Int'l Bank of St. Louis v. Franklin Cnty.

• Decision Date: 30 April 1877
• Citation: 65 Mo. 105
• Parties: INTERNATIONAL BANK OF ST. LOUIS v. FRANKLIN COUNTY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 105

INTERNATIONAL BANK OF ST. LOUIS

v.FRANKLIN COUNTY, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Franklin Circuit Court.--HON. D. Q. GALE, Judge.

John W. Booth for appellant.

These special statutory instruments are in no sense direct unqualified promises to pay. That the manner in which they are to be drawn (see W. S. of 1872, p. 415 § 31), the fund out of which, and the order in which they are to be paid, are all expressly and specially regulated by statute, see W. S. 1872, page 410 § 8, page 411 §§ 9 and 10. They are payable when the ordinary revenue of the county brings into the county treasury funds sufficient, first for the payment of all like warrants first presented for payment, and then for its payment; and not before that time. Plaintiffs' statement omitting as to each cause of action to state that money appropriated for county expenditures, sufficient for the payment of the whole or of some part of any of plaintiffs' warrants, after setting apart funds sufficient for payment of all like warrants presented to the treasurer of defendant for payment prior to the presentation of respondent's warrant, failed to state facts sufficient to constitute a cause of action against appellant. Howell v. Reynolds County, 51 Mo. 154. The purposes for which counties are organized and to which they are confined render it an impossibility that a county should have property subject to the ordinary process of execution and sale for the satisfaction of a judgment. And with the exception of the cases in which county courts have power to levy special taxes for the payment of certain classes of indebtedness, which power they may perhaps be compelled by mandamus to execute, persons who deal with counties so as to become general creditors must be content to take their pay from the county treasury out of the ordinary revenue of the county, in the manner and according to the order fixed by the statutes authorizing the creation and regulating the payment of county debts.

J. C. Kiskaddon for respondent.

1. An action can be maintained on a county warrant. Wag. Stat. 408 § 4; Jeffries v. Pacific, 61 Mo. 155; Young v. Camden Co., 19 Mo. 309; State v. Clay Co., 46 Mo. 231; State v. Justices Bollinger Co. Ct., 48 Mo. 475; Steel v. Davis Co., 2 Greene (Iowa) 469; Clark v. Polk Co., 19 Iowa 248; Savage v. Crawford Co., 10 Wis. 49; Markwell v. Waushara Co., Ib. 73.

2. It can not be maintained that because the warrants were to be paid “out of any money in the treasury appropriated for county expenditures,” therefore it is necessary to allege in the petition that there was money in the treasury appropriated to county expenditures out of which the warrant could or might be paid. Such an appropriation does not create a fund, nor does the failure to appropriate or appropriate enough discharge the county from its indebtedness. Clark v. Des Moines, 19 Iowa 199; Kelly v. Mayor &c., 4 Hill 263; Pease v. Cornish, 19 Me. 191; Ubsdell v. Cunningham, 22 Mo. 124; Terry v. Milwaukee, 15 Wis. 490; State v. Clay Co., 46 Mo. 231; State v. Justices Bollinger Co. Ct., 48 Mo. 475; Campbell v. Polk Co., 49 Mo. 214; Jeffries v. Pacific, 61 Mo. 155.

Two principles appear to be clearly established by all the cases. These are: 1st. If the payment is to be made on account of a general municipal indebtedness, then the direction in the warrant or order as to what it shall be paid out of, is considered merely as information conveyed to the treasurer on what account of the general fund the payment is made, and the municipality is liable to action on the warrant; and 2d. If the warrant or order shows on its face that it is issued on account of a general municipal indebtedness shared alike by the whole municipality, then the municipality is liable in an action on the warrant, although it may contain a command that it shall be paid out of some particular part of the general fund. The warrants sued on in this case are plainly within both these conclusions.

3. Under our statute it is not necessary for us to allege in our petition that all warrants presented to the treasurer prior to the presentment of the warrant sued on had either been paid or money set apart to pay them, or that all warrants had been provided for. If all warrants presented prior to the presentment of these warrants had been paid, and there was money in the treasury set apart, or which might be set apart, to pay them, then the only thing necessary for the holder to do would be to present them and draw his money, and an action to recover it of the county would be ridiculous. If the treasurer refused to pay such warrants, an action would not lie against the county, but mandamus on the treasurer would be the proper remedy. State v. Treasurer Callaway County, 43 Mo. 228.

Under the statute (Wag. Stat. 415 § 31) the county court cannot make an allowance and order a warrant issued until the debt is due. Yet by the defendant's argument the creditor in attempting to collect a debt then due him is by that very attempt granting to the debtor credit for an uncertain and indefinite period, i. e. until all warrants presented prior to his are paid. The length of that period depends entirely on the amount of the revenue; and that depends to a great extent on the will and caprice of county officials, who may make a levy grossly inadequate and continue to do so from year to year. For this the creditor has no remedy; none by mandamus, for it is a general county indebtedness, which must first be reduced to judgment; none by ordinary civil action, for he has accepted a warrant, and must wait until all warrants presented prior to his are paid. The anomaly is presented of a claim due and not due in the same breath. It is due at the moment of its allowance; three judges gravely consider it and decide that it is due, when, presto! the decision rendered, it becomes due in the dim, misty and uncertain future. This is not the law. Savage v. Crawford Co., 10 Wis. 49; Pelton v. Crawford Co., Ib. 69; Markwell v. Waushara Co., Ib. 73; Montague v. Harton, 12 Wis. 599; Terry v. Milwaukee, 15 Wis. 490

SHERWOOD, C. J.

Action on ten county warrants made payable “out of any money in the treasury appropriated for county expenditures.” The single issue tendered by the answer was contained in the denial that the warrants “were due and payable.” Judgment went for plaintiff. The motion in arrest having questioned the sufficiency of the petition necessitates an examination of its allegations; not to determine whether a demurrer would have been well taken, for we have no doubt on this score, but in order to determine whether the allegations are of such a nature as will, with the intendments which the law will supply, be sufficient after verdict. The petition in brief states the drawing of the warrants in favor of and their delivery to Bauer, that subsequently for a valuable consideration plaintiff became the holder and owner of the warrants, presented the same to the treasurer for payment, which was refused because of no money in the treasury, and that fact duly endorsed on the warrants; that the same were duly registered by the treasurer, who on the order of the county court, in the year 1871 paid plaintiff two years' interest on the warrants; that the warrants were due plaintiff and unpaid, and therefore judgment was asked.

1. COUNTY WARRANTS drawn on general fund, may be sued on when.

The rule in these cases, at common law, is said to be this: “Where a matter is so essentially necessary to be proved that had it not been given in evidence the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contained terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict.” Jackson v. Pesked, 1 Maule & Selw, 234. And doubtless the like rule should prevail even under our code practice, were an appropriate case presented for its application, but certainly not where the evidence is preserved in the bill of exceptions, and that bill shows no evidence tending to supply the defective averment. In such case there is no room for presumptions in favor of the verdict, and both the rule and the reason whereon it is founded must alike cease together. This view obtained in Frost v. Pryor, 7 Mo. 314, and is undoubtedly the correct one. There one of the deeds in the plaintiff's chain of title, owing to a defective acknowledgement, conveyed no title, and it was held that the record showing the contrary, no notice of the title having been perfected could be under these circumstances presumed, and that the case was unlike “those in which an appellate court is required to arrest the judgment from an examination of the declaration alone, unaccompanied by a bill of exceptions preserving the evidence.”

2. COUNTY WARRANT, assignment of.

In the case at bar the evidence is all preserved, and the only endorsements which the warrants declared on bear do not show any assignment to the plaintiff. The statute (§ 34 p. 415 1 W. S.) provides: that “every assignment of any such warrants shall be in the following form:

For value received I assign the within warrant to A. B this _____ day of _______, 18--. Signed. C. D. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.” And the next succeeding section (35) prohibits the treasurer...