Lamar Tp. v. City of Lamar

• Decision Date: 14 July 1914
• Docket Number: No. 18020.,18020.
• Citation: 261 Mo. 171,169 S.W. 12
• Parties: LAMAR TP. v. CITY OF LAMAR.
• Court: Missouri Supreme Court

169 S.W. 12

261 Mo. 171

LAMAR TP. v. CITY OF LAMAR.

No. 18020.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. COURTS (§ 231)—JURISDICTION—SUPREME COURT—CONSTRUCTION OF REVENUE LAWS.

Since an action by a township against a city for road and bridge funds levied and collected in the township and wrongfully paid over by the township officers to the city treasurer was an action involving a construction of the revenue laws, the Supreme Court had jurisdiction thereof on appeal.

2. HIGHWAYS (§ 130)—ROAD AND BRIDGE TAX—WRONGFUL DISTRIBUTION—ACTION TO RECOVER FUND—DEFENSE—ILLEGALITY OF TAX.

In a township's action against a city within its boundaries to recover road and bridge funds wrongfully paid over to the city by the township officers under a mistake of law, it was no defense that the funds were derived from a void tax levy.

3. HIGHWAYS (§ 130)—ROAD AND BRIDGE TAX—DISPOSITION OF FUND.

Under Const. art. 10, § 22, authorizing a township special levy of road and bridge taxes, and forbidding diversion to any other purpose, the road and bridge taxes levied and collected by a township from citizens living within the corporate limits of a city comprised within the township belong to the township, and not to the city.

4. HIGHWAYS (§ 122)—ROAD AND BRIDGE TAX—DISPOSITION OF FUND.

To construe Rev. St. 1909, § 11767, to authorize a township to pay over to a city road and bridge taxes collected from citizens living within the corporate limits of the city would render it violative of Const. art. 4, § 46, prohibiting the General Assembly from making a grant of public money to a municipal corporation.

5. HIGHWAYS (§ 130)—ROAD AND BRIDGE TAX—WRONGFUL DISTRIBUTION—RIGHT TO RECOVER.

Where the officers of a township, under a mistake of law, wrongfully pay over road and bridge funds to the treasurer of a city whose corporate limits are within the township, the township may recover the amount of such funds from the city.

6. OFFICERS (§ 1)—DEFINITION—AGENCY— TRUSTEES.

"Officers" are creatures of the law, whose duties are usually provided for by statute. In a way they are agents; but they are never general agents in the sense that they are neither hampered by custom nor law, and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so with full knowledge of the limitations of their agency and of the laws prescribing their duties. They are trustees as to public money which comes to their hands.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Lamar Township against the City of Lamar. From a judgment for plaintiff, defendant appeals. Affirmed.

J. B. McGilvray, of Kansas City, and Edwin L. Moore, of Lamar, for appellant. H. W. Timmonds, of Lamar, for respondent.

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 Railroad Co. v. Gracy, 126 Mo. 472, 29 S. W. 579; Morrow v. Surber, 97 Mo. 155, 11 S. W. 48.

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 thereto some supplemental views of our own upon a question of first impression in our courts. This opinion of the trial judge is as follows:

"This is an action by Lamar township, one of the municipal townships of Barton county, against the city of Lamar, a city of the fourth class; the corporate limits thereof being wholly within Lamar township. The petition contains three counts, and seeks to recover certain road and bridge funds levied and collected in Lamar township for the years 1909, 1910, and 1911, and, by the township collector and the county, treasurer as ex officio collector, paid to the treasurer of the city of Lamar. The answer admits the corporate existence of plaintiff and defendant, contains a general denial as to other allegations, and specifically denies that any such taxes were ever legally levied, and alleges that the pretended levies are void, and the further defense that, if any such taxes were collected and paid to defendant, the same were paid under a mistake of law, and for that reason, plaintiff is not entitled to recover. There is not much controversy about the facts.

"The plaintiff, Lamar township, undertook to levy a road and bridge tax of 10 cents on the $100 for the year 1909, 20 cents on the $100 for each of the other years, 1910 and 1911. The record of the township board with reference to these levies is brief, and it appeared in evidence that the amounts of the levies for some of the years were not written in until long after the proceedings of the board were had, and some amendments or corrections in the record were made after this suit was brought. It was shown that the clerk of the board sent to the county clerk a certificate of each levy, and the taxes were extended on the tax books and collected by the township collector and ex officio collector; that all of such taxes collected within the corporate limits of the city of Lamar were paid to the treasurer of the city of Lamar, and used by the city. At that time the city did not keep a separate street fund, or at least for the first two years, but sums equal to, and in excess of, the amounts so paid in to the city treasurer were expended on the streets of the city of Lamar. Settlements were made with the township board by the collector and ex officio collector, and the township board knew, or should have known of the payments of the city of the portion of the road and bridge tax collected within the corporate limits of the city. The fact is that all thought, under the law, it was the duty of the collector to pay all road and bridge taxes levied by Lamar township and collected from citizens living within the corporate limits of the city of Lamar to the city treasurer, until after the decision of the Supreme Court in the case of Green City v. Martin, 237 Mo. 474, 141 S. W. 879. The taxes so collected and paid to the city treasurer for the use of the city are as follows: 1909, $714.30; 1910, $1,455.30; 1911, $1,389.81. So if the plaintiff is entitled to recover in this action the judgment should be for these sums and interest from date of demand, August 5, 1912.

"There was a motion filed by the plaintiff's counsel to strike out the defense of void levy, etc., but, not having been taken up before the case was called for trial, it was agreed by counsel that the trial might proceed and the questions involved in the motion determined in passing on the case, as the testimony was short, and it was more convenient to argue the motion with the case on its merits.

"I. The first question presented by the record is raised by the motion of the plaintiff to strike out the defense of `void levy.' Can the defendant city hold money collected from the taxpayers by Lamar township because the levy upon which the collection was made is void? The court is of the opinion that the defendant city cannot avail itself of this defense. The taxes were actually extended on the tax books and regularly collected by the collector of the township, and thereby becomes public funds for the purpose for which collected, and it does not lie in the mouth of any one but a taxpayer to dispute the validity of the levy. If the defendant city can defend the suit on that ground, the collector could have pocketed all the taxes so collected and defeated a suit for the same or a prosecution for embezzling the funds. The contention carried to its legitimate results would enable the custodians of the funds of these municipalities to embezzle them with impunity; for the records, made by persons not learned in the law and with little idea of forms by these municipalities, rarely measure up to the full requirements of the law. This defense should have been stricken out on plaintiff's motion.

"II. Do these taxes levied and collected by Lamar township from the citizens living within the corporate limits of the city belong to the plaintiff township or defendant city? That it would seem fair for the city of Lamar to have them all must admit. It is so recognized by our Legislature, as shown by their repeated efforts to pass and passing such law. To whom public funds belong and the disposition that can lawfully be made of them depends upon the law, and not upon sentiment or any one's idea of fairness. So it becomes the court's duty to be governed by the law, and not by personal preference of the individual who discharges the judicial function.

"In the year 1908 the people adopted an amendment to the Constitution designated as section 22, art. 10. Under section 11 of article 10, the limit of the county tax is 50 cents on the $100, and this includes road tax and township tax; the total limit being 50 cents on the $100. The county levies are generally as much as 40 cents on the $100. The record does not disclose the levies in 1909, 1910, and 1911, but the constitutional amendment became necessary in order to have a sufficient road and bridge fund to keep up the work on the public roads. This section gives the right to the township board to levy a tax of 25 cents on the $100 for `road and bridge purposes' and it provides that such tax, when levied and collected, `shall not be used for any other purpose whatever.' The only authority the township board had for levying the 20 cents on the $100 was this section 22 adopted as an amendment to the Constitution. Before the adoption of this section Lamar township could not have levied more than 15 cents on the $100. Green City v. Martin, 237 Mo. 474, 141 S. W. 879.

"It is clear, under this section of...