Lancaster v. Atchison County

• Decision Date: 05 June 1944
• Docket Number: 38556
• Parties: John M. Lancaster v. County of Atchison a Political Subdivision of the State of Missouri, and Carl M. Hunter, D. J. Currie and Sam Graves, as and Constituting the County Court of the County of Atchison, and Rolla Cook, Successor to R. O. Bartholomew, as County Treasurer of the County of Atchison, Appellants
• Court: Missouri Supreme Court

180 S.W.2d 706

352 Mo. 1039

John M. Lancaster v. County of Atchison a Political Subdivision of the State of Missouri, and Carl M. Hunter, D. J. Currie and Sam Graves, as and Constituting the County Court of the County of Atchison, and Rolla Cook, Successor to R. O. Bartholomew, as County Treasurer of the County of Atchison, Appellants

No. 38556

Supreme Court of Missouri

June 5, 1944

Appeal from Atchison Circuit Court; Hon. M. E. Ford, Judge.

Reversed and remanded (with directions).

H. B Hunt and Culver, Phillip, Kaufmann & Smith for appellants.

(1) The Atchison County Court is a court of limited and inferior jurisdiction and its order can bind the county only when the county has authority to bind itself. St. Louis County v Menke, 92 S.W.2d 818; Ex parte McLaughlin, 105 S.W.2d 1020; Morris v. Karr, 114 S.W.2d l.c. 964; Sturgeon v. Hampton, 88 Mo. 203. (2) The only power conferred upon the county to construct or operate a toll bridge extending into another state across a river forming a boundary of this State is that conferred by statute, and the only statutes are: Secs. 8547, 8548, 8541, R.S. 1939. (3) The bridge was constructed and the bonds issued pursuant to the power conferred by Section 8548. This section does not authorize the county to divide the tolls into two funds and agree that $ 30,000 of those tolls shall be placed annually in a fund to be used exclusively for the payment of principal and interest on the bonds and only such tolls as remain shall be used to pay costs of operating the bridge. As this section confers no such authority, no such authority exists. The section expressly provides that all of the tolls shall be used both for the purpose of paying costs of operation and principal and interest on the bonds and the court erred in ruling that the county court had authority to agree to use all of the tolls to pay principal and interest alone. The court erred in ruling to the contrary. Sec. 8548, R.S. 1939. (4) The statute does not and the court erred in holding it does authorize the county to create a lien on all of the tolls to secure the payment of principal and interest on the bonds. It authorizes a lien on "the revenue derived from the tolls" which means the revenue that remains after the expense of operation is paid. Public Service Comm. v City of Helena, 150 P. 24; In re Redding, 1 Ch. 876; Poland v. Lamoille Valley R. Co., 52 Vt. 144. (5) The trial court erred in holding that the statute authorized the county court to make an order and agree that if the tolls received from the operation of the bridge were less than $ 30,000 annually or if the tolls were less than the amount necessary to pay principal and interest on the bonds and costs of operation, the county would pay costs of operation. No such authority is conferred by the statute. Sec. 8548, R.S. 1939. (6) The court erred in holding that such power was impliedly conferred because it authorized the county court to pledge all of the tolls to pay principal and interest on the bonds and as the duty rested on the county to operate the bridge, the statute impliedly obligated it to pay the costs of operation. No such power may be implied. State ex rel. v. Smith, 74 S.W.2d 367. (7) The court erred in holding that the Legislature intended that the county should have authority to pay the expense of operation because the operation of the bridge must continue after the bonds are paid in full and thereafter the bridge must be operated as a free bridge. The court overlooked the fact that the enabling Act of Congress authorizing the construction of the bridge requires that after the bonds are paid, tolls shall be provided to pay costs of operation. Act of Congress (Public No. 411-74 Cong. St. B. 9070) Approved August 30, 1935. And the court overlooked the fact that the State Highway Commission having contributed to the cost of constructing the bridge, has made the bridge a part of the State Highway System of Missouri. State ex rel. v. Smith, 74 S.W.2d 367; Sec. 8544, R.S. 1939. The cost of operating the state highways must be paid by the state if it is to be paid from sources other than tolls and the county has no right to use its revenues to pay a state obligation. (8) The county has no right to use any part of its revenue to pay for maintenance or repair of a bridge located on a state highway. Secs. 10910-14, R.S. 1939. (9) If the county is not obligated to pay costs of operating the bridge, it may not voluntarily use any of its moneys for that purpose.

Gerlash & Gerlash, Charles & Trauernicht and Seward McKittrick for respondent.

(1) Sections 8547 to 8551 (the Toll Bridge Act) authorize the public agencies affected by the act to make such allocation of the tolls received from toll bridges which may be necessary for the payment of principal and interest on any bonds issued under the act and may allocate a fixed annual sum to such purpose and provide that such annual sum shall be a first charge on the tolls. Sec. 8548, R.S. 1939. (2) The Toll Bridge Act does not itself establish any priority between costs of operation, maintenance and repair and bond payments, but authorizes public agencies to establish such priority through the allocation of toll revenues. State ex rel. City of Hannibal v. Smith, 335 Mo. 825, 74 S.W.2d 367. (3) Counties which have issued and sold toll bridge revenue bonds are authorized to pay the costs of operating, maintaining and repairing the bridge from any available funds, including the proceeds of taxes levied and collected by the county, if the revenues from the bridge are insufficient to pay the bonds and in addition to pay such costs. Secs. 8534, 8547, R.S. 1939; Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289; California Toll Bridge Authority v. Kelly, 21 P.2d 425, 218 Cal. 7. (4) The acquisition of an interstate bridge is a proper county purpose. Secs. 8541, 8547, R.S. 1939; Haeussler v. St. Louis, 205 Mo. 656, 103 S.W. 1034. (5) Public agencies acquiring a toll and issuing toll bridge revenue bonds are authorized to contract to pay the costs of operating, maintaining and repairing such bridge from county funds, if the tolls are insufficient to pay the bonds and, in addition, to pay such costs. State ex rel. City of Hannibal v. Smith, 335 Mo. 825, 74 S.W.2d 367. (6) Sections 14 and 22 of the order entered by the County Court of Atchison County authorizing the issuance of the bonds in this case require the county to pay the cost of operating, maintaining and repairing the bridge, if the revenue thereof should at any time prove insufficient for that purpose, in addition to maintaining the sinking fund required by Section 7 of the order; such payments to be made from funds other than funds arising from taxes levied and collected by the county. Included among the funds available for this purpose are: (a) Liquor and beer licenses. Secs. 4900, 4904, R.S. 1939; State ex rel. Troll v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo. 1, 62 S.W. 828; State ex inf. Harvey v. Mo. Athletic Club, 261 Mo. 576, 170 S.W. 904; State ex inf. Bloebaum v. Broeker, 11 S.W.2d 81. (b) Pool and billiard licenses. Sec. 15398, R.S. 1939; State ex rel. McClanahan v. DeWitt, 160 Mo.App. 304, 142 S.W. 366. (c) Fees from county officers. Circuit clerk and recorder, Sec. 13408, R.S. 1939; County clerk, Sec. 13436, R.S. 1939; Prosecuting attorney, Sec. 12941, R.S. 1939.

Howell, Jacobs & Howell, Katherine Halterman and Scott R. Timmons for Pyramid Life Insurance Company.

The judgment herein appealed from should be affirmed, because the court below correctly construed the act of the Missouri Legislature, Extra Session, 1933-34, found on pages 115-117 in said Extra Session Laws, and also in Revised Statutes of Missouri for the year 1939, Sections 8547 to 8551, inclusive, and also correctly held that the order of the County Court of Atchison County, Missouri, issued in pursuance of said Act, was valid. R.S. 1939, secs. 8547-8551; State ex rel. City of Hannibal v. Smith, 335 Mo. 825, 74 S.W.2d 367.

OPINION

Tipton, J.

This suit seeks a declaratory judgment upon certain questions of law arising from the following facts: The County Court of Atchison County, Missouri, by an order entered November 15, 1938, authorized the issuance of $ 350,000 Toll Bridge Revenue Bonds dated November 1, 1938, maturing absolutely on November 1, 1958, but callable and payable prior to maturity on any interest payment date. The bonds were issued under the authority of Laws of Missouri, 1933-34, Extra Session, pages 115 to 117, now found as Section 8547, Revised Statutes of Missouri, 1939.

Among other things, this order provided that the court found and determined a bridge across the Missouri River connecting the highways of the State of Nebraska with the highways of this State "to be of peculiar benefit to the said County and the inhabitants thereof," and the court further found, "that it would be desirable and in the best interest of said County, to provide for the financing of the construction of the said bridge as a toll bridge."

Section 7 of the order directed that all the revenues of the bridge should be deposited in the "Toll Bridge Revenue Fund." It then directed that the annual sum of $ 30,000 be transferred from the above fund to the "Toll Bridge Revenue Bond Interest and Sinking Fund," to be used only for the payment of the bonds and the interest thereon, and that the balance of the revenues be deposited in the "Toll Bridge Operation and Maintenance Fund," to be used only for the payment of the costs of maintaining, repairing and operating the bridge. In other words, this Section provided that if the revenues of the bridge do not amount to $ 30,000 per year, all revenues must be used to pay the debt.

Section 14 of the order provided that if the revenues were...