State ex rel. Thomas v. Treasurer of Callaway Cnty.

• Decision Date: 31 January 1869
• Parties: THE STATE OF MISSOURI ex rel. WILLIAM H. THOMAS et al., Petitioners, v. THE TREASURER OF CALLAWAY COUNTY, Respondent.
• Court: Missouri Supreme Court

43 Mo. 228

THE STATE OF MISSOURI ex rel. WILLIAM H. THOMAS et al., Petitioners,

v.THE TREASURER OF CALLAWAY COUNTY, Respondent.

Supreme Court of Missouri.

January Term, 1869.

Petition for Mandamus.

A. Budd, for petitioners.

I. County Courts have full power and authority to audit and settle all demands against the county. (Gen. Stat. 1865, p. 556, § 9.)

II. The County Court had jurisdiction over the subject matter. (Gen. Stat. 1865, p. 556, § 9; Sess. Acts 1868, p. 137, §§ 27, 29.)

III. County treasurers must pay warrants drawn by order of the County Court. (Gen. Stat. 1865, p. 227, § 7.)

IV. The allowance of the claims of the relators was a judicial act. It cannot be impeached collaterally. (Baker v. Johnson, 41 Maine, 15; Huff v. Knapp, 1 Seld. 67; Supervisors of Onondaga v. Briggs, 2 Den. 26; Caldwell v. Lockridge, 9 Mo. 361; Price v. Johnson, 15 Mo. 433; 6 Hill, 245-6.)

V. The said order of allowance could not be vacated or reopened, even during the same term of the County Court at which it was made, without due notice to the relators. (Caldwell v. Lockridge, 9 Mo. 361; Price v. Johnson, 15 Mo. 433.) And without such notice the action of the court vacating the order of allowance would be void ( id). But the said order of allowance has not been vacated.

VI. The treasurer of the county had no power to vacate the order of allowance or to reverse or modify it. And the notice to the said treasurer is a nullity.

Mandamus will lie against a county treasurer to compel him to pay, etc. (Moses on Mand. 99); may issue against officers of quasi corporations by official name ( id. 200-1)

John A. Flood, for respondent.

BLISS, Judge, delivered the opinion of the court.

On the 20th of October, 1868, the account of the members of the board of registration of the county of Callaway, composed of the relators, for expenses and per diem, amounting to $413.70, was allowed by the County Court, and a warrant drawn upon the treasurer of the county, which warrant was duly presented, and the proper indorsement made of “no funds.” Afterward, when in funds, the warrant was again presented, and payment refused, upon the ground that the County Court had ordered him to pay only part of the warrant. The return to the alternative writ does not deny the auditing of the account, the issuing and protest of the warrant, the subsequent receipt of funds and refusal to pay the warrant, but sets up as an excuse that, on the 18th of November, 1868, the County Court made an order upon him to pay only $306 of the warrant, and that he is ready to pay that amount. The return also exhibits a copy of the account allowed, and shows that $306 covers the per diem of the board, and that the balance is for cash paid for expenses. The relators demur to the return. There is no doubt that County Courts may ordinarily vacate and set aside an order made during the term, upon notice to those to be injuriously affected by it. (Caldwell v. Lockridge, 9 Mo. 358; Price v. Jackson Co., 15 Mo. 433.) But the order recited in the return was not made at the same term in which the account was allowed, neither does it reverse the original order, nor was any notice given to the relators. The original account was allowed, the warrant was issued; and at a subsequent term, without notice, the County Court makes an order on the treasurer to pay only a part of the warrant. We know of no authority for such a proceeding. It is unnecessary to suggest the remedy where a claim clearly illegal has been allowed, either corruptly or by mistake, and the term has passed--whether against the officer, or by appeal, or injunction, or in some other way. But where the allowance by the court has been regularly had upon a claim they are required to pass upon, and the warrant has been drawn and presented, and the court adjourned for the term, the treasurer has but one duty; and no subsequent court, not of superior jurisdiction, can excuse him from the performance of that duty. There is no doubt of the jurisdiction of this court by mandamus against county treasurers who refuse to pay claims properly audited. They are ministerial officers, and can be compelled to perform their plain duties.

But in entertaining the application we will look into the claim allowed by the court. It does not follow that, because it is the duty of the treasurer to pay, we will...