Little Prairie Special Road District v. Pemiscott County
| Decision Date | 05 March 1923 |
| Citation | 249 S.W. 599,297 Mo. 568 |
| Parties | LITTLE PRAIRIE SPECIAL ROAD DISTRICT, Appellant, v. PEMISCOTT COUNTY et al |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Affirmed.
Shepard & Hawkins for appellant.
(1) The county court having made a levy of fifty cents on the one hundred dollars valuation for county purposes, must, under the law, set aside as the road and bridge fund at least ten cents on the one hundred dollars and cannot divert the ten cents on the one hundred dollars set aside for road and bridge purposes for other county purposes, and so much of the fifty cents as is collected from property within a special road district as is levied for road and bridge purposes must be credited to the treasurer or commissioners of such district, and where the county court is diverting the road fund belonging to a special road district, the road district has the right to enjoin the county court from so diverting its funds and to require the funds to be paid to its treasurer or commissioners. Carthage Special Road Dist v. Ross, 270 Mo. 76. (2) Under the provisions of Sec 10481, R.S. 1909, Laws 1913, p. 667, it is provided "That in counties wherein a special road district has been organized, the road tax above provided shall be levied upon all property within special road district, which levy shall be collected and paid by the collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the special road district from which said tax was collected, and shall pay the same to the commissioners or treasurer of such special road district on warrants of the county court." It is clear the statute intends to make the road taxes collected within the borders of the special road district, a fund belonging to that district, which cannot be diverted by the county court to any other district or territory or for any other purposes. Carthage Road Dist. v. Ross, 270 Mo. 76. (3) The county court is not the owner of the fund collected within a special road district for road purposes but is only a trustee for convenience to carry out the policy devised by the law-making power for the proper distribution of the funds, and has not the right to dissipate the fund or divert it from the purposes for which it was raised. Ray Co. to use of School Fund v. Bentley, 49 Mo. 236; State ex rel. Bradshaw v. Hackmann, 276 Mo. 600; State ex rel. Barker v. Scott, 270 Mo. 146; Mullins v. Kansas City, 268 Mo. 444; Township Board of Education v. Boyd, 58 Mo. 276. (4) The road commissioners have a right to maintain a suit against the county to recover funds belonging to the district that have been wrongfully diverted by the county court. Campbell Co. v. Commissioners of Court House Dist., 41 S.W. (Ky.), 111; Lamar Twp. v. City of Lamar, 261 Mo. 171; State ex rel. Moberly Special Road Dist. v. Burton, 266 Mo. 711. (5) Under the peculiar facts in this case as shown by the petition, to which demurrer was sustained, a court of equity clearly has jurisdiction to enjoin the county court from further diverting the funds of the road district, and to require the defendant to repay to the road district the funds belonging to said district, which have been diverted by the county court and used for other purposes. Cleveland Cliffs Iron Co. v. Village of Kinney, 262 F. 980; San Diego Co. v. Cal. National Bank, 52 F. 59; Thompson v. Emmett Irr. Dist., 227 F. 560; Stephens v. Ohio State Tel. Co., 240 F. 579; Aetna Life Ins. Co. v. Lyon Co., 95 Ed. 235; Everett v. Independent School Dist., 102 F. 529. (6) It is not necessary to exercise equitable relief that plaintiff should not have any remedy at law, but only that such remedy be inadequate and incomplete. McCallister v. Graham, 206 S.W. 393. (7) The road and bridge fund of ten cents on the one hundred dollars valuation assessed against all property lying within the borders of Little Prairie Special Road District created a fund belonging to the district and the county court had no right to use the fund created in other road districts in the county, and the fact that the funds had been so used is no answer of defendants to the claim of the district for the funds that rightfully belonged to it. Dade Co. v. City of Miami, 82 So. 350; State v. Ritchie County Court, 99 S.E. 439. (8) The county court should repay the funds dissipated to the district, out of the funds receiving the benefits by its use, and in order to make a proper adjustment it is necessary that all of the parts and different divisions of the county that will be affected thereby should be made parties to this suit. State ex rel. v. Adams, 161 Mo. 369. (9) The doctrine of laches cannot be successfully invoked to the aid of the defense under the peculiar facts in this case. Marion Co. v. Moffett, 15 Mo. 405; Hunter v. Moore, 202 S.W. 544; Wendall v. Ozark Orchard Co., 200 S.W. 747; Foster v. Callaghan & Co., 248 F. 944; Ky. Block Cannel Coal Co. v. Sewell, 249 F. 848.
J. R. Hutchison, Mayes & Gossom for respondent.
(1) If the year has been permitted to go by without the district making application for the money due it under the provisions of Sec. 10818, R.S. 1919 (Sec. 10594, R.S. 1909), the district cannot in a subsequent year recover the amount of taxes it might then have had. Holloway to use v. Howell County, 240 Mo. 601; Road District v. Ross, 270 Mo. 84. (2) Sec. 10594, R.S. 1909, was amended in 1913, by which it required the application to be written and the money collected set aside to the credit of the district. Laws 1913, p. 667.
-- Appellant is a special road district and instituted this suit to recover funds arising from road taxes upon property within its limits and which, it is alleged, have been expended on roads now in other districts. Respondents are Pemiscot County and the county judges thereof and certain other special road districts and their respective commissioners. To the petition respondents filed separate demurrers, which were sustained. Upon appellant's refusal to plead further, judgment was entered and this appeal taken.
The petition alleges that appellant was organized under Article 6 of Chapter 102, Revised Statutes 1909, in November, 1916, and alleges the organization and corporate character of the county and the several respondent road districts, and the official character of the several individual respondents. It is then alleged that the County Court of Pemiscot County levied taxes for county purposes, and out of the taxes so levied set aside and made twenty per cent thereof a "road and bridge fund; that there was collected by the collector of Pemiscot County, and paid to the treasurer of said county, on the property embraced within" appellant district, "as road and bridge funds for the year 1916 after the 16th day of November, 1916, including receipts from certain licenses, the sum of $ 1151.63; "that all of said sum belonged to said special road district and should have been by the court apportioned and set aside for said district." Like allegations, specifying gradually increasing sums were made as to the years 1917 to 1921 inclusive. The total of these amounts is alleged to be $ 9685.67, of which, it is alleged, only $ 2142.61 has been paid to appellant district, which leaves a balance of $ 7543.06 unpaid; that in July, 1921, appellant district filed a "written application with the county court for warrant to be issued in said sum of $ 7543.06, the amount due, but the court refused to issue plaintiff or its commissioners a warrant for said amount, or any part thereof." It is then alleged that the county court had paid out the money due appellant to other road districts, under a mistake as to the governing law and under the belief that the money so collected constituted a county road and bridge fund and might lawfully be used anywhere in the county that the county court thought advisable; that the territory of the respondent road districts, prior to their organization as special road districts received a portion of the funds belonging to appellant district and they are joined for that reason; that appellant's commissioners were endeavoring to accumulate funds for extensive and permanent improvements on its roads, and for that reason did not make demand on the county court for warrants until the district was ready to use "the funds collected as aforementioned and...
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