Kingsberry v. Pettis Cnty.

• Decision Date: 31 July 1871
• Citation: 48 Mo. 207
• Parties: LEMUEL S. KINGSBERRY et al., EXECUTORS OF JEREMIAH KINGSBERRY, DECEASED, Plaintiffs in Error, v. PETTIS COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 207

LEMUEL S. KINGSBERRY et al., EXECUTORS OF JEREMIAH KINGSBERRY, DECEASED, Plaintiffs in Error,

v.PETTIS COUNTY, Defendant in Error.

Supreme Court of Missouri.

July Term, 1871.

Error to Pettis Circuit Court.

J. Montgomery, with F. P. Wright, for plaintiffs in error.

By her contract the county has pledged a fund for the payment of this warrant, and cannot be allowed now to say that by the terms of her contract she was to pay the debt only so long as the fund was designated as the “road and canal fund.”

She cannot receive and enjoy this fund for other purposes, and at the same time use and receive the benefit of this work and labor performed under the contract, released from any and all liability therefor. (Trustees W. & E. Canal Co. v. Beers, 2 Black, S. C., 448.)

The act approved March 21, 1868 (Sess. Acts 1868, p. 42), clearly empowers the County Courts to issue bonds and levy taxes for the very purpose of paying indebtedness of this nature.

After the conversion of this fund, the county is liable, out of her own funds, for the debt. The provision that the warrant is payable out of the road and canal fund, does not preclude us from inquiring whether this provision of the warrant purports to create a debt or liability against the county. Here is an act, sanctioned by legislative approval, pledging a fund for the payment of internal improvements. The County Courts, as authorized by this act, contract with parties to make improvements, on the faith of this fund. The parties enter upon the work; the improvements are finished, accepted and enjoyed, when the Legislature, by a single enactment, destroys the very fund set apart for the purpose of paying for the improvements. This the courts will not permit. (Newell v. The People, 3 Seld., N Y., 9.)B. G. Wilkerson, for defendant in error.

The Circuit Court did not err in sustaining the demurrer to plaintiffs' petition and rendering judgment for the defendant; since Pettis county is not liable to pay said warrant or any part of it out of her own proper fund. (Pettis County v. Kingsberry, 17 Mo. 479.) The only difference between that suit and this is, that since that case was determined the Legislature, in pursuance of the constitution of 1865, has diverted the road and canal fund from that purpose and made it a part of the school fund. This diversion of the road and canal fund cannot possibly make said county liable on a contract on which she was not before liable, and which she never made.

CURRIER, Judge, delivered the opinion of the court.

This is a suit upon a county warrant made payable out of the “road and canal fund” of Pettis county. The same warrant was sued upon in Kingsberry v. Pettis County, and the decision in that case must control our action in this. (See 17...