The State ex rel. Monett Special Road District v. Barry County
| Decision Date | 22 January 1924 |
| Docket Number | 24049 |
| Citation | 258 S.W. 710,302 Mo. 279 |
| Parties | THE STATE ex rel. MONETT SPECIAL ROAD DISTRICT, Appellant, v. BARRY COUNTY and A. J. CLEVENGER et al., Judges of Barry County Court |
| Court | Missouri Supreme Court |
Appeal from Barry Circuit Court; Hon. Charles L. Henson Judge.
Reversed (with directions).
J T. Burgess, T. D. Steele, J. E. Sater and A. E Spencer for appellant.
(1) The fund for which relator seeks an order of payment to it was levied, according to the allegations of the return, under and by virtue of the provisions of Section 10683, Revised Statutes 1919. The fund in controversy, $ 2834.75, is admitted to be the part or portion of the tax which arose from and was collected and paid upon property lying and being within the special road district, the relator. Section 10683 fixes the right of relator to this fund. (2) Under the allegations of the return, the fund paid to the relator, $ 4252.11, is admitted to be that part or portion of the tax of fifteen cents on the hundred dollars valuation, levied under and by virtue of the provisions of Section 10682, which arose and was collected and paid upon property lying and being within the special road district of relator. This was properly paid to the relator. Sec. 10682, R. S. 1919; State ex rel. Moberly Special Road Dist. v. Burton, 283 Mo. 41, 222 S.W. 844. Also because relator, as a special road district, was entitled thereto under Section 10818, which specifically provides that in counties where a special road district has been organized, and money collected as county taxes for road purposes, or road and bridge purposes, upon property within such district, the county court shall, as such taxes are collected, apportion and set aside to the credit of such special road district from which such taxes were collected, all such taxes so arising from and collected and paid upon any property lying and being within such special road district, and shall, upon written application of the commissioners of such special road district, draw warrants upon the county treasurer, payable to the commissioners of such special road district, or the treasury thereof, for all that part or portion of said taxes so collected upon property lying and being within such special road district. (3) It is admitted that relator is a special road district organized under the provisions of Section 10800, and that the fund in question is the product of such a levy by the county court and the collection of such tax on property lying and being within such special road district. Article VII, Chap. 98, R. S. 1919, of which said Sections 10800 and 10818 form a part, is a special law, dealing specifically and only with the special road districts therein authorized. Sections 10682 and 10683 are a part of Article III of said Chapter 98, dealing generally with the maintenance of public roads, and the duties of sundry officers relating thereto. The two sections are general laws, affecting the levy of road and bridge taxes in all counties in the State, within the defined limits as to population, without regard to whether special road districts have been organized in the county. Section 10682 merely fixes the maximum and minimum rate of levy for road purposes, and required the county court of every county, having the specified population, to levy the same each year. This section, considered alone, makes no provision for the application of this fund after it reaches the county treasury. Section 10818 is complementary thereto, and provides that in cases like the present, where a special road district is organized in the county, all of such tax collected on property within the special road district shall be paid to such special road district. The two statutes are entirely consistent, and taken together form a complete plan for raising and disbursing the fund provided by Section 10682. (4) To deny the application of Section 10818 to this case, the court must hold that it was, by implication, repealed or limited by Section 10682. As the two sections are entirely consistent and harmonious, such holding would be contrary to the unbroken rule laid down by the courts of this State. State ex inf. v. Amick, 247 Mo. 271; Ruschenburg v. Railroad Co., 161 Mo. 70; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Stratton, 136 Mo. 423; State ex rel. v. Spencer, 164 Mo. 48; Huntsville v. Eatherton, 182 S.W. 767.
Sizer & Gardner for respondents.
(1) Taxes collected under Section 10682, the mandatory statute, being a permanent general road fund of the county, should be distributed to the various road districts of the county, including special road districts, upon application therefor. Carthage Special Road Dist. v. Ross, 270 Mo. 76; State ex rel. Road Dist. v. Burton, 283 Mo. 41; Little Prairie Special Road Dist. v. Pemiscot Co., 249 S.W. 599. (2) Taxes levied and collected under and in pursuance to Section 10683, declaratory of Section 22, Article X, of the Constitution, is a special road tax, to be expended by the county, and not by the road districts. State ex rel. v. Everett, 245 Mo. 706; Carthage Special Road Dist. v. Ross, 270 Mo. 76; State ex rel. Road Dist. v. Burton, 283 Mo. 41. (3) The Constitution having placed in the county court the discretion to levy and expend such special tax, the Legislature is powerless to provide for its expenditure by any other agency. State ex rel. v. Burton, 283 Mo. 41. (4) The order of the county court made on November 11, 1922, was not and does not purport to be the exercise of a discretion in expending the funds in question, but simply undertakes to provide for an arbitrary appropriation and distribution of these funds which, if carried out, would have had the effect of placing the expenditure of the money in the discretion of the various road districts, and not the county court. This, the county court was unauthorized to do. State ex rel. v. Dyer, 183 Mo.App. 481; State ex rel. v. Board, 188 Mo.App. 269; State ex rel. Adamson v. Lafayette Co. Court, 41 Mo. 226; State ex rel. v. Adcock, 206 Mo. 556; School Dist. v. Richards, 205 P. 208; Rothrock v. Carr, 55 Ind. 334.
In 1921 the County Court of Barry County levied a tax of fifteen cents on the one hundred dollar valuation, under Section 10682, Revised Statutes 1919, for the "county road and bridge fund," and also a tax of ten cents on the one hundred dollar valuation, under Section 10683, Revised Statutes 1919, for "the special road and bridge fund." The tax which was collected and paid upon property in relator's district under the first levy amounted to $ 4242.11; this sum was promptly paid to relator on demand. The portion of the tax which arose from property in relator's territory under the second levy amounted to $ 2834.74. This sum the county court refused to pay to relator although its commissioners duly applied therefor in writing. Thereupon relator instituted this proceeding in mandamus to compel such payment.
The respondents, the judges of the County Court of Barry County, in their return to the alternative writ, admitted the allegations of fact on which it was based, but averred that the county court was entitled to the proceeds of one of the levies, for expenditure under its direction for the proper upkeep of the roads and bridges of Barry County, because there was no other fund available for the use of the court in the discharge of the duties imposed upon it by law in that behalf. The return then continued as follows:
"These respondents allege that in the disbursement of the fund arising under Sections 10682 and 10683 they are in doubt as to which of said funds should be paid to said special road district and which retained to be expended by themselves, but they specifically aver that all of the funds arising under one of said sections, and they are advised that all of the funds arising under Section 10683, must be spent by these relators for the benefit of all the roads and highways of Barry County, and they further allege that being in doubt as to which of said funds the relators may be entitled to and being in doubt as to whether the relators are entitled to the fund which has already been paid, to-wit, $ 4252.11, arising under Section 10682 and as to whether such payment was inadvertently and inadvisedly, or rightfully, paid by the county treasurer to said relator, pray that this court construe said Sections 10682 and 10683 and if this court in the construction of said sections shall determine that the said sum of $ 4252.11 was inadvertently and inadvisedly paid to the said relator that this court permit these respondents to set off and that this court adjudge that such sum so paid as aforesaid up to the amount to which said relator is entitled under the levy provided for by Section 10683 be adjudged to be a payment thereof, of the fund collected under Section 10683, to-wit, to the sum of $ 2834.74, and if the court in its construction of said sections shall determine and adjudge that the fund heretofore paid said relator arising out of said tax collected under Section 10682 was rightfully paid to relator then that, in either of said events, the issuance of said peremptory writ as prayed for by the relator be denied."
Relator demurred to the return. Its demurrer was overruled, and as it declined to further plead judgment was entered quashing the alternative writ and dismissing the cause. From such judgment relator appeals.
Appellant bases its claim to the fund in question on express provisions of Sections 10683 and 10818, Revised Statutes 1919. Respondents' position broadly stated is this: The Legislature has imposed directly upon the counties themselves, as distinguished from their road districts whether special or other, certain duties with respect to the upkeep...
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