State ex rel. Watkins v. Macon Cnty. Court

• Decision Date: 31 October 1878
• Citation: 68 Mo. 29
• Parties: THE STATE ex rel. WATKINS v. MACON COUNTY COURT.
• Court: Missouri Supreme Court

68 Mo. 29

THE STATE ex rel. WATKINS

v.MACON COUNTY COURT.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

J. L. Berry and S. J. Wilson for relator.

The judgment is a general liability against the county, and payable out of the common fund of said county, and it was the duty of the county court to direct its clerk to issue a warrant on the county treasurer for its payment. Wag. Stat., sec. 28, p. 414, Ib., sec. 31, p. 415. By virtue of the provisions of the act of the General Assembly of Missouri, chartering the Missouri & Mississippi Railroad Company, Macon county subscribed to the capital stock of said railroad company to a large amount, and is, to-day, the owner and holder of such stock, and in consideration therefore, issued and delivered her bonds, stipulating therein, absolutely and unconditionally to pay her subscription, dollar for dollar, at the maturity of said bonds, and it matters not whether the stock is worth par or worthless, the liability of the county to pay the bonds is fixed and absolute. The tax of one-twentieth of one per cent. provided for in the act chartering said railroad company, was intended to give additional credit and commercial value to county bonds issued for subscription to the stock of said railroad company. The subscription was authorized to aid in the construction of a railroad, and it was certainly not intended by the act that the value of the bonds was to be impaired by the provision of a limited special tax to pay them, entirely inadequate, thereby defeating the very object for which the subscription was authorized. U. S. ex rel. Johnson v. Clark County Court, 96 U. S. 211.

James Carr for respondents.

Is there any other power to enforce the payment of these bonds and coupons conferred upon the county court of Macon county than to “levy a tax to pay the same, not to exceed one-twentieth of one per cent. upon the assessed value of the taxable property for each year?” None. It is not so nominated in the act. The power to issue the bonds was created by the act, and by the act the power to enforce the payment was likewise conferred. Whatever this secures the relator is entitled to its full measure; no more; and the respondents do not ask him to take any less. There is no statute of this State, aside from the 13th section of the charter of the railroad company, which confers any authority on the respondents, as justices of Macon county court, to levy any tax at all for the purpose of paying the bonds in controversy. What then would be the effect of ordering a warrant to be drawn upon the common fund of the county? It would take every dollar out of the treasury and leave nothing to pay the expenses necessarily incurred in administering the county government. The money which had been levied and collected of the taxpayers of the county, according to law, would thus be diverted from its legitimate purpose, and perverted to one which was not only not authorized, but which was in fact against the direct wishes of nine-tenths of the tax-payers of the county, and ex necessitate, would disorganize it; for money is as much the sine qua non of government, as it is of war. This would be doing indirectly what the court could not do directly. Courts do not knowingly render judgments which produce, or even tend to produce, such anarchy.

It is the policy of the governments of all civilized countries to sustain themselves anyhow and at all events. The rights of the government are always held paramount to those of the citizen. It is upon this principle that the salary of a public officer is not subject to garnishment, the presumption being that he would not be able to perform his duty to the public without the regular payment of his salary. It is upon the same principle that the government drafts citizens into its military service, forcing them away from their homes, from father, mother, brothers, sisters, wife, children, friends, from everything that is near and dear to them, and placing them in the face of the enemy, in the valley of the shadow of death, to fight, to bleed, and, perhaps, to die. And it is upon the same principle that government is always a preferred creditor against every man's estate, solvent or insolvent. 1 Kent, 262; Rev. Stat. U. S., § 5101, p. 988; Wag. Stat., § 1, p. 101.

A county is a political subdivision of the State, and the county court is a part of the State government with specific powers, duties and functions generally local to the county, it is true, but derived from the State and not from the county. Reardon v. St. Louis Co., 36 Mo. 561; St. Louis Police Commissioners v. County Court, 34 Mo. 546; Steines v. Franklin Co., 48 Mo. 188; Ray Co. v. Bentley, 49 Mo. 236. The return shows that the effect of drawing a warrant upon the common fund would be to disorganize the county government. The county court is a part of the State government. This court will not lend itself to any such anarchical act.

Where a debt has been incurred by a county, with the understanding that it was to be paid out of a particular fund, such as the road and canal fund, the creditor of the county, if that fund turns out to be insufficient, is not entitled to resort to the common fund for payment. Pettis Co. v. Kingsbury, 17 Mo. 479; Kingsberry v. Pettis County Court, 48 Mo. 208; The State v. Bollinger County Court, 48 Mo. 475; Campbell v. Polk Co., 49 Mo. 214. The section authorizing the respondents, as justices of Macon county court, to order the warrant to be drawn, and the section which empowers the county courts “to levy such sums as may be annually necessary to defray the expenses of their respective counties by a tax upon all property, and licenses made taxable by law for State purposes,” (Wag. Stat., § 165, p. 1193,) should be so construed as not to disorganize or stop the wheels of the county government, although such construction might result in the county's judgment creditor not being paid anything out of the common fund of the county, which has been levied and collected for the express purpose of defraying the expenses of the county. The following cases hold that the current expenses of the county must be first paid before a general judgment creditor of the county is entitled to be paid, and the decisions are based on the inexorable necessity, that the county government must live, and the rights of the citizen are always subordinated to those rights. Grant v. City of Davenport, 36 Iowa 401, Coffin v. Same, 26 Iowa 315; Iowa R. R. Land Co. v. County of Sac, 39 Iowa 134; French v. Burlington, 42 Iowa 618; Von Hoffman v. City of Quincy, 4 Wall. 549; Commonwealth v. Commissioners of Lancaster Co., 6 Binney 5.

NORTON, J.

This is a proceeding instituted in the circuit court of Macon county against the defendants as justices of the county court of Macon county, to compel them by mandamus to draw a warrant on the county treasurer of said county, payable out of the general expenditure fund. It is alleged in the petition that the relator obtained judgment in the circuit court of Macon county for the sum of $3,645 against said county on certain bonds issued and delivered to the Missouri & Mississippi Railroad Company in payment of a subscription of stock to said company, made under and by virtue of the charter of said company; that said judgment is unpaid, and that the county has no property out of which said judgment, or any part thereof, could be made on execution; that the levy of one-twentieth of one per cent. on the assessed value of the taxable property of said county is wholly insufficient to pay said judgment and other judgments now subsisting against the county on other bonds issued to said company; that defendants, upon demand made, refused to issue their warrant to relator in discharge of said judgment to the county treasurer, payable out of the common fund of the county.

The defendants, in their return to the alternative writ, admit all the facts stated in the petition, and set up by way of further returns that the stock was subscribed and the bonds issued to said company under the provisions of the 13th section of said charter, which is as follows “It shall be lawful for the corporate authorities of any city or town or county court of any county desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor and levy a tax to pay the same not to exceed one-twentieth of one per cent. upon the assessed value of the taxable property for each year.”

That in and by virtue of the power thus conferred, and no other, the said county court, without a vote of the people, and against the wishes of a large majority of the people, subscribed, on the 16th of April, 1867, $175,000 to the capital stock of said company, and also on the 12th of April, 1870, made a like subscription of the further sum of $175,000 under the same authority and no other, without a vote of the people and against the wishes of nine-tenths of the voters of said county; that the county court of said county has levied every year, since such subscriptions were made and bonds issued, a special tax of one-twentieth of one per cent. on the assessed value of all the taxable property in said county, which tax has been regularly collected and applied to the payment of said bonds and interest; that the tax thus collected was wholly inadequate to pay all the interest on said bonds; that the constitution of 1875, section 11, article 10, limits the power of the county to impose a tax for county purposes to 50 cents on the $100 valuation; that section 165, chapter 118 Wagner's Statutes, provides that the “several county courts are empowered to levy such sums as may be annually necessary to defray the expenses of their respective counties by a tax upon all property and licenses made taxable by law for State purposes, but the tax shall in no case exceed one-half of one per cent. on all taxable property.” That the tax thus authorized to be...