State v. Trammel

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Black
• Citation: 17 S.W. 502,106 Mo. 510
• Parties: STATE ex rel. HUDSON v. TRAMMEL, County Treasurer.
• Decision Date: 09 November 1891

17 S.W. 502 106 Mo. 510 STATE ex rel. HUDSON
v.
TRAMMEL, County Treasurer. Supreme Court of Missouri, Division No. 1. November 9, 1891.

COUNTIES — RAILROAD AID BONDS — PAYMENT — RESJUDICATA — PROCEDURE IN MANDAMUS — RETURN.

1. Gen. St. Mo. 1865, pp. 338, 339, §§ 17, 21, provide that counties, with the assent of two-thirds of the voters, shall have the right to subscribe to the stock of railroad companies, whether incorporated under the general law or some special act. It is also made the duty of the county court to levy a special tax to pay the subscription or the bonds issued therefor. The bonds in question were issued under Act Feb. 20, 1865, incorporating the M. & M. R. Co., and authorizing the levy of a "tax to pay the same not exceeding one-twentieth of one per cent." Held, that such bonds could be paid only out of the special tax provided for them, and not out of the general revenues of the county. 11 S. W. Rep. 747, affirmed. SHERWOOD, P. J., dissenting.

2. A judgment in mandamus from the United States circuit court, directing the county court to issue warrants for such bonds payable out of the general revenues of the county, must be taken as an adjudication of the status of said bonds by a court of competent jurisdiction, and is not reviewable in a state court. 11 S. W. Rep. 747, reversed. SHERWOOD, P. J., dissenting.

3. A denial on information and belief in a return to an alternative writ of mandamus is not sufficient, but such denial should be direct and positive; and so, too, the averment of matters in avoidance should be direct and positive.

On rehearing.

BLACK, J.

This was a petition in the circuit court for a mandamus against the defendant, Trammel, who is treasurer of Macon county, to compel him to pay a warrant for $10 held by Hudson, the relator. Trammel appealed from a judgment awarding a peremptory writ. This proceeding was commenced in April, 1886, and determined in May of same year. It is admitted that the relator presented his warrant for payment to the respondent treasurer in April, 1886, which payment was refused, and that it was properly drawn upon the "contingent fund." There were then sufficient funds in the treasury to the credit of that fund to pay the warrant. It is alleged in the return made by the treasurer to the alternative writ that the contingent fund is a part of the ordinary revenue of the county, arising from the levy of 30 cents on the $100 valuation, the other 20 of the 50 cents allowed by law belonging to the townships, the county being under township organization; that on the 29th April, 1884, there was registered against "the said ordinary and general funds and revenues" 15 other warrants to pay judgments rendered against Macon county by the circuit court of the United States, "which said warrants were issued, as respondent believes and is informed, by the county court of Macon county, in obedience to peremptory writs of mandamus issued from said circuit court of the United States." The names of the payees, and the amounts of their warrants, are set out, aggregating about $183,000, with the averment that they remain unpaid, and exceed in amount all the moneys and funds in the treasury. For further return, it is alleged that five of the said judgment warrant holders, whose warrants amount to some $60,000, obtained alternative writs of mandamus from the United States circuit court, directing the justices of the county court and the then treasurer to issue the warrant "on the general fund," and commanding the treasurer to register and pay the same in the order of registration "out of the general funds and revenues" then in and thereafter to come into the treasury; that the five warrants were issued and registered pursuant to such command; that the treasurer made return to each of said alternative writs, and issues were made up, the chief of which was whether the relators in said writs were entitled to have the money then raised, and thereafter to be raised, from the levy of 30 cents on the $100 valuation, applied to the payment of their warrants, in priority to and exclusion of warrants issued for ordinary county expenses; that the respondent in this case became a party respondent to

17 S.W. 503

those proceedings upon his accession to office. For a further return it is averred that another of said judgment warrants for $35,667 was issued to one Huidekoper, in obedience to a peremptory writ of mandamus from the United States circuit court; that said court in that proceeding, and in November, 1885, ordered the county treasurer to return an account of moneys collected and arising from the levy of 50 cents on the $100 valuation since the registration of that warrant, up to and including the 31st day of December, 1885; that the treasurer made return, and thereupon the relator in that case made the claim that the whole of the money collected and reported should be applied to the payment of his warrant; that the issues thus made remain undecided. There is the further general averment that all of the foregoing mandamus proceedings are still pending in the United States circuit court. The relator in his reply admits that the judgment warrants set up in the return were issued and registered as therein alleged, "but says they were issued to pay an indebtedness of said county other than the usual, ordinary, and necessary running expenses of said Macon county, to-wit, to pay judgments rendered on bonds and coupons subscribed by said county to the Missouri & Mississippi Railroad, and are only entitled to have paid on them any surplus remaining in the treasury after the ordinary expenses of the county are first paid." The evidence produced, it is conceded, shows that there was at the date of this trial some $17,000 in the county treasury; that $3,000 of that amount had reached the treasury since the last return made to...