State v. Moeller

• Decision Date: 31 August 1871
• Parties: THE STATE OF MISSOURI ex rel., ETC., Respondent, v. CHARLES MOELLER et al., Appellants.
• Court: Missouri Supreme Court

48 Mo. 331

THE STATE OF MISSOURI ex rel., ETC., Respondent,

v.CHARLES MOELLER et al., Appellants.

Supreme Court of Missouri.

August Term, 1871.

Appeal from Carroll Circuit Court

Hall & Oliver, for appellants.

The words “all other moneys for school purposes,” in section 81 of the school law, cannot mean moneys arising from the sale of school lands. When the Legislature authorized the county clerks to collect fines and penalties, which amount at most to a few hundred dollars annually, it did not mean, by the addition of the words “other school moneys,” to authorize the clerks to collect the whole school fund, which in many counties amounts to tens of thousands of dollars. (1 Blackst. Com. 87, § 2.)

The words “fines, penalties, and all other moneys,” mean fines, penalties, and all other moneys of a like character. (Broom's Legal Max. 374 et seq.)

The construction contended for by plaintiff is in direct conflict with other statutes of the State. (2 Wagn. Stat. 1300, §§ 22, 23; id. 862, § 22; Gen. Stat. 1865, pp. 269-71, §§ 64-74.)

Ray & Ray, for respondent.

While it was made the duty of the county treasurer to receive all moneys belonging to the school fund, it was nowhere made his duty to become a collector of such funds. As a matter of fact, the clerks of the County Courts have the custody of the bonds and notes and mortgages for the school funds, arising from whatever source. County Courts have the care and management, by law, of the school funds, and under Gen. Stat. 1865, ch. 46, § 81, the county clerk is made the agent and executive officers of the court in the discharge of this duty. (Gen. Stat. 1865, ch. 46, p. 270, § 65; id. ch. 49, p. 283, § 6; id. ch. 48, p. 279, § 6; id. ch. 48, p. 280, §§ 16-18.) If the county treasurer is by law the custodian of these bonds and notes, and, of necessity, charged with the amount thereof, why is he again charged with any amount of money that may be paid in to him on these same bonds (under Gen. Stat. 1865, ch. 46, p. 271, § § 74-5) by the clerk of the County Court? and why is the clerk directed to credit the amount so paid in on the bonds and notes and mortgages, if the bonds and mortgages are not in his possession? All the policy of the law, in all its provisions, looks to the active agency of the county clerk in making the collection of these funds. (Gen. Stat. 1865, p. 231, § 41; id. 389, § 23; id. 269, § 49; id. 265, §§ 31-33.)

If these payments are unauthorized the debt remains unpaid, and the parties are liable to a second payment. If the law makes it his official duty to make these collections, the county clerk cannot escape responsibility by assuming to make the collections in the name or as the agent of another party.

BLISS, Judge, delivered the opinion of the court.

Defendant Moeller was charged with collecting, as clerk of the Carroll County Court, certain moneys belonging to the school fund of the county, to-wit: the proceeds of the sale of the swamp lands, of the sale of section 16, and money received under the stray act. This suit is upon his official bond, and his sureties claim in defense that it was no part of the clerk's official duty to collect such moneys, and consequently that they are not holden on the bond for their reimbursement.

Counsel for relator base the liability of defendant upon Gen. Stat. 1865, ch. 46, § 81; Wagn. Stat. 1259, § 79, which provides that “the said county clerk shall collect or cause to be collected the fines and penalties, and all other moneys for school purposes in his county, and pay the same over to the county treasurer on account of the school fund,” etc.

If this provision is construed to authorize the payment to the clerk of moneys arising from the swamp land and section 16 school fund, and from the sale of strays, it contradicts other provisions of the statute. Sections 22 and 23 of the stray act (Gen. Stat. 1865, ch. 83; Wagn. Stat. 1300) provide for payments “into the county treasury for the use of the school fund of such county.” Chapter 49 of the General Statutes provides for the sale or lease of section 16 for the use of the school fund, and section 22 (Wagn. Stat. 862) expressly requires that rents be paid into the county treasury, and that the treasurer shall give duplicate receipts therefor; so, when the township school fund is loaned, being the proceeds of section 16, the principal and interest when collected are payable into the county treasury, and the treasurer is required to give duplicate receipts, etc. (Wagn. Stat. 1257, § 72.) The act relating to county treasuries (Wagn. Stat. 410, § 7) provides that the treasurer shall receive all moneys payable into the treasury, and the...