State ex rel. State Highway Commission v. Camden County

• Decision Date: 23 August 1965
• Docket Number: No. 8332,8332
• Citation: 394 S.W.2d 71
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. COUNTY OF CAMDEN and Arthur E. Harper, Defendants, Edith Nelson, Intervener-Appellant.
• Court: Missouri Court of Appeals

Page 71

394 S.W.2d 71

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. COUNTY OF CAMDEN and Arthur E. Harper, Defendants Edith Nelson, Intervener-Appellant.

No. 8332.

Springfield Court of Appeals, Missouri.

Aug. 23, 1965.

Claude T. Wood, Richland, for intervener-appellant.

Robert L. Hyder, Joe Bill Carter, Jefferson City, for plaintiff-respondent.

STONE, Judge.

The State Highway Commission of Missouri (hereinafter called the Commission), as plaintiff, instituted this action on March 23, 1961, against the County of Camden (hereinafter called the County) and Arthur E. Harper, the county treasurer, as defendants, to recover $1,700.48, the balance in the Hurricane Deck Toll Bridge Account (sometimes referred to in the record as the Toll Bridge Revenue Bond and Interest Sinking Fund Account and hereinafter simply called the account) in which all tolls derived from operation of the Hurricane Deck Toll Bridge (hereinafter referred to as the bridge or as the toll bridge) had been deposited prior to discontinuance of tolls on or about April 1, 1953. On January 25, 1964, Edith Nelson (hereinafter called the intervener), who had been county treasurer of Camden County throughout the period from January 1, 1943, to April 1, 1953 (and for several years thereafter), by leave of court filed her amended intervening petition in which she claimed the balance of $1,700.48 in the account which (as she pleaded) 'now remains in the hands of [defendant Arthur E. Harper] the present county treasurer of Camden County' and prayed that the court order payment thereof to her individually. Upon plaintiff Commission's motions thereafter filed, the court entered summary judgment dismissing the amended intervening petition of Edith Nelson and directing defendants, County of Camden and Arthur E. Harper, to pay to the Commission the balance of $1,700.48 in the account. After an unavailing motion to amend the judgment or for a new trial, intervener perfected this appeal.

Prior to the filing of briefs, counsel joined in a written 'stipulation' to transfer the case to the Supreme Court of Missouri on the ground that this is a civil case to which a county is a party. Art. V, Sec. 3, Mo.Const. of 1945, 2 V.A.M.S. However, appellate jurisdiction may not be conferred even by express consent [Mack v. Mack, Mo., 281 S.W.2d 872, 873(1); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(1); Collier v. Smith, Mo.App., 292 S.W.2d 627, 630-631(4)]; and, with our preliminary consideration leaving us in doubt concerning appellate jurisdiction, we treated the stipulation of counsel as a motion to transfer to be taken with the case. In the jurisdictional statement in intervener's brief [V.A.M.R Rule 83.05(b)], counsel adhered to the view that this case is within the exclusive appellate jurisdiction of the Supreme Court; but, after frankly acknowledging that they had been 'on both sides of the [jurisdictional] question,' counsel for the Commission expressed the belief in their brief that the appeal properly had been lodged in this court. With appropriate respect for, but without regard to, the (presently-conflicting) opinions of capable counsel, we make independent inquiry as to our jurisdiction.

In their joint answer, defendants County of Camden and Arthur E. Harper, the county treasurer, stated 'that the defendants disclaim any ownership of the funds in question and have not withheld said funds from the plaintiff [Commission] because of any claim of ownership, but have not paid said funds over to the plaintiff because these defendants have not been able to ascertain the lawful owner thereof by reason of the fact that both plaintiff and the said Edith Nelson [intervener] claim to be entitled to said funds.' After dismissal of intervener's amended petition and entry of judgment, defendants filed no after-trial motion and did not appeal. Thus, although sued as a party defendant, the County by its answer assumed a position akin to that of an interpleader. Cf. Johnson County v. Bryson, 27 Mo.App. 341, 350(3). And, upon entry of judgment denying intervener's claim and awarding the balance in the account to the Commission, the County by its subsequent course of inaction removed itself from the case and is no longer 'a party to the record' [State ex rel. Heath v. County Court for New Madrid County, Mo., 324 S.W.2d 662, 663(3)] for appellate jurisdictional purposes. Witt v. City of Webster Groves, Mo., 383 S.W.2d 723, 725(1). In this connection, see Barrett v. Stoddard County, Mo.App., 183 S.W. 644, 648(13); Barrett v. Stoddard County, 272 Mo. 129, 134-135, 197 S.W. 914, 915. The motion to transfer is denied and we proceed to the merits of the appeal.

On July 16, 1934, the County entered into 'a loan and grant agreement' with the United States of America, pursuant to which the County, so authorized by legislative enactment [Laws of 1933-34, 1st Ex.Sess., p. 115; now Secs. 234.210 and 234.220], issued and sold to the United States (which, in turn, sold to the Reconstruction Finance Corporation, a governmental agency) four per cent serial funding bonds known as County of Camden Toll Bridge Revenue Bonds (hereinafter called the bonds) in the aggregate principal amount of $512,000, and the United States made a grant of $143,513.23 to the County. (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.) The proceeds of this loan and grant were used by the County for construction of the Hurricane Deck Toll Bridge across the Lake of the Ozarks on Missouri State Highway No. 5 in Camden County. Pursuant to statutory authorization [Laws of 1933-34, 1st Ex.Sess., p. 116; now Sec. 234.220(3)], the County pledged the revenue derived from the bridge to retire the bonds by giving a lien on such revenue to the bondholders. Upon completion of the bridge, the County operated and maintained it, deposited all revenues derived therefrom in the account, and paid by county warrants drawn on that account all expenses incident to operation and maintenance of the bridge.

On March 31, 1947, the judges of the county court purported to enter into a contract with intervener Edith Nelson to pay her $2,500 'as compensation for services theretofore rendered by [her] as custodian of the revenue derived from the operation of said toll bridge at the rate of $50 per month from January 1, 1943, to March 1, 1947,' during all of which period she had been county treasurer. Thereafter, to wit, on June 25, 1947, Reconstruction Finance Corporation, the owner and holder of the bonds (which had been in default continuously since January 1, 1935, the first interest payment date), as plaintiff, instituted a civil action, docketed and hereinafter referred to as Case No. 332, in the United States District Court for the Western District of Missouri, against the judges of the county court and Edith Nelson, county treasurer, as defendants, in which case plaintiff RFC sought a decree directing defendants to restore to the account the aforesaid sum of $2,500 and enjoining the judges on the county court from paying, or authorizing the payment of, any sum to defendant Nelson, the county treasurer, for services rendered in connection with keeping or disbursing revenues derived from operation of the bridge.

Upon trial of Case No. 332, the court found and declared that, in the construction and operation of the bridge, the County exercised a governmental function; that the tolls collected in operation of the bridge were 'public funds,' which defendant Nelson was required 'by virtue of her office to receive, keep and disburse' [see Sec. 54.100]; that, as county of the Camden County, then a county of the fourth class [Laws of 1945, p. 1801; now Sec. 48.020], defendant Nelson was paid a stated salary fixed by statute, which also provided that 'salaries set out and prescribed in this section shall be in lieu of any other or additional salaries, fees, commissions or emoluments of whatsoever kind for county treasurers . . .' [Laws of 1945, p. 1541; now Sec. 54.270]; that Art. VI, Sec. 11, Mo.Const. of 1945, required that '. . . the compensation of all county officers shall be prescribed by law uniform in operation in each class of counties'; and that defendant Nelson was 'not entitled to receive any salary, fee or compensation' for services rendered in keeping or disbursing revenues derived from operation of the bridge. The court entered a decree as prayed by plaintiff RFC, which became final without an appeal. This and the last two preceding paragraphs are digested from a certified copy of the file in Case No. 332, made a part of the record without objection at the hearing on plaintiff's motion to dismiss intervener's amended petition.

Plaintiff's petition in the instant case alleged, and defendants' answer admitted, that on or about February 5, 1953, the judges of the county court and 'various other public officials and citizens' of the County appeared before the Commission and requested it 'to take steps to acquire all the outstanding indebtedness against [the] bridge . . . at a cost to the Commission in the amount of $476,169' and that the county court then agreed that, if the Commission acquired the 'outstanding bonds,' the County would convey the bridge to the Commission and also would pay to the Commission 'all the funds in the Hurricane Deck Toll Bridge account after payment of all lawful obligations against said bridge account.' Plaintiff's petition further alleged, and defendants' answer also admitted, that the Commission did acquire all outstanding bonds at a cost of $476,169, and that thereafter a representative of the Commission met with the county court on or about March 18, 1953, at which time the county court entered an order conveying the bridge to the Commission and directing the county treasurer (intervener) to pay to the Commission (a) the sum of $38,754.62 at that time and (b) any balance in the...