State v. Nelson
| Decision Date | 07 October 1925 |
| Docket Number | No. 25231.,25231. |
| Citation | 275 S.W. 927 |
| Parties | STATE ex rel. NOLEN et al. v. NELSON, Treasurer. |
| Court | Missouri Supreme Court |
Dumm & Cook, of Jefferson City, and Oliver W. Nolen, of Paris, for relators.
Dubois & Miller, of Grant City, A. F. Harvey, of Maryville, and Henry Davis, of Fredericktown, for respondent.
Original action in mandamus. Relators were engaged in all kinds of drainage work. The case here stands upon the petition for our writ (to be taken as and for the alternative writ), and demurrer to the return which in effect is a motion for judgment on the pleadings. As indicated by the style of the case, relators were doing business under the firm name of Capital Reclamation Company. They received from the Andrew-Nodaway drainage district of Nodaway county, for engineering work, surveying, and expenses three several warrants, aggregating $1,446.97. These warrants were dated respectively on March 9, 1920, March 9, 1920, and February 10, 1921, were in the order above for $500, $500, and $446.92, aggregating the total above named. These warrants were "by order of the board of supervisors of Andrew-Nodaway drainage district, Nodaway county, Mo.," and Were duly signed by the president of the board of supervisors, and attested by its secretary. They were drawn on the "treasurer of Andrew-Nodaway drainage district." On the date of their issue, each warrant was presented for payment, but were protested in a memorandum in this language:
The foregoing is from one of the warrants, and it suffices to say the other two were of the same tenor. It is alleged and not denied that later there were funds in the treasury of said district out of which such warrants could have been paid, but the payment thereof was refused. There were funds in the treasury with which to pay the warrants at the institution of this suit.
Our alternative writ was ordered, but by agreement the petition for the writ was taken as and for the writ. The return is of some length, and we will note the questions raised in so far as required in the course of the opinion. The purpose of the suit is to compel the payment of these warrants.
I. The first contention is that we should not further assume jurisdiction of this case because it is a case which could have been tried by the circuit court, or some lower court, and that under our rule 32 this court should not have ordered the alternative writ. Under the Constitution this court has original jurisdiction in mandamus cases. This issuance of such writ is always discretionary, but, when once issued, we have most generally followed the case to the end.
In the case of State ex rel. Orr v. Latshaw, 291 Mo. loc. cit. 600, 237 S. W. 770, 772, this court in banc has well said:
But the writ was originally well merited in this case, because of a public interest involved in statutes not as yet construed by this court. Section 4579, R. S. 1919, provides:
"The law of this state, under which county warrants are issued, sold, transferred, assigned, presented for payment, and paid, shall apply to all warrants issued by any drainage or levee districts in Missouri organized under any existing, special or future law of this state."
In addition, section 4580, R. S. 1919, says:
"The performance of all duties prescribed in any existing or future law of this state governing the organization and administration of drainage or levee districts may be enforced by mandamus at the instance of any person or corporation interested in any way in any such district."
When we say that the statutes have not been construed, we mean as applied to a proceeding in mandamus to compel the payment of a warrant issued by a drainage district.
There are therefore two good reasons for denying this contention of the respondent, and for passing upon the law of the case in respect to the merits of the case. This contention is ruled against the respondent.
II. The two sections of statutes (sections 4579 and 4580, R. S. 1919), came into the body of our statutory laws by the act of 1913. Laws of 1913, p. 321. The evident purpose of these two sections is to place the drainage district warrant upon the same plane as the county warrants, and to make the law of the state then applicable to county warrants likewise applicable to drainage district warrants. The status of such warrants having been made by these statutes the same as county warrants, the rights of the parties in this case must be determined as if the warrants were county warrants. Per the force of these statutes we must apply the governing law as to county warrants. By the latter section mandamus is specifically given as a remedy to enforce rights either growing out of the organization or administration of the drainage district.
There is an exceedingly long return in this case (some portions of which call for further notice), but there is no charge that fraud was used in the procurement of the warrants. Some warrants issued to relators were paid in the usual course, and the warrants herein involved were simply protested for want of funds, a very usual thing for county warrants. An important question is to determine the status of a county warrant, where there has been no actual fraud practiced in the very procurement of the warrant. Of this question next.
III. Under the statutes quoted, supra, the treasurer of the drainage district (who is respondent herein) occupies a position similar in all respects to a county treasurer in respect to warrants drawn upon funds in his hands. The status of a county treasury has been firmly fixed by rulings of this court. In a mandamus proceeding, originating in our court in banc, entitled State ex rel. v. Adams, 161 Mo. loc. cit. 364, 61 S. W. 894, 897, we said:
In the foregoing case the county court had directed the issuance of a warrant for $3,900 to the relator therein, and such warrant was issued, directing the county treasurer to pay the relator in that action such warrant. A refusal to pay occasioned the mandamus proceeding here, which proceeding resulted in our peremptory writ being granted. In that case, like the one at bar, there was a long return pleading (or, better stated, attempting to plead) a contract between the relator there and the county. The result of our ruling was that the county court had the legal power to issue the warrant, and that it was therefore the duty of the treasurer to pay, and if he did not pay, he would be compelled to pay by mandamus. Of course we might have (a question we do not decide here) a different case if the county court had no legal authority to issue the warrant. In the instant case, the warrants were ordered by the drainage district board, which, under the statutes we have quoted, occupies the same relation to the drainage district as the county court does to the county.
In State ex rel. Thomas v. Treasurer of Callaway County, 43 Mo. 222, cited, supra, in State ex rel. v. Adams, the county court, after auditing a claim and ordering the warrant (later involved in the mandamus case here), ordered the treasurer not to pay the full amount of the warrant, and made a new order for a lesser amount. This court, however, ruled that the claim filed was a legal demand, and one which the county court had the power to allow, and, having once been allowed by it and the warrant issued upon the county treasurer for its payment, mandamus would lie to compel the treasurer to pay such warrant. We made our writ peremptory in that case involving $413.70.
Sherwood, J., in State ex rel. Jordon v. Haynes, 72 Mo. loc. cit. 378, thus tersely states the rule:
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