State ex rel. Fort Zumwalt School Dist. v. Dickherber, 60648

• Citation: 576 S.W.2d 532
• Decision Date: 13 February 1979
• Docket Number: No. 60648,60648
• Parties: STATE of Missouri ex rel. FORT ZUMWALT SCHOOL DISTRICT et al., Relators- Respondents, v. Francis DICKHERBER, Auditor of St. Charles County, St. Charles, Missouri, Respondent-Appellant.
• Court: United States State Supreme Court of Missouri

Page 532

576 S.W.2d 532

STATE of Missouri ex rel. FORT ZUMWALT SCHOOL DISTRICT et

al., Relators- Respondents, v. Francis DICKHERBER, Auditor of St. Charles County, St.

Charles, Missouri, Respondent-Appellant.

No. 60648.

Supreme Court of Missouri, En Banc.

Feb. 13, 1979.

Linda S. Robinson, Ronald L. Boggs, St. Charles, for respondent-appellant.

Gerald R. Ortbals, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for relators-respondents.

SIMEONE, Judge.

I.

This is an appeal by appellant, Francis Dickherber, the auditor of St. Charles County from a writ of mandamus entered on May 31, 1977 by the circuit court of St. Charles County commanding the appellant to countersign checks or warrants issued by the treasurer or collector of St. Charles County for the payment of interest on school tax moneys collected by the county. Because the appeal involves the construction of the revenue laws of this state, we have jurisdiction. Art. V, § 3, Mo.Const. For reasons stated below we affirm the judgment of the circuit court.

II.

This proceeding has a long history and involves an interpretation of law relating to the payment of interest on school tax moneys received and deposited by the proper officials of St. Charles County. The precise issue is whether the interest on school tax moneys deposited in authorized depositaries should be paid to the treasurers of various school districts in the county or whether such interest should be credited to the general revenue fund of the county.

This proceeding began on July 18, 1974. On that date relators, various school districts including Fort Zumwalt District R-2 and the treasurer thereof, filed a petition for a writ of mandamus against the collector and treasurer of St. Charles County in the circuit court of St. Charles County. Relators sought mandamus against Paul F. Feurestein, collector of the county and Loretta Debrecht, treasurer. Respondent here, Francis Dickherber, was not made a party to that proceeding. Relators alleged that each corporate relator is a six-director school district maintaining a system of public schools in the county. Relators alleged that under appropriate statutes, §§ 165.071, 165.081, and 110.150 ¹, RSMo 1969, it was the duty of the treasurer and collector to forward to the respective treasurers of the school districts the interest on school tax moneys collected and invested by them. Demand had been made to forward such interest to the relators but the collector and treasurer failed and refused to do so. Relators prayed that the circuit court issue its writ of mandamus commanding the treasurer and collector to "forthwith deliver to each Treasurer-Relator interest earned on tax moneys received by Respondents in behalf of each Relator-School District . . . ." Respondents answered and relied upon § 52.360, RSMo 1969 ² contending that such interest "shall go to the general revenue fund of the County." Respondents contended that it is the duty of the collector to transfer interest on all funds to the credit of the general revenue fund of the county.

On August 29, 1974 the circuit court made its alternative writ absolute and ordered and enjoined respondents to pay to relators school districts the interest earned on all school tax moneys received and invested by them. That order was appealed to this court, but upon motion of the relators-respondents, the appeal was dismissed on October 13, 1975. The writ issued by the circuit court against the collector and treasurer then became final.

Subsequently, on February 19, 1976, relators filed a petition for a writ of mandamus against respondent-appellant Francis Dickherber the auditor of St. Charles County. In this petition relators school districts and treasurers of such districts alleged that under the law relators were entitled to interest, that a previous writ had been issued against the collector and treasurer but that respondent has failed or refused to sign warrants and prayed the circuit court to issue its writ of mandamus against respondent Dickherber to "perform all acts necessary, including the countersigning of all warrants," and to deliver to the relators the interest on tax money received on behalf of each school district. Respondent filed his return relying on § 52.350, and after the pleadings joined issue, the circuit court, on May 31, 1977, issued its writ of mandamus against the auditor, Mr. Dickherber.

Two affidavits were also filed. One affidavit was filed by the present collector of St. Charles County, Jim Primm. He stated that to the best of his knowledge all school moneys collected by the county collector's office during his term have been paid to the treasurer of each six-director school districts as provided in § 165.071. He further stated that at no time during his term had he paid school moneys to the county, treasurer or her office.

The other affidavit was filed by Loretta M. Debrecht, treasurer of the county. She stated that none of the "school monies" collected by the collector's office during her terms in office have been paid to her as treasurer of St. Charles County. By stipulation it was agreed that the county collector's affidavit that all school moneys have been paid to the treasurers of the school districts refers only to principal and not to interest.

The writ issued on May 31, 1977 by the circuit court, and which is the subject of this proceeding recited the allegations of the petition that (1) each relator is a six-director school district and the treasurer thereof, (2) that by a writ of mandamus issued on August 29, 1974, the county collector and treasurer were ordered to deliver the interest earned on all school tax moneys received and invested and that such previous writ is a final judgment, (3) the county collector and treasurer have attempted to comply with that writ of mandamus but "have been thwarted by the failure and refusal of Respondent (auditor) to countersign warrants for the payment of the interest earned on school tax moneys, (4) pursuant to §§ 165.071, 165.081 and 110.150, it is the " clear, unequivocal and specific duty of the St. Charles County Collector and Treasurer to pay at least monthly to the treasurer of the School Board of all six-director districts all moneys, including the interest on the school funds and, pursuant to Sections 52.370 and 55.160, RSMo., 1969, (sic) it is the duty of the St. Charles County Auditor to countersign any checks and warrants for the aforesaid payments;", (5) relators have made demands on the auditors to pay interest over to the treasurers of the school districts but that he has refused to "countersign" the warrants, thereby obstructing the treasurer and collector of the county from performing their duties and complying with the earlier writ of mandamus, and (6) that such conduct is arbitrary, capricious and unreasonable. The writ then commanded and ordered the auditor to:

". . . (A)ffix your signature to whatever checks or warrants have been issued and to whatever checks or warrants may in the future be issued by the Treasurer or Collector of St. Charles County for the payment of interest on school tax moneys and to perform whatever other acts may be required of you to accomplish the delivery of each Treasurer-Relator, the interest on all school tax moneys."

The auditor appealed that judgment to the Missouri Court of Appeals, St. Louis District but upon motion that court transferred the cause here because of jurisdiction.

III.

On this appeal, the appellant Dickherber makes three points: (1) the court erred in issuing the writ of mandamus commanding him to countersign warrants or checks for payment of interest on school funds to be delivered to the relators because the trial court "misconstrued" §§ 165.071, 165.081, RSMo 1969 and 110.150, RSMo Supp.1975 as being applicable to the payment of interest on school funds to the relators and that the applicable statute rather is § 52.360, RSMo Supp.1975; (2) the court erred in issuing the writ commanding him to countersign warrants or checks because the court lacked jurisdiction in the earlier writ against the collector and treasurer since relators failed to name the appellant-Dickherber as a necessary party as required by Rule 52.04(c) thus making the prior writ "null and void" as against appellant, and (3) the trial court erred in issuing the present writ of mandamus against him because the court lacked jurisdiction since the relators in this proceeding failed to join the collector of St. Charles County in violation of Rule 52.04.

The gist of the appellant-auditor's argument as we understand it is twofold. First, the governing and applicable statute dispositive of this proceeding is § 52.360 ³ because it "designates that the interest on all funds deposited by the collector is to go to the general revenue fund" and not to the school districts. ⁴ Second, he contends that §§ 165.071 ⁵, 165.081 ⁶ and 110.150 ⁷ do not govern this proceeding. He argues that since, under § 165.071 the collector in a second class county, unlike the collector in a third and fourth class county, pays school moneys directly to the school board and pays no school funds to the county treasurer and the treasurer receives no school funds from the collector, § 110.150 dealing with the county treasurer crediting interest on school funds to those funds is not applicable. Section 165.081 is not governing since that section deals with the county treasurer. Therefore all these sections can be harmonized and under recognized principles of law, the proper section to apply is § 52.360. He makes much of the fact that § 165.071 makes a distinction between the procedure of paying school funds in first and second class and third and fourth class counties.

As to his second point, appellant argues that the trial court erred in basing this writ against the auditor on the prior one filed against the collector and treasurer because the appellant was not named a party. He contends that the original...