The State ex rel. Hopper v. Cottengin

• Decision Date: 18 February 1903
• Parties: THE STATE ex rel. HOPPER, Appellant, v. COTTENGIN et al
• Court: Missouri Supreme Court

72 S.W. 498

172 Mo. 129

THE STATE ex rel. HOPPER, Appellant, v. COTTENGIN et al

Supreme Court of Missouri, First Division

February 18, 1903

Appeal from Wright Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

L. O Neider and Thos. H. Musick for appellant.

(1) Showing available funds in treasury makes a prima facie case and relator is entitled to payment of judgment. State ex rel. v. Mayor, 58 Mo.App. 124; State ex rel. v Treasurer, 43 Mo. 228. (2) Funds in treasury unappropriated to any legal purpose are available to pay this judgment. State ex rel. v. Mayor, supra; State ex rel. v. Craig, 69 Mo. 565; State ex rel. v. Treasurer, supra. (3) The funds collected for sinking fund and interest on courthouse bonds are not appropriated to any legal purpose because the bonds and coupons are illegal and void, being a debt made in excess of the constitutional limit. Secs. 11 and 12, art. 10, Constitution; R. S. 1889, secs. 3134, 3166, 7663, 7664, 7665; Book v. Earl, 87 Mo. 246; Andrew Co. ex rel. v. Schell, 135 Mo. 31; Wilson v. Knox Co., 132 Mo. 387; Barnard v. Knox Co., 105 Mo. 382; State ex rel. v. Railroad, 87 Mo. 236. (4) It being shown in evidence that the sum of $ 2,352.32 has been set apart by the county court to pay interest and debt on said courthouse bonds that sum is therefore unappropriated to any legal and legitimate purpose. This fund is therefore available for relator's judgment. State ex rel. v. Railroad, supra. (5) The county court had no power to collect these taxes for the purpose of paying courthouse bonds without compliance with sections 7653 and 7654, Revised Statutes 1899, and it can not pay them out for any purpose for which it could not collect them. State ex rel. v. Railroad, supra; State ex rel. v. Shortridge, 56 Mo. 126; State ex rel. v. Hager, 91 Mo. 452. (6) The returns admit $ 1,132 of this money in the treasury. The defendant treasurer testifies that there is $ 1,162.95 of these funds in the county depositary, and the county clerk testifies that there are $ 770 of the funds loaned out, so there can be no question of a sufficiency of funds set apart to pay this illegal debt, to meet this judgment. The funds being in hand, it is the duty of the treasurer to pay it. State ex rel. v. Treasurer, supra; School Dist. v. Lauderbaugh, 80 Mo. 190; State ex rel. v. Justices Bollinger Co. Court, 48 Mo. 475. (7) The fact that the county court had power to levy the five cents as a part of the ordinary county revenue, and that they failed to apportion it as such, gave them no power to set it apart to pay the illegal courthouse debt. State ex rel. v. Macon County Court, 68 Mo. 29.

W. S. Pope for respondents.

Relator was not entitled to a writ against the county treasurer. Section 3165, Revised Statutes 1889, provides that he can only disburse money on warrants drawn by order of the county court. Inasmuch as no warrant was drawn upon him for this money, he could not be compelled to pay. There was no demand upon the county court for payment of the judgment out of the fund mentioned before the institution of the suit, and before the mandamus could properly issue there must have been a demand and refusal. 2 Dillon on Municipal Corporations (4 Ed.), sec. 866. The judges plead no demand on them, and no refusal. Chicago v. Sansum, 87 Ill. 182; Alexander v. Comm'rs, 67 N.C. 330; State v. York Sch. Dist., 8 Neb. 92; State v. Ramsay, 8 Neb. 286; Tapping on Mandamus, 282-3-4-5; Angell & Ames on Corpor. (11 Ed.), sec. 707, p. 761; Railroad v. Plumas Co., 37 Cal. 354. The writ was made returnable immediately, and defendants answered on the same day that it was issued and served, and it was a good defense on the part of the county court that the court would not be in session until the first Monday in August, next, and they could not, if they so desired, comply with the demands made in the writ. The circuit court could not in this suit adjudicate as to the validity of the bonds outstanding, and for the payment of which the money in the treasury was levied and appropriated. Mandamus will not issue, except where the party applying for it has a clear and undoubted right to the relief prayed for. It will not issue in doubtful cases. Dillon on Municipal Corporations (4 Ed.), sec. 287. The peremptory writ must conform strictly to the alternative. The trial court had only a right to grant the same relief demanded by the alternative writ. It could not grant a peremptory writ for a part only of the relief prayed. Millet v. Field, 37 Mo.App. 101; State ex rel. v. Railroad, 77 Mo. 147; School District v. Lauderbaugh, 80 Mo. 190; State ex rel. v. Seibert, 130 Mo. 202; Chance v. Temple, 1 Iowa 473. Upon the whole record before the court the relator is not entitled to a reversal or peremptory writ. Bell v. Pike County Court, 61 Mo.App. 173; State ex rel. v. St. Louis Circuit Court, 1 Mo.App. 543; State ex rel. v. Everett, 52 Mo. 89; Hambleton v. Town of Dexter, 89 Mo. 188; State ex rel. v. Governor, 39 Mo. 388; State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Burkhardt, 59 Mo. 75; State ex rel. v. Trustees of Pacific, 61 Mo. 155; State ex rel. v. Hudson, 13 Mo.App. 61; State ex rel. v. Ray County Court, 52 Mo. 27; State ex rel. v. Williams, 96 Mo. 13; State ex rel. v. Holliday, 65 Mo. 76; State ex rel. v. Schmidt, 36 Mo.App. 550; State ex rel. v. Davis, 54 Mo.App. 447; State ex rel. v. Joplin Waterworks, 52 Mo.App. 312.

OPINION

BRACE, P. J.

On September 16, 1898, the relator obtained judgment against Wright county for the sum of $ 1,776.45, and on May 30, 1899, instituted this proceeding by mandamus in the circuit court of said county to compel the respondents, who are the judges of the county court and the treasurer of said county, the former to order payment of said judgment and draw a warrant on the county treasurer therefor, and the latter to pay the same out of a fund in said treasury derived as follows:

At the May term, 1897, of said county court, and on May 7, 1897, the following order was made by said court:

"Whereas the courthouse situated at Hartville, the county seat of Wright county in the State of Missouri, was destroyed by fire, and the said county of Wright has no courthouse, and it is necessary for the transaction of public business to erect a courthouse forth-with and the said county of Wright has no means with which to erect the same but by an issue of county bonds, and

"Whereas, the said county of Wright has no bonded indebtedness and the bonded indebtedness hereafter to be issued under the provision of our statutes authorizing the erection of a courthouse, will not equal five per cent of the assessed valuation of the real and personal property, in said county of Wright;

"Therefore it is ordered by the county court of the said county of Wright, that county bonds, of the said county of Wright, in the sum of $ 10,000, be issued under and in pursuit of the provisions of sections 3107, Revised Statutes of Missouri for 1889, for the purpose of rebuilding a courthouse at Hartville, the county seat of said county of Wright, said bonds to be of the denomination of $ 500 each, and numbered from one to twenty, both inclusive, payable in fifteen years from July 1, 1897, bearing six per cent interest per annum payable annually, principal and interest payable in lawful money of the United States, at the office of the county treasurer of said county of Wright, interest to be evidenced by coupons thereto attached numbered seriatim from one to fifteen, both inclusive; said bonds shall be signed by the president of the county court, countersigned by the county clerk with the seal of his office affixed and shall have printed on the back thereof, a copy of the order of the county court under which said bonds were issued, and the coupons thereto attached to be countersigned by the county treasurer. It is therefore...