State v. Palmer, 26957.
| Decision Date | 21 May 1946 |
| Docket Number | No. 26957.,26957. |
| Citation | 194 S.W.2d 736 |
| Parties | STATE ex rel. GINGER v. PALMER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Madison County; Norwin D. Houser, Judge.
"Not to be reported in State Reports."
Action by the State of Missouri at the relation and to the use of W. W. Ginger, assignee, against Eldon W. Palmer, county clerk of Butler County, and the Fidelity & Deposit Company of Maryland, surety on his official bond, to recover the amount of certain warrants. Judgment for plaintiff, for the nominal sum of $1, and plaintiff appeals.
Case transferred to the Supreme Court.
Tedrick & Tedrick and Cope & Ponder, all of Poplar Bluff, for appellant.
Bloodworth & Bloodworth, of Poplar Bluff, for Eldon W. Palmer.
Herbert E. Barnard and Leahy & Leahy, all of St. Louis, for Fidelity & Deposit Company of Maryland.
BENNICK, Commissioner.
This is an action in seven counts in the name of the State of Missouri at the relation and to the use of one W. W. Ginger against Eldon W. Palmer, the county clerk of Butler County, and Fidelity and Deposit Company of Maryland, the surety on his official bond.
The alleged breach charged in the petition is Palmer's participation in the issuance of seven county warrants for the aggregate amount of $2,254.47 to be paid out of the county road fund, each warrant being in excess of and above the amount of the anticipated revenue for the current year of 1940, and in excess of and in addition to the county budget for such year as theretofore approved and then on file.
The warrants were issued to certain parties for supplies furnished Butler County during 1940, and were thereafter assigned to Ginger for value. Judgment was prayed for the face amount of the warrants, together with interest from the several dates when the warrants were protested for nonpayment by the county treasurer.
The defense set up by defendant Palmer in his separate answer was that the County Court of Butler County had ordered and directed the issuance of the warrants in payment of allowed claims, and that he had merely issued the warrants in his clerical capacity pursuant to the order of the court.
The defendant surety company, in its separate answer, likewise alleged that there had been no breach of the bond for the reason that Palmer had issued the warrants in response to the direction of the court.
It then alleged that at the time the supplies for which the warrants were issued were sold to Butler County, there were no funds available to pay for the same in that year; that plaintiff's assignors, to whom the warrants were issued, were chargeable with knowledge of the condition of the county treasury, and with knowledge that if there were no funds available, they were not entitled to payment for their supplies; that plaintiff, as assignee, was likewise chargeable with knowledge of all such facts; and that the issuance of the warrants under such circumstances did not contribute to plaintiff's loss, and for that reason did not constitute a breach of Palmer's official bond.
Originating in the Circuit Court of Butler County, the case was sent on change of venue to the Circuit Court of Madison County, wherein the case was tried to the court alone upon an agreed statement of facts.
Butler County being a county of less than 50,000 inhabitants, the applicable provisions of the County Budget Law are Sections 10910 to 10917, inclusive, R.S.Mo.1939. As already indicated, the seven warrants in question were issued in 1940, so that in determining the disputed point of whether they were issued contrary to the provisions of the county budget law, such law must be taken as it read in 1940 at the time the warrants were issued. It appears in such form in the Revised Statutes of 1939, which were compiled after the enactment in 1937 (Laws 1937, p. 422) of two new sections (10911 and 10914) in lieu of the two corresponding sections of the law as originally enacted in 1933 (Laws 1933, p. 340), and before the further change in the same two sections in 1941 (Laws 1941, p. 650). In using the Missouri Revised Statutes Annotated, it is to be borne in mind that Sections 10911 and 10914 appear as enacted in 1941, and are therefore inapplicable to the present case to the extent of the changes made in such two sections as enacted in 1937. It is of interest to note, however, that the changes effected in 1941 were to make specific requirement for the classification of proposed and estimated expenditures out of county road funds, the very thing in controversy in this proceeding under the law as it read in 1940.
It was agreed that in making up the budget for 1940, the county court made no budget of the estimated receipts and expenditures in connection with the county road fund for that year; that plaintiff's several assignors sold the county certain road supplies in the concluding portion of the year after the revenue in the road fund was exhausted; that the county court, after the allowance of the claims for such supplies, ordered the issuance of the warrants in question in payment therefor; and that Palmer, the county clerk, thereafter issued the warrants to the several parties, by whom the same were thereupon assigned to plaintiff for value.
This action is based upon the concluding paragraph of Section 10917, supra, which reads as follows: "Any order of the county court of any county authorizing and/or directing the issuance of any warrant contrary to any provision of this law shall be void and of no binding force or effect; and any county clerk, county treasurer, or other officer, participating in the issuance or payment of any such warrant shall be liable therefor upon his official bond."
At the time of its entry of judgment in the case, the lower court filed a memorandum opinion containing a statement of the grounds for its decision and the method of determining the damages awarded.
The court first noted the issues in the case growing out of the contentions of the respective parties.
The ultimate question in the case was whether it had been the duty of the county court, as the County Budget Law had read in 1940, to make a budget of the estimated receipts and expenditures in connection with the county road fund for that...
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Pullum v. Consolidated School Dist. No. 5, Stoddard County
... ... said warrants. Wilson v. Knox County, 34 S.W. 477, ... 132 Mo. 387; State ex rel. Frazer v. Holt County ... Court, 37 S.W. 521, 135 Mo. 533; Secs. 10400, 10470, ... 13835, ... Article V, Constitution of 1945. Examine and compare ... State ex rel. Ginger v. Palmer, Mo. App., 194 S.W ... 2d 736, case transferred, and reviewed by this court, 198 ... S.W. 2d 10 ... ...
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Pullum v. Consolidated School Dist. No. 5
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