Lamar Township v. City of Lamar

• Decision Date: 14 July 1914
• Parties: LAMAR TOWNSHIP v. CITY OF LAMAR, Appellant
• Court: Missouri Supreme Court

169 S.W. 12

261 Mo. 171

LAMAR TOWNSHIP v. CITY OF LAMAR, Appellant

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.

Affirmed.

J. B McGilvray and Edwin L. Moore for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. It may state a case against the collector but not against the city which innocently received the money. 27 Cyc. 865; Case v. Packing Co., 105 Mo.App. 172. (2) It is against equity and the natural justice of the thing for the plaintiff to recover in this case. Hethcock v Crawford Co., 200 Mo. 177. (3) These moneys were not sought to be levied, if at all, under the "special road and bridge tax" of section 11769 which follows the constitutional amendment of 1908, but under section 11767. Green City v. Martin, 237 Mo. 483. (4) There was really no levy for any of the years involved, and Lamar had just as much right to apply the money on the public highways as the township had. Secs. 11705, 11709, 11420, 11582 and 11772, R. S. 1909. (5) "Township charges" of 11705 are broad enough to include road and bridge taxes. State ex rel. v. Piper, 214 Mo. 446. (6) The mutilated and spoliated records of the township board were not admissible; such records should only be written up "from memoranda or minutes made by the secretary." Some of these important entries were made by the clerk years afterward and rested upon nothing more substantial than his memory. "An omission in a record cannot be supplied from conjecture, but only where the context shows clearly what words are to be added." Lincoln v. Chapin, 132 Mass. 472; 34 Cyc. 590; State ex rel. v. Wray, 55 Mo.App. 655; 37 Cyc. 976; State v. Railroad, 135 Mo. 77. (7) Counsel will say a levy was unnecessary: He seemed to think it was necessary in drawing his petition, and why cannot we attack plaintiff's title? Defendant may do so in replevin, conversion, ejectment, etc. Young v. Glasscock, 79 Mo. 574; Eidson v. Hedger, 38 Mo.App. 55; Kirk v. Kane, 87 Mo.App. 281. (8) It was not necessary that defendant show a better title than plaintiff; if as good, it will be sufficient. 27 Cyc. 875; 4 Wait's Actions & Defenses, 511; Bank v. Inv. Co., 160 Mo.App. 380. (9) Money paid under a mistake of law cannot be recovered back. Schell City v. Mfg. Co., 39 Mo.App. 264; Sparks v. Jasper Co., 213 Mo. 237; State ex rel. v. Ewing, 116 Mo. 137; State ex rel. v. Shipman, 125 Mo. 486; Scott Co. v. Leftwich, 145 Mo. 34; State ex rel. v. Hawkins, 169 Mo. 618; Williams v. Carroll Co., 167 Mo. 15; Morgan Park v. Knopf, 199 Ill. 444; Badeau v. U.S., 130 U.S. 439; 30 Cyc. 1315. (10) Under section 2778 a suit on an implied contract, as that alleged here, cannot be maintained against a city. Perkins v. School District, 99 Mo.App. 483; Savage v. City, 83 Mo.App. 323; Schell City v. Mfg. Co., 39 Mo.App. 264; Crutchfield v. Warrensburg, 30 Mo.App. 456; Anderson v. Ripley Co., 181 Mo. 58; Hook v. City, 144 Mo.App. 144.

H. W. Timmonds for respondent.

(1) All moneys arising from the special road and bridge tax shall be appropriated by the township board of directors and there can be no division of it between the city and the township. Green City v. Martin, 237 Mo. 474; State ex rel. v. Everett, 245 Mo. 714; Sec. 22, art. 10, Constitution. Sec. 11767, R. S. 1909, is the only authority for a division of taxes between the city and the township and the Supreme Court has held in Green City v. Martin and State ex rel. v. Everett, supra, that this section does not apply to the taxes involved in the case at bar. Cities of the fourth class "have and exercise exclusive control over all streets, alleys, avenues and public highways within the limits of such city." Sec. 9400, R. S. 1909. And are empowered to levy and collect taxes on all property within the city limits. Sec. 9400, R. S. 1909. A township is a political subdivision of a county for local governmental purposes and is in a sense a quasi corporation. County roads and bridges are matters of general or public concern, while city streets, sidewalks and alleys have a local and peculiar or corporate character. 1 Dillon on Mun. Corp. (3 Ed.), secs 66 and 74; Jefferson Co. v. St. Louis Co., 113 Mo. 625. The funds in question can only be applied to the roads and bridges in th township outside of the incorporated city of Lamar because the city is required by law to maintain their streets and the township has no control over them; the city has power to levy and collect taxes and to appropriate money for maintaining their streets; they act independently of the township; an appropriation of any part of these road and bridge taxes to be used upon the streets of the city of Lamar is a gift or grant within the meaning of the Constitution and any act of the Legislature authorizing any such gift or grant is unconstitutional and void. Sec. 46, art. 4, Constitution; State ex rel. v. County Court, 142 Mo. 575. (2) Where money has been received by a collector for taxes, the money after its reception by the collector, is public money and belongs to the State, county or township for whose use it was collected. Davis v. Bader, 54 Mo. 168; State ex rel. v. County Court, 142 Mo. 584. And public moneys can only be paid out for the purposes and in the manner prescribed by law. (3) The general rule of the common law is that a mistake of law is no ground for relief because "ignorance of the law excuses no one;" as a general proposition, this rule exists in equity, but like many other general rules, it exists with qualifications. Bispham's Equity, sec. 187; Story's Equity (12 Ed.), sec. 111; Nelson v. Betts, 21 Mo.App. 229. Where a party acts upon the misapprehension that he has no title at all in the property, it seems to involve in some measure a mistake of fact; that is, of the fact of ownership, arising from a mistake of law, and courts will grant relief. Story's Equity (12 Ed.), secs. 120, 122, 123, 129, 130, 137, 138c, 138f. Relief is sometimes given also in cases of surprise; that is, where parties have entered into arrangements unadvisedly and improvidently, and without due deliberation; so, also in some cases where the law is confessedly doubtful, and the question is one about which ignorance may well be supposed to exist. Bispham's Equity, sec. 188; Story's Equity (12 Ed.), sec. 134. Where a mistake of law is attended by circumstances that render it inequitable for the other party to take advantage of it, equity will interfere and grant relief. Griswold v. Hazard, 141 U.S. 260; Leach v. Cowan, 140 S.W. 1077. While recognizing the rule that equity will not extend relief against a mistake of law, courts are ready and even astute to seize upon any element of fact as sufficient in connection with the mistake of law to justify granting the relief. 16 Cyc. 74; McNaughten v. Partridge, 38 Am. Dec. (Ohio) 731; 16 Cyc. 74. Money paid by one under mistake of his rights and his duties, which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, may be recovered back in an action for money had and received, whether such mistake be one of fact or of law. Northrop's Executors v. Graves, 50 Am. Dec. (Conn.) 264; Culbreath v. Culbreath, 50 Am. Dec. (Ga.) 375. (4) There is a difference in paying private money and paying public money by mistake; public moneys cannot be disbursed or given away contrary to law and disbursement by a public officer, contrary to law, is invalid. Morrow v. Surber, 97 Mo. 161; Campbell v. Clark, 44 Mo.App. 253. The rule is that the payment of public moneys by a public officer, by mistake of law, especially when made to another officer, may be recovered back. 30 Cyc. 1315; Ada County v. Gess, 43 P. 71 (Idaho) ; Heath v. Albrook, 98 N.W. 619; Allegheny v. Grier, 36 A. 353; Ellis v. State Auditor, 65 N.W. 577. (5) The obligation to do justice rests upon all persons, natural and artificial, and if a municipality obtains the money, or property of others without authority or by mistake, the law, independent of any statute, will compel restitution or compensation. Wood v. Kansas City, 162 Mo. 312; 15 Am. & Eng. Ency. Law (1 Ed.), p. 1083; Marsh v. Fulton Co., 10 Wall. (U.S.) 676; Louisiana v. Wood, 102 U.S. 294; Chapman v. Douglas Co., 107 U.S. 348; Morville v. Track Society, 123 Mass. 129; Hathaway v. Cincinnatus, 62 N.Y. 434; Nelson v. Mayor, 63 N.Y. 544; Dillon on Municipal Corp. (3 Ed.), sec. 460; Armstrong Co. v. Clarion County, 5 Am. Rep. (Pa.) 368. "If a municipal corporation received the money or property of another by mistake or without authority of law, it is its duty to restore such money or property to the true owner, or, if used by it, to render an equivalent therefor, from which obligation the law implies a promise so to do." 20 Am. & Eng. Ency. Law (2 Ed.), 1158; Argenti v. San Francisco, 16 Cal. 256; Galloway v. Milledgeville, 48 Ga. 309; Cary v. East Saginaw, 79 Mich. 73; M. E. Church v. Vicksburg, 50 Miss. 601; Wood v. Kansas City, 162 Mo. 303.

FARIS, J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

This is an appeal from the circuit court of Barton county. We get jurisdiction because the case involves a construction of the revenue laws. [State ex rel. v. Adkins, 221 Mo. 112, 119 S.W. 1091; State ex rel. v. Hawkins, 169 Mo. 615, 70 S.W. 119; St. Louis & San Francisco Ry. Co. v. Gracy, 126 Mo. 472, 29 S.W. 579; Morrow v. Surber, 97 Mo. 155.]

The learned trial judge with commendable zeal prepared a written statement of the facts, as also his opinion of the law. After examining his findings and conclusions with great care, we have reached the opinion that his views are sound. We therefore adopt his statement of the facts and his opinion as to the law as our opinion herein, adding...