Mountain Grove Bank v. Douglas County

• Decision Date: 15 November 1898
• Citation: 47 S.W. 944,146 Mo. 42
• Parties: MOUNTAIN GROVE BANK v. DOUGLAS COUNTY.
• Court: Missouri Supreme Court

47 S.W. 944

146 Mo. 42

MOUNTAIN GROVE BANK v. DOUGLAS COUNTY.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

COUNTIES — LIMIT OF INDEBTEDNESS — ACCRUAL OF DEBT — BURDEN OF PROOF — STARE DECISIS — OBLIGATION OF CONTRACTS.

1. Services and supplies for paupers and insane, salaries and fees of county officers, of jurors and witnesses, repairs on roads, printing books and blanks, insurance and repairs on court house and rent of a jail, and fuel, cannot be presumed to have been furnished or rendered on the faith of a decision that Const. art. 10, § 12, inhibiting counties from exceeding a fixed limit of indebtedness, did not extend to contingent and unascertained liabilities or those imposed by statute, and hence the overruling of that decision was not an impairment of contract as to warrants issued for such services in excess of the limit.

2. A county which issued warrants exceeding the constitutional limit of indebtedness is liable for the items thereof that were furnished before the funds were exhausted, notwithstanding all the funds have been paid out on subsequently issued warrants, since the debt was created when the services or goods were furnished.

3. In an action on county warrants, where a referee reported a sum as being due if the rendering of the services which the warrants represented created the debt, but, in case the debt was not created until the warrants were issued, then that only a certain smaller sum was due, the former sum included the latter.

4. A general denial, with a special defense to an action on county warrants that the constitutional limit of indebtedness had been exceeded, imposes the burden on plaintiff to prove that the warrants were for debts created before the funds were exhausted, in order to make his prima facie case, and then the burden shifts to defendant to prove its affirmative defense.

Appeal from circuit court, Douglas county; W. N. Evans, Judge.

Action by the Mountain Grove Bank against Douglas county. There was a judgment for defendant, from which plaintiff appealed. Reversed.

Thos. H. Musick, A. H. Livingston, and James R. Vaughan, for appellant. E. H. Farnsworth, for respondent.

MARSHALL, J.

This is an action against the defendant, a political subdivision of this state, to recover upon several hundred warrants and jury scrips. Each warrant is made the basis of a separate count. The counts allege that on a specified date the defendant was indebted to a person named (for what is not stated) in a specified sum, and that on the date named, after the county court ascertained the fact, it ordered its clerk to draw a warrant therefor on the county treasurer, which the clerk did, commanding the treasurer to pay it out of the contingent fund; that by divers assignments plaintiff became the owner of the warrant; that the warrant was presented to the treasurer, who refused to pay it, indorsing on it the fact of presentation, and that there was no money in the treasury appropriated for that purpose. The answer denied the indebtedness, and set up seven defenses, as follows: (1) That the warrant is void because it was issued after the county court had issued warrants in excess of the county's revenue for the current year, and in excess of the appropriation for contingent purposes for that year. (2) That it is void because at the time it was issued the county court had issued warrants in excess of the total revenue for the year raised by a levy of 50 cents on the $100 valuation, the sum limited by law, exclusive of warrants issued during the year for the support of paupers, roads, and bridges. (3) Because, at the commencement of this action, the authorized revenues of the county for the year had been entirely consumed by the legitimate annual expenses of the county government. (4) Because neither the payment of the warrant nor the creation of the debt had ever been authorized by a vote of the people of the county. (5) Because at the time the warrant was issued there was not, and is not now, any money in defendant's treasury for its payment. (6) Because the total assessment of taxable property of the county for the year 1890 (the warrant was issued in February, 1890) was $1,191,349, and the amount of revenue derived therefrom was $6,369.24, appropriated and set apart as follows: For paupers, $550; for road fund, $950; for county officers, $3,250; for contingent fund, $300; for jury fund, $1,000; and that the debt was contracted, and the warrant issued, after the contingent fund was exhausted. (7) Because the assessed value of the taxable property in the county for the year 1889 was $1,155,553, and the total revenue derived therefrom was $5,777.50, appropriated as follows: Pauper fund, $500; road fund, $950; county officers' fund, $3,250; jury fund, $1,000; contingent fund, $300; and that the debt was contracted, and the warrant issued, after the contingent fund was exhausted; and that the assessed value of the taxable property of the county for the year 1888 was $963,974, and the total revenue derived therefrom was $4,819.87, and the same was not appropriated or set apart, but was exhausted May 12, 1888, and that the debt was contracted and the warrant issued after the internal revenue was exhausted.

The case was sent to a referee, who reported upon two different theories: (1) Upon the theory that the fiscal year begins on the 1st of January, and that the auditing and allowing of a claim, and ordering a warrant to issue, constitute the creation of the debt; and (2) upon the theory that the fiscal year begins on January 1st, and that the debt is created at the time the services are performed or the goods sold and delivered, and that the fund for one year is not exhausted until warrants are issued for services rendered or goods sold and delivered during such fiscal year to the full amount of the whole revenue for such fiscal year. Upon the first theory, he reports that two warrants in suit, amounting to $3.50, were issued prior to the time the revenue for 1888 was exhausted; that three warrants in suit, amounting to $22.30, were issued before the revenue for 1889 was exhausted; and that two warrants in suit, amounting to $23.05, were issued before the revenue for 1890 was exhausted. These amounts aggregate $48.85. Upon the second theory the referee found: "The total amount of warrants issued during the years 1888, 1889, and 1890, issued for services performed and goods sold and delivered between January 1st of each year and the date and warrant when fund for each respective year was exhausted, where dates have been found, $808.77." The referee also reports that, as to $493.88, he is unable to discover the dates when the services were rendered or the goods were sold and delivered.

The plaintiff filed exceptions to the referee's report, which the court overruled, and thereupon the cause was submitted to the court upon the following agreed statement of facts: "It is agreed by the parties, plaintiff and defendant in the cause above entitled, as follows: That the warrants mentioned in the different counts of plaintiff's petition were ordered drawn by the county court of Douglas county on the county treasurer of said county at the respective dates mentioned in the different counts, and that the county clerk of the county court drew said warrants pursuant to said orders, and for the sums named in them, directing and commanding said treasurer to pay the sums of money named in the different warrants to the payees therein for the purposes recited by the warrants. That the said jurors and witnesses referred to in the different counts of said petition were chosen, selected, summoned, and qualified, and recognized to attend said circuit court, as in said counts set forth, and that they traveled the number of miles and attended the number of days as stated, and that the same were entered in a book kept for that purpose, as in manner and by law required, on said jurors' and witnesses' application, as in said scrip stated, the same was duly verified by said jurors' and witnesses' oaths, and that said scrip and warrants were signed and given by the said circuit clerk as in the said counts stated, and verified by said circuit clerk's official signature. That said scrip and warrants issued to said witnesses before said grand jury were duly countersigned by the foremen of the respective grand juries before which they attended, as in said counts stated. That said warrants and scrip were assigned, in the manner required by law, to the assignees named in the several counts, and finally to the present plaintiff, which is now the legal holder and owner of said warrants and scrip. That the said warrants and scrip were presented to the county treasurer of said county for payment, and payment demanded, at the time mentioned in the several counts, but the treasurer refused to pay the said warrants and scrip, because there was no money in the treasury for that purpose, and indorsed them in these words: `The within warrant presented for payment, and no money in the treasury for that purpose, this ____ day of ____, 18 —. _____, County Treasurer,' — the blank spaces in said indorsements being filled with the date of presentment, and signed by the county treasurer on whom demand was made, as on the backs of said scrip and warrants stated. That plaintiff is a corporation duly organized. That all said warrants remain due and unpaid. That this suit involves the legality and payment of 286 warrants and jury and witness scrip issued in the years 1888, 1889, and 1890, in the aggregate amount of $3,570, exclusive of interest, of which amount there are on account of:

                Criminal costs ......................  $1,271 02
                Stationery books and blanks..........     785 47
                Roads ...............................      53 60
                Paupers and insane...................     255 10
                Insurance on court house.............      51 00
                Salary of judges of county court.....     133 58
                Salary of sheriff and jailer.........

...