Phillips v. Butler County

• Decision Date: 30 March 1905
• Parties: PHILLIPS v. BUTLER COUNTY, Plaintiff in Error
• Court: Missouri Supreme Court

86 S.W. 231

187 Mo. 698

PHILLIPS v. BUTLER COUNTY, Plaintiff in Error

Supreme Court of Missouri, Second Division

March 30, 1905

Error to Wayne Circuit Court. -- Hon. Frank R. Dearing, Judge.

Reversed and remanded.

William N. Barron for plaintiff in error.

(1) Title to and control over swamp land is vested in the several counties. R.S. 1899, sec. 8195; R.S. 1889, sec. 6461; Barton Co. v. Walser, 47 Mo. 197; Pool v Brown, 98 Mo. 678; Simpson v. Stoddard Co., 173 Mo. 421. (2) The powers of the State Board of Education are limited to those granted by statute. It is only in the event of misappropriation of swamp land, or the funds arising therefrom, that the State Board of Education is authorized to move. Direction of plaintiff by the State Board of Education to assist in the defense of an action brought by private parties against Butler county, to set aside a decree previously rendered in favor of the county and to quiet title, was ultra vires the State Board of Education and imposed no obligation upon the county. Constitution, art. 4 sec. 48; Constitution, art 11, sec. 4; R.S. 1899, sec. 9815; Heidelberg v. St. Francois Co., 100 Mo. 72; Butler v. Sullivan Co., 108 Mo. 633; Unionville v. Martin, 95 Mo.App. 36. (3) The State Board of Education having no authority to direct the plaintiff to render the service alleged to have been performed, and no contract that conformed to the provisions of section 6759, Revised Statutes 1899, having in fact been made with plaintiff by the State Board of Education, the payment, by Butler county to plaintiff, on July 1, 1895, of $ 280 on account of expenses or services, imparted no validity to any previous unauthorized employment, either by way of contract ratification or estoppel. Constitution, art. 4, sec. 48; R.S. 1899, sec. 6759; Johnson v. School District, 67 Mo. 320; Heidelberg v. St. Francois Co., 100 Mo. 72; State ex rel. v. Milling Co., 156 Mo. 634; Anderson v. Ripley Co., 80 S.W. 263; McKissick v. Mt. Pleasant Twp., 48 Mo.App. 418; Unionville v. Martin, 95 Mo.App. 36. (4) County courts have no powers except such as are granted, defined and limited by law, and like all other agents they must pursue their authority and act within the scope of their powers. Wolcott v. Lawrence Co., 26 Mo. 272; Book v. Earl, 87 Mo. 256; Sturgeon v. Hampton, 88 Mo. 213; State ex rel. v. Harris, 96 Mo. 37; Anderson v. Ripley Co., 80 S.W. 265. (5) The county court of Butler county had no power to employ counsel to defend nor to assist in the defense of an action in which the county was interested or a party, and the alleged employment of plaintiff, by virtue of the order of the county court of Butler county, made May 7, 1890, was void, and no liability against the county can be predicated thereon. Thrasher v. Greene Co., 87 Mo. 420; Butler v. Sullivan Co., 108 Mo. 633. (6) The order made by the county court of Butler county, on May 7, 1890, reciting that plaintiff, the attorney who had been selected by the State Board of Education, be, and he is hereby employed to assist the prosecuting attorney of Butler county in the prosecution or defense of any and all cases wherein the swamp land interest of Butler county is involved, and especially is he employed to assist said prosecuting attorney in the defense of the interest of Butler county in the case now pending in the circuit court of said Butler county, wherein the F. G. Oxley Stave Company, and F. G. Oxley, trustee, are plaintiffs, was not only ultra vires the county court, because not authorized by law, but void as a contract of employment, because expressly forbidden by mandatory statute. Constitution, art. 4, sec. 48; R.S. 1889, sec. 3157; R.S. 1899, sec. 6759; Maupin v. Franklin Co., 67 Mo. 327; Woolfolk v. Randolph Co., 83 Mo. 503; Anderson v. Ripley Co., 80 S.W. 263; Crutchfield v. Warrensburg, 30 Mo.App. 458; Inhabitants of Schell City v. Rumsey, 39 Mo.App. 267; Furn. Co. v. District, 51 Mo.App. 551; Taylor v. School District, 60 Mo.App. 374. (7) The county being in May, 1890, without power to contract with plaintiff for the performance of services as an attorney, and no contract that conformed to the provisions of section 6759, Revised Statutes 1899, having in fact been made with plaintiff by Butler county, the payment on July 1, 1895, of $ 280 to plaintiff, on account of expenses or services, imparted no validity to the previous void employment, either by way or contract, ratification or estoppel. Constitution, art. 4, sec. 48; R.S. 1899, sec. 6759; Johnson v. School District, 67 Mo. 320; Maupin v. Franklin Co., 67 Mo. 327; Heidelberg v. St. Francois Co., 100 Mo. 72; State ex rel. v. Milling Co., 156 Mo. 634; Anderson v. Ripley Co., 80 S.W. 263; Crutchfield v. Warrensburg, 30 Mo.App. 458; McKissick v. Mt. Pleasant Twp., 48 Mo.App. 418; Furn. Co. v. District, 51 Mo.App. 551; Unionville v. Martin, 95 Mo.App. 36. (8) From a void contract with a county or other municipal corporation, no cause of action can arise, either of quantum meruit or sounding in damages. Constitution, art. 4, sec. 48; Maupin v. Franklin Co., 67 Mo. 330; Keating v. Kansas City, 84 Mo. 419; Verdin v. St. Louis, 131 Mo. 97; Anderson v. Ripley Co., 80 S.W. 265; Taylor v. School District, 60 Mo.App. 375.

Sam M. Phillips and James F. Green for defendant in error.

(1) The State Board of Education, which originally employed plaintiff, is a constitutional body, and was expressly authorized by statute to make such employment. Constitution, art. 11, sec. 4; R.S. 1899, secs. 9814-9817. (2) County courts, in the management of swamp lands, are not the agents of the county, but the agents of the State, and the title to such swamp lands is in the counties for the specific purposes provided by statute. R.S. 1899, sec. 8195; Simpson v. Stoddard Co., 173 Mo. 421; Barton County v. Walser, 47 Mo. 197; Board of Education v. Boyd, 58 Mo. 276; Washington County v. Boyd, 64 Mo. 179. (3) The right to employ the plaintiff by the county is conceded, and, although the attempted employment may not have been in the manner required by statute, yet the county unquestionably ratified it and is liable. Walters v. Lemp, 115 Mo. 524; Walker v. Linn County, 72 Mo. 650; Water Co. v. Aurora, 129 Mo. 540; Thrasher v. Green County, 87 Mo. 419; Thrasher v. Green County, 105 Mo. 244; Reynolds v. Clark County, 162 Mo. 683; Water Co. v. Neosho, 136 Mo. 509; Dunklin County v. Chouteau, 120 Mo. 577. (4) No error was committed in the admission of evidence on part of plaintiff, as all the evidence offered tended to prove the services rendered by plaintiff.

BURGESS, P. J. Gantt, J., concurs; Fox, J., not sitting.

OPINION

BURGESS, P. J.

This is an action by plaintiff for services rendered by him as an attorney-at-law for defendant in and about its swamp and overflowed lands. The suit was begun in the circuit court of Butler county, but the venue was thereafter changed to the circuit court of Wayne county where it was finally tried, resulting in a verdict and judgment in favor of plaintiff for the sum of $ 6,045.

After unavailing motions by defendant for new trial and in arrest, the defendant sued out this writ of error.

The petition alleges that in March, 1869, the circuit court of Butler county rendered a decree, in a suit wherein Butler county was plaintiff and the Cairo & Fulton Railroad Company, John Moore, John Wilson and Albert G. Waterman, were defendants, which cancelled a patent that in 1857 had been issued by the State of Missouri to the Cairo & Fulton Railroad Company, for 100,868 acres of swamp land; that in August, 1889, the F. G. Oxley Stave Company and Frederick G. Oxley, trustee, filed in the Butler County Circuit Court, a bill by which it was sought (1) to set aside the decree, so, in 1869, obtained by the county against the Cairo & Fulton Railroad, (2) to cancel certain conveyances made by Butler county to purchasers of swamp land described in the 1869 decree, and (3) to quiet title in the Oxley Stave Company and F. G. Oxley, trustee.

The petition further alleges that plaintiff on November, 1889, was appointed by the State Board of Education to bring suits to recover, and defend all suits in which swamp or other lands might be brought in question in any way within the Fourteenth Congressional district; that the State Board of Education, upon being duly advised by plaintiff of the institution of the said suit in the circuit court of Butler county, Missouri, wherein the F. G. Oxley Stave Company and Frederick G. Oxley, trustee, were the plaintiffs, and Butler county et al. were the defendants, by its order of record bearing date January 20, 1890, ordered this plaintiff to interpose a defense and assist in the defense of the said suit brought by the said F. G. Oxley Stave Company and Frederick G. Oxley, trustee, against Butler county et al., then pending in the circuit court of Butler county, Missouri. That on the 7th day of May, 1890, the plaintiff presented a certified copy of said order, so made by the said board of education, to the county court of Butler county and the said order was by the said court, while in session, ratified and approved, and the said county court thereupon, by its order of record empowered, employed and contracted with this plaintiff to defend the county of Butler and its interests involved in said suit.

The petition further avers that immediately after the employment and contract above referred to, plaintiff, in said Oxley Stave Company case, rendered services as counsel of the reasonable value of $ 12,600; that he had been paid $ 955 on account of services and necessary expenses; and that he "has appeared time and again before the county court of Butler county, Missouri, since the final determination of said suit, and has sought and endeavored to have a settlement with the...