p. 253 et seq.). That act was carried forward as article 10, c. 151, R. S. 1899, and is again carried forward with amendments made in 1903 (Laws of 1903, pp. 260, 261), and in 1909 (Laws of 1909, p. 765), and in 1907 (Laws of 1907, p. 414), into R. S. 1909, as article 6 of chapter 102. It was further amended in 1911. Laws of 1911, p. 370 et seq. The original act apparently gave the commissioners of the district the same power to contract given road overseers. There is, however, by design or inadvertence a remarkable omission, viz., in the act not making the district a body corporate or giving it a name or any power to sue or be sued. Its corporate name, body, and power to sue and be sued were first given by legislative grant in the Laws of 1909, p. 765. No point is made on such legislative lack of power, and we pass the matter by without inquiring into the legal significance of such omission.

The object of this suit is to have an accounting in equity against the county for an alleged share of the taxes levied and collected by Howell county as "county revenue" in the years 1903, 1904, 1905, and 1906; that is, the suit travels on the theory the relation of debtor and creditor existed between the county and the district by contract express or implied, or that the obligation to pay arose out of some fiduciary relation between the two. In no other way could an "account" exist, or the right to an "accounting" spring. The allegation of the bill is that there is "due" the district for 1903 the sum of $389.82; for 1904, the sum of $389.82; for 1905, the sum of $427.68; for 1906, the sum of $451.50—for which total with interest judgment is asked. The proof is of such sort that, if any recovery is proper, the total of those sums is the measure of recovery.

It is alleged in the bill that in 1903 the county court of Howell county levied 50 cents to the $100 of valuation on all property subject to taxation in the district "for county revenue" for the current year; in 1904, 40 cents; in 1905, 40 cents; in 1906, 50 cents. The proof, as we gather, is that these levies were on property in the whole county, including, of course, the district in question. The district got no part of those levies, and on that fact the right to relief is predicated. In addition to the 50 cents levy above in 1903, the county court levied a tax on all property in the county of 10 cents on the $100 valuation for "road purposes"; in 1904, in addition to the 40 cents levy above, it levied on property in the district outside of the city of Willow Springs 20 cents "as a road tax"; in 1905, in addition to the 40 cents levy above, it levied on such property in the district 20 cents "as a road tax"; and in 1906, in addition to the 50 cents levy above, it levied 20 cents for road purposes. While the record is not quite clear, yet the case seems to have proceeded below on the theory that the district got whatever taxes were collected under these special levies, and its share of the general 10 cents road levy in 1903. On the maxim that public officers are presumed to do their duty (absent countervailing testimony), the case may proceed here on the theory the district got its share of all such taxes collected and put in defendant's treasury.

In this connection it appears that Howell county has less than 6,000,000 inhabitants. On the theory (a sound one) that road taxes in the years in hand are but part and parcel of the taxes for "county revenue" or for "county purposes" (R. S. 1899, § 9283, now section 11423, R. S. 1909, Id. § 10595, infra), it is suggested by plaintiffs' counsel that all these road levies were void as being in excess of 50 cents on the $100 valuation allowed for counties of that size. Const. art. 10, § 11. Whether the road tax levies were partly or wholly void as excessive, or for other reason, or whether the infirmity was in the levies for county purposes, we need not inquire. There is nothing in the pleadings or proofs to show that such issue was sprung or threshed out below, nor anything in the record to show that the road levies were not in fact collected by the county and then paid to and used by the district. Under such circumstances, it is not apparent how the alleged illegality of these special road levies affects the merits a whit, or why we should go into that question at all.

We pause long enough to remark there is a precept that every man is presumed to know the law. But should not that precept be amended so as to read, every man is presumed to know the law, except the road law? Certain it is that in some of its features it is a tangled skein of incongruities and ambiguities, if not absurdities. Some...