The State ex rel. Wainwright-Steedman Special Road District v. Holman

• Decision Date: 27 August 1924
• Docket Number: 25191
• Parties: THE STATE ex rel. WAINWRIGHT-STEEDMAN SPECIAL ROAD DISTRICT, Appellant, v. E. C. HOLMAN et al., Judges of County Court, and J. W. RATEKIN, Treasurer of Callaway County
• Court: Missouri Supreme Court

264 S.W. 908

305 Mo. 195

THE STATE ex rel. WAINWRIGHT-STEEDMAN SPECIAL ROAD DISTRICT, Appellant, v. E. C. HOLMAN et al., Judges of County Court, and J. W. RATEKIN, Treasurer of Callaway County

No. 25191

Supreme Court of Missouri

August 27, 1924

Appeal from Callaway Circuit Court; Hon. David H. Harris Judge.

Affirmed.

Baker & Baker and Perry S. Rader for appellant.

(1) A special road district organized and incorporated under the provisions of Article VIII, Chapter 98, Revised Statutes 1919, is entitled to have set aside to and credited to it the net amount of the road taxes levied by the county court under Section 10682, and collected by the county collector from property in the special road district and paid by him into the county treasury. Sec. 10838, R. S. 1919; Carthage Special Rd. Dist. v. Ross, 270 Mo. 76; State ex rel Monett Special Road Dist. v. Barry County, 302 Mo. 279; Little Prairie Special Rd. Dist. v. Pemiscot Co., 297 Mo. 568. See also: State ex rel. Cameron Special Rd Dist. v. Everett, 245 Mo. 706; State ex rel. Moberly Special Rd. Dist. v. Burton, 266 Mo. 711; and Sec. 10818, R. S. 1919, in connection with Section 10838. (2) There is no conflict between Sections 10682 and 10838. Section 10682 makes no provision for the distribution of the taxes collected in pursuance to a levy made by authority thereof, but the distribution of all that part of said taxes collected from property in the special road district is controlled by Section 10838, which requires them to be set aside to and placed to the credit of such district. Section 10682 is authority for levying and collecting the taxes; Section 10838 is authority for the application of so much of the general road taxes as is collected from property in the district. The two sections, together with Sections 12866, 12975 and 12976, complement each other and round out a complete whole. State ex rel. Monett Special Road Dist. v. Barry County, 302 Mo. 279; Carthage Special Rd. Dist. v. Ross, 270 Mo. 76. (3) Section 36 of the Act of 1917, Laws 1917, p. 457, now Sec. 10682, R. S. 1919, did not expressly or impliedly repeal Section 10616 of the Act of 1913, Laws 1913, p. 681, now Sec. 10838, R. S. 1919. Repeals by implication are not favored. There is no irreconcilable conflict between Sections 10682 and 10838, but Section 10838, if there is any conflict at all, is an exception to the general provision of Section 10682 requiring general road taxes collected under the authority thereof to be placed to the credit of the Road and Bridge Fund, in that Section 10838 directs how road taxes collected from property in a special road district is to be applied, and Section 10682 either directs how all general road taxes collected from property lying outside of such special road district is to be applied or leaves it in the county Road and Bridge Fund to be distributed according to the directions of other statutes. McGrew v. Mo. Pac. Ry. Co., 177 Mo. 542; Manker v. Faulhaber, 94 Mo. 439; State ex rel. v. Walbridge, 119 Mo. 389; State ex rel. Philpot v. Ry. Co., 296 Mo. 525; State ex rel. Buchanan County v. Fulks, 296 Mo. 626.

W. B. Whitlow and N. T. Cave for respondents.

(1) The taxes levied and collected under Section 10682 must go into "the county road and bridge fund." Sec. 10682, R. S. 1919. (2) Section 10682 repeals by implication the provisions of Section 10838, which relates to where the taxes levied and collected under Section 10682 shall go. (3) The road district or its commissioners would not get the 1922 taxes, because before the road district incorporated the court had appointed road overseers in the districts comprising all of this special district, and the road overseers had qualified and given bond and had begun their work before this district was incorporated; and for the further reason that the levy made by the county court was made after the appointment of the road overseers and before the incorporation of the district, and for that year, 1922, the money would go to the districts which were in existence at the time of the levy, which in this case, would have been to the road overseer district. (4) The commissioners could not claim the taxes for 1922, because those appointed at the time of the organization of the district did not qualify and organize as required by Secs. 10835 and 10836, R. S. 1919. (5) They cannot recover because they sat by and permitted the county court and the road overseers to do the work within the district and to expend all of the money except $ 420.01, which amount has been delivered to them, and had been at the time of the trial. (6) They cannot recover in this case because they permitted the road overseers and the county court to spend all of the taxes except the $ 420.01, above referred to, and there is no part of the road taxes for 1922 left with which to pay the amount appellant now claims.

OPINION

James T. Blair, P. J.

In 1923 appellant instituted in the Callaway Circuit Court a proceeding by mandamus to compel the judges of the county court and the county treasurer to transfer to the credit of relator certain revenue derived from road taxes of 1922. The court ordered part of the funds transferred to relator, and refused to make such an order as to others. Relator appealed.

Appellant, hereinafter called relator, is a special road district, organized under Article VIII, Chapter 98, Revised Statutes 1919, and the road taxes claimed are those regularly levied on property in the district under Sections 10682 and 10683, Revised Statutes 1919, for the year 1922. The amount of taxes levied under Section 10682 was $ 1549.63, and under Section 10683 was $ 3615.78.

The alternative writ alleges the incorporation of relator and the official character of respondents; that it was the duty of the county court to make levies under Sections 10838, 10682 and 10683, and that at its May, 1922, term, the county court, under Sections 10682 and 10683, levied on property within relator district taxes aggregating $ 5165.41 of which, after deducting collector's commissions, the sum of $ 5113.76 was required to be credited to relator district, subject to its warrant; that relator "made its demand prior to the time any of said money was drawn out or paid out by any of respondents;" that there is "no adequate remedy at law;" and prays that a peremptory writ be awarded commanding respondents to place to relator's credit $ 5113.76, "or such sum as this court may find may be due this petitioner for the causes and the reasons hereinbefore set out, and for such other," etc.

The return consists, first, of a general denial. It then (1) admits the official character of the county court judges; (2) denies relator is a duly organized road district, and avers "relator has never organized said district and that the same is not now a duly organized" district. It avers (3) that under Section 10838 the county court levied five cents on the $ 100 valuation on property in the district, in the total sum of $ 1549.63, and eleven and two-thirds cents on the $ 100 valuation on the same property under Section 10683, in the total sum of $ 3615.78; that collector's commissions of $ 90.38 reduced the aggregate to $ 5075.03; (4) that prior to February 1, 1922, respondents entered into contracts "with the road overseers in the Wainwright-Steedman Special District and in other parts of Callaway County for all of its anticipated road funds available, February 1, 1923," and that "respondents have expended all of said moneys collected for road work which had been contracted for long prior to the incorporation of relator . . . and that said money having been expended and contracted for as provided by law" respondents had no money, authorized to be turned over to relator, until after February 1, 1923; (5) substantially the same facts as in (4) are then set up "by way of counterclaim;" and, in that connection, it is also averred the county had no road funds available to pay out on the contracts of February 1, 1922, with the road overseers, except the anticipated income from the taxes of 1922, and that of the taxes collected under the five-cent levy all were paid out on those contracts except $ 125.41, which sum has been credited to relator. (6) It is then averred that out of the levy of eleven and two-thirds cents $ 803.32 were expended on road and bridge work within relator's territory, and credit is asked for that amount. It is averred (7) there are delinquent taxes, for which credit is asked. (8) It is then denied that any demand was ever made by relator for any of the money in question until after the whole amount collected had been expended, and averred that no demand was ever made until February, 1923, after settlement had been made with some of the owners "who worked territory within the confines of the said special road district." (9) The return proceeds: "Respondents further state that under the law they were entitled to spend their anticipated revenue within one year from the date contracts were entered into, and that the said respondents did enter into contracts and agreements and performed work in anticipation of their taxes available in February, 1923; and in truth and fact respondents have no money which legally belongs to said special road district." (10) It is then averred that relator did no road work during 1922 "and perfomed none of the functions of a special road district and is not legally entitled to the money asked for at this time." (11) It is finally averred that "there is now on hand no money available for the warrants demanded by the relator and no money available in the hands of the Treasurer of Callaway County out of which the warrants aforesaid can legally be paid if issued."

The reply admits the facts stated in paragraphs (1), (3) and (7) of the return...