Sheridan v. Fleming

• Decision Date: 28 November 1887
• Citation: 93 Mo. 321,5 S.W. 813
• Parties: SHERIDAN v. FLEMING and others.
• Court: Missouri Supreme Court

5 S.W. 813

93 Mo. 321

SHERIDAN v. FLEMING and others.

Supreme Court of Missouri.

November 28, 1887.

MANDAMUS — TO COMPEL THE LEVY OF A TAX — RECLAMATION OF SWAMP LANDS.

Laws Mo. March 3, 1869, provide for the reclamation of swamp lands, and that commissioners should let the contract and return estimate of the cost to the county court, which, when approved, should constitute the basis for taxation. Petitioner reclaimed lands under a contract, and the cost was approved by the county court. Including the expenses allowed to others than the contractor, it exceeded the estimate, and petitioner held a warrant for which there was no money in the treasury. The county court refused to levy a tax to pay the warrant. Held, that as nothing in the law limited the amount of the taxes to be levied to the first estimate of the commissioners, nor contemplated that the contractor should go unpaid through their mistake, and that, as there was no appeal provided for from the refusal of the county court to levy the tax, a writ of mandamus to compel it was improperly refused.

Appeal from circuit court, Holt county; H. S. KELLEY, Judge.

J. Limbird, for appellant. S. O'Fallon, for respondents.

BLACK, J.

Sheridan applied to the circuit court of Holt county for a writ of mandamus, requiring the judges of the county court to levy taxes for the payment of a warrant by him held on the county treasurer. The peremptory writ being denied he appealed to this court. The facts disclosed are these: In 1874 Sheridan made a contract by which he became bound to dig what is called "Tarkio Ditch." The contract was made with commissioners, appointed by the county court under the act of third March, 1869, which provides for the reclamation and improvement of swamp lands. After the contract had been made, the commissioners reported to the county court the estimated cost of the work, which they fixed at $6,267; and they estimated the benefits which would accrue to the county at large at $4,666; and they reported that the property specially benefited, a list of which was given, should pay the difference between these two amounts. The work was completed and accepted by the commissioners, and their report to the county court of the entire cost was approved. The cost, including expenses allowed by the commissioners to persons other than the contractor, exceeded the estimated cost made by the commissioners. The result is that Sheridan holds a warrant for some $1,700, and interest, for the payment of which there is no fund in the county treasury, and the county court on his request declined to levy taxes to provide the requisite fund, and hence this proceeding.

In the absence of any brief on the part of the respondents, we are at a loss to know on what ground the circuit court...