State v. City of Willow Springs

• Decision Date: 29 February 1916
• Docket Number: No. 17676.,17676.
• Citation: 183 S.W. 589
• Parties: STATE ex rel. POOLE v. CITY OF WILLOW SPRINGS.
• Court: Missouri Supreme Court

183 S.W. 589

STATE ex rel. POOLE v. CITY OF WILLOW SPRINGS.

No. 17676.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Texas County.

Mandamus by the State, on relation of E. B. Poole, against the City of Willow Springs. From a judgment for relator, defendant appeals. Reversed and remanded, with directions.

This is a proceeding by mandamus to enforce the collection of a judgment against defendant. The venue was changed from Howell to Texas county, and the case tried there. It appears from the record that J. Guiney recovered, on June 27, 1902, in the Howell circuit court, a judgment for conversion against defendant for $1,183.33, and $25.10 costs (107 Mo. App. 166, 80 S. W. 1196); that said judgment for value was sold and assigned to plaintiff, E. B. Poole, who is the owner of same; that divers executions have been issued by the clerk of Howell circuit court on said judgment, directed to the sheriff of said county; that each of said executions has been returned by the sheriff of said county, with the return thereon, that there was no property found upon which to levy same; that defendant is a city of the fourth class; that said defendant has repeatedly refused, and still refuses to pay any part of said judgment for the alleged reason; that it has no funds on hand with which to pay the same.

The petition charges that at the commencement of this action the judgment aforesaid, including interest and costs, amounted to $1,933.06; that defendant has a mayor, a board of aldermen, an assessor, a city collector, a city treasurer, and all other necessary officers for performing its legal functions; that the board of aldermen aforesaid, in 1910 and 1911, as required by law, passed ordinances levying taxes upon all the property in said city subject to taxation; that the city collector will collect the taxes due under said ordinances and the laws of Missouri, and will turn over same to the treasurer of defendant; that under the laws of this state plaintiff is entitled to have all the funds in possession of defendant and its officers, belonging to said city, or any funds which may come into its treasury from general taxes, or license taxes, subjected to the payment of said judgment, except a sufficient sum to pay the following obligations, to wit: Such amount as may be necessary to pay the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney, and a reasonable police force of such city, as provided by section 2254, R. S. 1909. It is alleged in the petition that the total amount of money necessary to pay the reasonable and necessary salaries of officers and a police force of defendant, as provided by said ordinance, will not exceed the sum of $1,000.

The trial court was asked to issue a writ of mandamus, requiring the board of aldermen of defendant, etc., to properly enact an ordinance levying a tax to the full constitutional limit upon all property in said city subject to taxation, and requiring the mayor of said city, or the president of the board of aldermen, in the absence of the mayor, to sign and approve such ordinance, and requiring the proper officers of defendant to enforce such ordinance, and collect all taxes due said city, or which may hereafter become due, and turn over the same to defendant's treasurer, as provided by ordinance of said city, and requiring said city collector and marshal to collect all taxes, including license taxes, and turn the same over to the city treasurer, etc., and requiring the city treasurer to pay over to E. B. Poole, the owner of said judgment, or his attorneys of record, from time to time as they shall demand the same, or as the court may order, all moneys received by defendant from any and all sources, except such as may be necessary to pay the salaries of the city officers above designated, and a reasonable police force. An alternative writ of mandamus was issued, following the language of the petition.

Defendant in its return admitted that it was a city of the fourth class, but denied every other allegation in petition. It avers that it levies 50 cents on the $100 for revenue purposes under the Constitution of Missouri, and that said levy is insufficient to meet the necessary and ordinary current expenses of said city, and that it has at no time a surplus revenue after paying such current expenses. The return alleges that the judgment aforesaid is not based on any contract liability of defendant, or for any current expenses of same, nor on account of any salary due any city official or employé; that it was based on an action for damages growing out of the alleged conversion of certain property claimed by said Guiney; that there is no surplus in the general revenue of said city, nor in any fund, which can legally be applied on said judgment.

The return sets up a judgment of the Howell circuit court, rendered on December 16, 1907, in its favor, wherein said Guiney and Poole were plaintiffs and said city was defendant, in which said plaintiffs sought to compel defendant to pay the judgment aforesaid out of the revenue collected by it. The parties tried the above case upon an agreed statement of facts, and the circuit court aforesaid found and held that defendant was entitled to retain from the 50-cent levy a sum sufficient to defray all the necessary current expenses of said city, and that it was not limited to the payment of the city officers and police force, but that it was entitled to retain enough to meet the necessary current expenses of the city. Said stipulation as to the facts, in the trial of 1907, is in substance as follows:

It is agreed that 50 cents on the $100 valuation allowed under the Constitution of Missouri to defendant for city purposes is necessary and required to meet all the current expenses of said city, and that, after all said current expenses have been paid for each and every year, no surplus will be left to be applied on said judgment. It is stipulated and agreed that the 50 cents on the $100 valuation will raise a sum sufficient to pay the reasonable salaries allowed by law to the mayor, council, assessor, marshal, constable, attorney, and a reasonable police force of defendant; that after the payment of above items there will remain for each and every year about $1,500, which plaintiff claims under section 3233, R. S. 1899, can be legally applied to the payment of said judgment; that defendant claims said sum last named cannot be legally applied to the payment of said judgment. It is further stipulated that said $1,500 surplus, left after the payment of the salaries aforesaid and said police force, is required for the purpose of keeping in repair the streets and alleys of defendant, and for all other current expenses required by law not covered by the salaries of officers named, and that, after the payment of all the current actual expenses of defendant, no surplus will remain. It is further stipulated and agreed that there are outstanding bonds against defendant to the extent of $4,500, bearing 5 per cent. interest, payable semiannually; that the city has from year to year levied, in addition to the 50 cents on the $100 valuation aforesaid, sums sufficient to create a sinking fund for the payment of said outstanding bonds, and to pay the current interest on same; that there has been raised from this taxation, and is now in the city treasury, an interest fund, not needed to pay the interest on any of the bonds, to the sum of $1,000.

Plaintiff contends that this last-named amount is subject to the payment of his judgment; that the current revenue collected in excess of the amount sufficient to pay the mayor, council, assessor, marshal, constable, attorney, and police force should be applied on his judgment. Defendant contends that no part of the current revenue collected during any one year can be applied on said judgment, until all the current expenses of defendant are first provided for and paid; that no part of the interest fund can be applied to the payment of said judgment, because it was not levied for that purpose, but for the special purpose of paying the interest on the bonded indebtedness aforesaid; that no part of said interest fund can be used to pay said judgment, until the bonds for which this interest has been provided have been fully paid; that said bonds are not yet due, and the above fund of accumulated interest must be applied to the payment of future interest on said bonds; that it will not be necessary to levy an interest tax until said surplus has been so exhausted, and that it is held for that purpose.

Defendant in its return avers that every question of law and fact in this case was adjudicated in the proceeding aforesaid and by said judgment; that said case was appealed to the Supreme Court and is still pending. It is further averred by respondent in its return that it has levied and does levy each year the full amount allowed by the Constitution and laws of Missouri, and that it has not at any time refused to do so; that the whole levy of 50 cents on the $100 valuation is necessary and used for such current expenses.

In the trial below N. B. Wilkerson, Esq., former city attorney, was sworn as a witness in behalf of plaintiff, and testified that the year previous to the trial defendant completed a city hall at an expense of about $2,500, and bonded itself in the sum of $2,000 to pay for same; that the lower part of the hall is used for a store, and has been rented for five years at a monthly rental of $20; that the upstairs is rented for $75 per year. He testified that the above-named rentals were not involved in the mandamus of 1907; that the above rentals are derived wholly independent of said proceeding of 1907; that the bonds aforesaid provided for a sinking fund to pay off the same; that defendant passed an ordinance making the above rentals a part of said sinking fund. Witness testified that the expenses of the city officers,...