State ex rel. White v. Clay Cnty.

• Decision Date: 31 March 1870
• Parties: STATE ex rel. C. J. WHITE, Relator, v. CLAY COUNTY, Respondent.
• Court: Missouri Supreme Court

46 Mo. 231

STATE ex rel. C. J. WHITE, Relator,

v.CLAY COUNTY, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Test: E. D. MURRAY, Clerk.

THOMAS M. CHEVIS, President.”

Petition for mandamus.

W. B. Napton, Jr., for relator.

I. It matters not, as far as the relator is concerned, whether the court borrowed money in form or not by issuing bonds therefor. Issuing warrants bearing ten per cent. interest to the contractors answered the purpose of the law, and essentially fulfilled the requirements of the act of the Legislature; and a departure on the part of the County Court, such as is disclosed in this case, can not affect the rights of the relator or the liability of the county. (See City of Bridgeport v. Housatonic R.R. Co., 15 Conn. 475; Slack v. Maysville & Lexington R.R., 13 B. Monr. 9; Maddox v. Graham & Knox, 2 Metc., Ky., 56; The People v. Mead, 24 N. Y. 114; State ex rel. Moran Bros. v. Commissioners of Clinton County, 6 Ohio St. 280; the last case is particularly referred to.)

II. In this case no injury could possibly result to the county by the court not issuing bonds and borrowing money in that manner, but, instead, issuing non-negotiable warrants bearing a less rate of interest by two and a half per cent. than the court was authorized to pay for a loan.

III. The relator stands in the place of an innocent bona fide purchaser for value of these warrants, and the county is estopped from asserting that they were illegally issued. (Hann. & St. Jo. R.R. v. Marion County, 36 Mo. 234.)

McCarty & Bining, and H. B. Johnson, for respondent.

I. The relator seeks, by mandamus, to compel the payment of unlawful and usurious interest This writ can not be invoked in the assertion of an inequitable claim. (State v. Treasurer of Callaway County, 43 Mo. 228.)

II. Where the amount of a claim is not fixed by law, it must be reduced to a judgment in a court in which a trial by jury can be had, before the levying a tax to pay the same will be compelled by mandamus. (Bennet v. Auditor Portage County, 12 Ohio, 54; Putnam County v. Allen County, 1 Ohio, 322; ex parteLynch, 2 Hill, 45; Boyce v. Russell, 2 Cow. 444; People v. Brooklyn, 1 Wend. 325; ex parte The Firemen's Ins. Co., 6 Hill, 243; People v. Chenango County, 11 N. Y. 573; 1 Tenn. 114; Moses on Mandamus, 107.)

III. Where a debt remains in its original form as a simple contract debt, not having been reduced to a judgment, the creditor has no legal right to mandamus to compel a municipal corporation to levy and collect a tax for its payment. (Coy v. City Council of Lyons City, 17 Iowa, 7.)

IV. A mandamus to levy a tax will not be granted where there has been no unreasonable delay. A County Court can not be charged with unreasonable delay where, for the purpose of paying county expenses and indebtedness, it has every year levied a tax upon the people of the county to the full extent allowed by law; and in such case the courts, in the use of their undoubted discretion, will refuse the writ. (Tilson v. Commissioners of Putnam County, 19 Ohio, 415.)CURRIER, Judge, delivered the opinion of the court.

This is a proceeding for a peremptory mandamus requiring the County Court of Clay county to assess a tax for the purpose of raising money to pay the claims set out in the petition. The petitioner states that he is the owner of one hundred and twenty-nine warrants issued by said county, for the sum of one hundred dollars each, dated May 7, 1861, and in the following form, to-wit:

“Treasurer of County of Clay:

[$100.]

Pay to the Farmers' Bank of Missouri (branch at Liberty) one hundred dollars, out of any money in the treasury appropriated for county expenses, with eight per cent. interest from 15th of April, 1861.

Given at the court-house this 7th day of May, 1861.

By order of the County Court.

Test: E. D. MURRAY, Clerk.

THOMAS M. CHEVIS, President.”

It is alleged that these warrants were issued under the authority of the act of November 5, 1857 (Adj. Sess. Acts 1857, p. 276), and upon that ground the application for a peremptory mandamus is founded. The return controverts that allegation and takes issue upon it.

The case shows that the county of Clay initiated measures for the erection of a court-house some six months before the act of November, 1857, was passed, and that prior to the passage of that act the work had been contracted for, and some four thousand dollars in county warrants paid on account of it. The County Court continued to issue warrants of the same character, varying only as to interest, until the whole job was paid for and the building accounts settled.

It appears that the contractors in the meanwhile used the warrants to borrow money upon, pledging them as collateral security to the Farmers' Bank for that purpose. Subsequently the bank adjusted its loan account with the contractors, and accepted the warrants in payment and satisfaction of it. At a later date, and in May, 1861, the Clay County Court took up the warrants held by the bank, and substituted in place of them two hundred and forty-nine warrants of one hundred dollars each, the warrants described in the petition being a portion of them, the plaintiff having acquired them by purchase and assignment. It further appeared that a portion of the warrants first issued by the County Court, on account of the building contract, bore no interest, and that they were subsequently, and after the passage of the act of November, 1857, changed by interlineation so as to carry interest at the rate of ten per cent. The foregoing are the material facts upon which the decision of the case depends.

The act of 1857 authorized the County Court of Clay county to “borrow” the amount of money therein specified, “to be appropriated in erecting a court-house in said county,” and to issue the “bonds” of the county for the money so borrowed. The act also authorized the court to levy a tax to meet the bonds so issued as they might mature. The bonds contemplated by the act were, by express requirement, to be issued “in the name of the county” and “under the seal...