State ex rel. Frazer v. Holt County Court
| Citation | 37 S.W. 521,135 Mo. 533 |
| Parties | The State ex rel. Frazer, Appellant, v. Holt County Court |
| Decision Date | 11 November 1896 |
| Court | United States State Supreme Court of Missouri |
Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.
Reversed.
T. W Collins and T. C. Dungan for appellant.
(1) The record and evidence disclose that every necessary preliminary step has been taken by the county court to authorize the creating of the indebtedness, and the issuing of the warrant. (2) Where jurisdiction exists, proceedings are in nature of judgments, and can not be collaterally assailed, but are held conclusive of the rights of parties. Lingo v Burford, 112 Mo. 149; Windsor v. McVeigh, 93 U.S. 274; Nash v. Williams, 87 U.S. 226; Evans v. West, 38 N.E. 65; State ex rel. v. Meyer, 80 Mo. 601; Sheridan v. Fleming, 93 Mo. 322, and cases cited. (3) The county court is the proper and only tribunal to ascertain and pass upon the sufficiency and legality of the various necessary steps taken, and facts existing, to authorize the making of such improvements, and providing means for the payment of the same. (4) The county court is now estopped to contradict their own record, and to show irregularities in the proceedings. The taxpayers petitioning for improvement must be assessed to pay for same and can not set up irregularities or illegalities in the proceedings. (5) The warrant is not barred by the statute of limitations under either section 6774 or 6775, or under section 3195, Revised Statutes of Missouri, 1889. (6) Generally county warrants are not barred until after ten years. Valleau v. Newton Co., 81 Mo. 591. (7) The payments made upon the warrant renew and extend the same for another statutory period of ten years. Bender v. Markle, 37 Mo.App. 234; Shannon v. Austin, 67 Mo. 485; Haver v. Schwyhart, 39 Mo.App. 303. (8) It is not barred by section 3196, for no funds have ever been in the county treasury since its last presentation, for its payment. Grayson v. Latham, 4 S. Rep. 200; Brewer v. Otoe Co., 1 Neb. 373; King, etc., Co. v. Otoe Co., 124 U.S. 459; Wetmore v. County, 34 N.W. 751.
Geo. W. Murphy, prosecuting attorney, and L. R. Knowles for respondent.
(1) It is shown, by the evidence produced on the part of the respondent, that part of the ditch tax has been paid as assessed, that part has never been paid, and part of said lands has been sold under execution for said tax, but did not bring enough to pay costs of suit. All the lands can not be sold or retaxed, under such conditions, and that is what relator asks this court to do, and the peremptory writ must strictly conform to the alternative writ. School District v. Landerbaugh, 80 Mo. 190; 14 Am. and Eng. Ency. of Law, p. 214, and cases cited. (2) When a mandamus is wanted for purposes, partly legal and partly not, the court will not enforce it by a peremptory writ limiting its effect, but will quash it. School Dist. v. Landerbaugh, 80 Mo. 190, and authorities cited; State ex rel. v. Davis, 54 Mo.App. 447. (3) The petition in this case was informal, not signed by a majority in interest of the owners of the lands benefited; therefore not such a petition as required by law (see Session Acts, 1869, p. 63); it was, therefore, void and all subsequent proceedings had under it were void. Therefore the tax can be defeated by the landowners, and a mandamus against the county for an additional levy would be "a vain and useless thing." The county courts are not the general agents of the counties, or of the state. Their powers are limited and defined by law, and when they exceed their statutory authority their acts are void. Sturgeon v. Hampton, 88 Mo. 204; Butler v. Sullivan Co., 108 Mo. 630. (4) Persons dealing with such agents are bound to take notice of their powers and authority. Andrew Co. v. Craig, 32 Mo. 531; State v. Bank, 45 Mo. 538; 88 Mo. 204; 108 Mo. 630. (5) When the acts of counties are void, beyond their statutory authority, or illegal, the doctrine of estoppel does not apply. Sturgeon v. Hampton, 88 Mo. 204; Ellis v. Railroad, 51 Mo. 200. (6) A court of equity will refuse relief where the party has slept on his rights for an unreasonable length of time, and this, too, without regard to the statute of limitations. Kroenung v. Goehri, 112 Mo. 648; 14 Am. and Eng. Ency. of Law, p. 186. (7) And petitioner must show diligence. 14 Am. and Eng. Ency. of Law, p. 107, and cases cited, also p. 125, and cases cited. State v. Court, 41 Mo. 598. (8) The court may refuse relief, in its discretion, even where relator has undoubted legal right. 14 Am. and Eng. Ency. of Law, p. 215; State ex rel. v. Railroad, 77 Mo. 143; High on Extraordinary Remedies, art. 9. (9) In this case the county court ever refused to make payment, or make an additional levy as is shown by the record in this case. Any payment made by the treasurer subsequent to 1882 was unauthorized, and not binding on the court or county, as the county was not privy to it. Goddard v. Williams, 72 Mo. 131; Loeffer v. Hoss, 11 Mo.App. 135; 13 Am. and Eng. Ency. of Law, pp. 752, 753, and 754, and cases cited. The claim is, therefore, barred by statute. Sections 6774 and 6775, R. S. 1889. (10) Part payment, to take the demand out of the statute of limitations, must be made with the express, or implied, authority of the debtor. Mere indorsement of a credit without the privity of the maker, is not of part payment for this purpose. Buck Hass v. Hoss, 31 Mo. 180; Phillips v. Mahan, 52 Mo. 197; Loever v. Harvey, 20 Mo.App. 163.
This is a proceeding by mandamus, instituted in the circuit court of Holt county, to compel the county court to levy a tax upon the land scheduled and reported to have been benefited by the construction of a ditch or improvement known as Craig Ditch No. 2.
Briefly stated, the facts as shown by the pleadings are that, at the regular May term, 1875, of the county court a petition, signed by Corber, Goldberry, and others, who were owners of contiguous bodies of swamp or overflowed lands in said county was presented, asking for the construction of a certain ditch in township 62, range 39, in said county under the provisions of an act of 1869 (Session Acts 1869, page 63).
On May 7, 1875, the evidence was heard and the work was found to be practicable, and that a majority in interest of the owners of the contiguous bodies of land to be affected thereby had signed the petition and signified their willingness to pay their part of the expense and cost of the work. It was also found as a fact that due notice of the presentation of the petition had been given.
The county court appointed three commissioners to superintend the construction of the work, and these commissioners under an order of the court, viewed the lands and made an estimate of the probable cost of the work, and did all other things required by the act aforesaid. They then invited bids by sealed proposals in writing, and one Sheridan being found to be the lowest bidder, they entered into a contract with him, and the work was by him completed during that year, in accordance with the contract, and reported to the court by the commissioners, and their report was accepted and approved by an order entered of record, and a proper bond was given for the faithful performance of the work as required by law.
The commissioners made a descriptive list of sections and parts of sections, that would be wholly or in part benefited by the work, stating the owners' names and the prospective value of the lands after the completion of the work, and also estimated the benefits which they believed would accrue to the county at large by reason of the improvement on account of the increase in valuation of the taxable property in the county caused thereby.
After the work had been completed, and upon the certificate of the commissioner, the clerk of the county court issued to Sheridan his order or warrant number 20 on the treasurer of Holt county, for the sum of $ 519.58 as part payment for the construction of said work under the direction and sanction of the county court dated December 10, 1877, and the warrant was on that date presented by Sheridan to said treasurer for payment and indorsement, and stamped by him "not paid for want of funds."
In 1878, for value received, Sheridan sold this warrant to relator; and on May 14, 1881, the treasurer paid relator $ 106.23 thereon, and same was credited in writing on the warrant, and again on March 19, 1885, $ 24.37 was paid by the treasurer on said warrant, and credited in the same manner upon the back of said warrant.
The petition further states that there had been no money since in the hands of the treasurer for the payment of said warrant in whole or in part, and that the same had been presented from time to time for payment and refused on account of lack of funds; that on March 13, 1882, a written application was made and filed in the county court for the levy of a special assessment for the payment of this warrant, with others then due, which was by the court refused, and the court then refused to do anything, or to make any record in the matter whatever.
Again on February 3, 1892, the relator presented a written application or petition to the county court asking for the levy of a tax for the payment of this improvement and the outstanding warrants therefor, and the court, by an order of record, refused to make such levy, or in any way to provide for the payment thereof, and then this mandamus proceeding was begun in the circuit court asking that the county court be required to make an additional levy for the purpose of paying this warrant, as relator was entirely without other legal remedy in the premises.
An alternative writ was issued and a return was...
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