State ex rel. Jeffries v. Trs. of Pacific

• Decision Date: 31 October 1875
• Citation: 61 Mo. 155
• Parties: STATE ex rel. JEFFRIES, Adm'r of KENNEDY, Appellant, v. TRUSTEES OF TOWN OF PACIFIC, Respondent.
• Court: Missouri Supreme Court

61 Mo. 155

STATE ex rel. JEFFRIES, Adm'r of KENNEDY, Appellant,

v.TRUSTEES OF TOWN OF PACIFIC, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Franklin County Circuit Court.

Crews & Napton, for Appellant.

I. The warrants were payable from a particular fund, and payment was refused for want of an appropriation. Here, a special tax is required to pay a special class of debts. Hence, mandamus will lie without a prior judgment. (Dil. Mun. Corp., § 686-88; Maddox vs. Graham, 2 Metc. [Ky], 56; State ex rel. vs. Bollinger, 48 Mo., 475; Insane Hospital vs. Higgins, 15 Ill., 185; Graham vs. Maysville, 6 Am. Law Reg., 589; Comm. ex rel. vs. Pittsburg, 34 Penn. St., 496.)

II. The case of Skinner vs. Platte County, 22 Mo., 437, simply decides that a county warrant, until presented for payment, and payment is refused, does not bear interest. And the endorsement of date of presentment simply shows when interest began to run. The statute in that case referred to, applies only where the warrants do not on their face bear interest. But here, they do bear interest on their face, and from date, and no such presentment and endorsement are necessary to show when interest begins. Here, the debt was past due when the warrants were issued, and it may be presumed that the ten per cent. was promised because the trustees knew this fact, and that there was no money with which to pay them.

III. The objection that this writ is in the alternative, has no force. In the case of State ex rel. vs. Milwaukee, (22 Wis., 397) the writ was quashed, because the acts, commanded to be done, were distinct in their nature, and the defendant might not know which to perform. But in this case the order directs that the assessment should be made only in the event that there was no money, which fact they could easily ascertain.

Henry Flanagan, for Respondent.

I. No judgment being rendered on these warrants, mandamus cannot lie. (State ex rel. vs. Clay Co., 46 Mo., 231; People ex rel. vs. Clark Co., 50 Ill., 213; Lexington vs. Mullikin, 7 Gray, 280; Wagn. Stat., 617, § 77.) In Timmerman vs. Bolinger, 48 Mo., 475, the warrants were drawn on the swamp land fund, and mandamus was the only remedy, as suit could not be brought in the ordinary form, so as to obtain judgment.

II. The charter of the town of Pacific (Sess. Acts, 1859) does not provide for a levy of special taxes, to pay these warrants. Hence, payment cannot be recovered by mandamus. (See Clark vs. Davenport, 14 Iowa, 494; Benoist vs. St. Louis, 19 Mo., 179; Burnes vs. Atchison, 2 Kans., 454.)

III. The warrants were payable out of a particular fund, but it is not shown that the fund existed when the warrants were presented for payment, or when mandamus was prayed; nor the authority of the board of trustees, to set apart a fund on which to draw the warrants. (See State vs. Slavin, 11 Wis., 153; State ex rel. vs. Clay Co. supra.)

IV. The writ, being in the alternative, is bad, and may be quashed on motion. (State vs. Milwaukee, 22 Wis., 397.)

V. As the warrants show, it was not the duty of the trustees, but that of the treasurer, to pay them. Hence, the command to the trustees was unlawful, and the writ should have been quashed. (Tap. Mand., 327.)

VI. The trustees had no power, under the charter or the statute, to issue warrants bearing interest from date. They can draw it only from date of presentation to and indorsement by the treasurer, and then only for six per cent. (Wagn. Stat., 1325, § 11; Sess. Acts, 1859, p. 183, § 20; See also Skinner vs. Platte Co., 22 Mo., 437; State vs. Treas. Cal. Co., 43 Mo., 230; Dil. Corp., 367, 643.)

WAGNER, Judge, delivered the opinion of the court.

This was an application for a writ of mandamus by the relator against the defendants as trustees of the town of Pacific, to compel them to pay certain warrants drawn by the town authorities, and in case there should be no money in the treasury, then to levy a tax to pay the same.

The petition does not show for what purpose the warrants were drawn, but on their face they are made payable out of any money appropriated for street work, and they are made to bear interest at the rate of ten per cent. per annum from their date.

At the return term of the Circuit Court, the respondents filed their motion to quash the alternative writ, which motion was sustained, and a final judgment was rendered thereon, and the relator prosecuted an appeal.

The general rule is that mandamus will not lie to compel the levy of a tax for the payment of warrants drawn on the treasury of a municipal corporation before the warrants have been reduced to judgment. (State ex rel., etc. vs. Clay Co., 46 Mo., 231; State ex rel., etc. vs. Bollinger Co., 48 Mo., 475.) And a reduction of the demand to a judgment is contemplated by the statute in all such cases, for it provides that whenever an execution issued out of a court of record in this State, against any incorporated town or city, shall be returned unsatisfied in whole or in part for want of property whereon to levy, such court, at the return term or any subsequent term thereof, may, by writ of mandamus, order and compel the chief officer, trustees, council, and all other proper officers of such city or town, to levy, assess and collect a special tax to pay such execution and all costs. (Wagn. Stat., p. 617, § 77.)

A distinction has been taken in the application of the rule between cases where the duty devolving upon the municipal authorities is merely a general duty of providing for the payment of all indebtedness against the municipality,...