State v. Holder
| Decision Date | 17 May 1934 |
| Docket Number | 33404 |
| Parties | The State, Appellant, v. Earl Holder |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.
Affirmed.
Roy McKittrick, Attorney-General, and William W Barnes, Assistant Attorney-General, for appellant.
The information charges a violation of Section 4091, Revised Statutes 1929, in each count. State v. Clarkson, 59 Mo. 152; State v. Hays, 78 Mo. 607; State v Noland, 111 Mo. 485; State v. Carragin, 210 Mo. 368; State v. Diemer, 229 Mo. 324.
Rex V. McPherson and Robert Stemmons for respondent.
(1) Special road districts are of two types: The ordinary special road district is organized under the authority of Article 9, Section 8024, Revised Statutes 1929, and the other is known as the special benefit assessment plan, which is organized under Article 10, Section 8061, Revised Statutes 1929. The information in this case is fatally defective in that it does not allege whether the Buck Prairie Special Road District of Lawrence County is incorporated under the ordinary special road district plan or the special benefit assessment plan. The court cannot take judicial notice of the nature and character of the Buck Prairie Special Road District. State v. Cleveland, 80 Mo. 108. (2) Section 8031, Revised Statutes 1929, relates to ordinary special road districts and provides that the board shall serve without compensation but actual, necessary expenses, actually paid, shall be repaid to them. Section 8079, Revised Statutes 1929, relates to benefit assessment districts, provides that commissioners of road districts incorporated under this plan shall receive no compensation for their services but shall be paid any and all expenses that they may incur in transacting business of the district, including a reasonable attorney's fee. (3) Special road district is not, strictly speaking, a municipal corporation, but is a quasi public corporation. Brown v. Board of Education, City of Newport, 57 S.W. 612, 108 Ky. 783; Dixon County v. Railroad Co., 95 N.W. 340; Hellar v. Stremmel, 52 Mo. 309; D'Arcourt v. Little River Drainage Dist., 245 S.W. 394.
Westhues, C. Cooley and Fitzsimmons, CC., concur.
The State appealed, in this case, from an order of the Circuit Court of Lawrence County, Missouri, sustaining a demurrer to an information charging respondent in six separate counts with the violation of Sections 4090 and 4091, Revised Statutes 1929. Three of the counts are based on Section 4091 and three on Section 4090.
Count one, which is a sample, charging a violation of Section 4091 reads as follows:
"'James B. McGuffin, Prosecuting Attorney within and for the County of Lawrence in the State of Missouri upon his official oath of office informs the Court and charges that on or about the 24th day of September, 1932, at and within the County of Lawrence in the State of Missouri, one Earl Holder, then and there being a duly appointed, qualified and acting member of the Board of Commissioners of Buck Prairie Special Road District of Lawrence County, which said Board of Commissioners of the Buck Prairie Special Road District of Lawrence County was then and there charged with the administration and management of a fund of a public nature, to-wit: a fund of money raised by a levy of taxes on the property situate in Buck Prairie Special Road District of Lawrence County, Missouri, did then and there willfully, feloniously and knowingly aid and promote the appropriation, disbursement and disposition of said money, fund and property for a purpose not directed and warranted by law by then and there unlawfully and feloniously aiding and promoting the payment to himself the said Earl Holder of $ 51.50 for work and labor in repair work and construction work done by him the said Earl Holder on the roads of the said Buck Prairie Special Road District of Lawrence County and so the said $ 51.50, good and lawful money of the United States of the value of $ 51.50, the money and property of the said Buck Prairie Special Road District of Lawrence County then and there, he the said Earl Holder did then and there unlawfully and feloniously embezzle, make way with, convert to his own use and steal, take and carry away, against the peace and dignity of the State."
Section 4091, in so far as pertinent to the issues involved, reads as follows:
"If any member of any town or city council, or of any county court or commission or body charged with the administration or management of the affairs of any county, or any executive officer or member of any executive department of any city, town or county in this State, or any member of any board or commission charged with the administration or management of any charity or fund of a public nature, by whatever name the same may be called, shall knowingly and without authority of law vote for the appropriation, disposition or disbursement of any money or property belonging to any such city, town, county, charity or fund, or any subdivision of any such city, town or county, to any use or purpose other than the specific use or purpose for which the same was devised, appropriated and collected, or authorized to be collected by law, or shall knowingly aid, advise or promote the appropriation, disbursement or disposition of any such money or property, for any purpose not directed and warranted by law, and such illegal appropriation, disbursement or disposition be in fact effected, every person so offending against the provisions of this section shall be deemed and taken to have feloniously embezzled and converted to his own use such money or property."
Respondent contends that if all of the allegations of the first three counts of the information are considered as true they are not sufficient to charge an offense under this section.
It is a fundamental rule of law that statutes creating felonies are to be strictly construed and will not be enlarged by implication. [59 C. J. 1113, sec. 660; State v. Lloyd, 7 S.W.2d 344, l. c. 346 (4-6), 320 Mo. 236; State v. Dishman, 334 Mo. 874, 68 S.W.2d 797.]
The purpose of the statute Section 4091 seems to us to be plain. By it the Legislature has made it a felony for any officer, coming within its provisions, to appropriate, dispose of or disburse funds for any use or purpose other than the specific use or purpose for which the same was devised, etc. The information in this case specifically charges that respondent was a commissioner of a special road district; that he aided and promoted the payment of $ 51.50 to himself for work and labor he had performed in repair and construction work on the roads of the district of which he, respondent, was a commissioner. It was not charged that respondent did not perform the labor for which the claim was allowed or that the district did not receive full value therefor. The primary purpose for which money of a special road district is to be expended is for the upkeep of the roads of the district. The money was, therefore, appropriated and expended for the specific use intended by the law. In other words the facts alleged in the information disclose, without doubt, that the funds were not diverted from their proper channel. The diversion of funds was the evil sought to be remedied by the section in question.
Sections 8031 and 8079, Revised Statutes 1929,...
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