Watson v. Kerr

• Decision Date: 30 December 1925
• Docket Number: No. 25986.,25986.
• Citation: 279 S.W. 692
• Parties: WATSON v. KERR et al.
• Court: Missouri Supreme Court

279 S.W. 692

WATSON v. KERR et al.

No. 25986.

Supreme Court of Missouri, in Banc.

December 30, 1925.

Motion for Rehearing Denied January 23, 1926.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Action by J. A. Watson against Fred C. Kerr and others. Judgment for defendants, and plaintiff appeals. Affirmed.

L. B. Woodside, of Salem, J. A. Watson, W. D. Jones, and Lorts & Bruener, all of Rolla, and Jones & Jones, of Sedalia, for appellant.

Frank H. Farris, of Rolla, and James Booth, of Pacific, for respondents.

RAGLAND, J.

Plaintiff, who is a taxpayer of Phelps county, and also the holder of a warrant drawn on the contingent fund of said county, seeks, by this action, to have the payment of certain other warrants drawn prior to his against said fund enjoined and those warrants canceled. The defendant Kerr is the treasurer of Phelps county; the other defendants are the holders of the warrants which it is sought to have canceled.

The facts as gathered from the evidence and the admissions made by the pleadings may be succinctly stated as follows:

On the 16th day of March, 1922, the county court of Phelps county entered into a contract with defendant McCaw for the purchase of 200 acres of "improved and unimproved" land, "for the use and benefit of such county as a poorhouse and infirmary," agreeing to pay therefor the sum of $17,000; the contract reciting:

"Which said sum is to be paid out of the contingent fund and out of any surplus of any other fund or funds belonging to Phelps county."

On March 28th, McCaw having furnished an abstract of title and delivered a deed of conveyance, in conformity with the terms of the contract, the county" court caused to be issued and delivered to him, among others, 10 county warrants, numbered from 269 to 278, inclusive; each being for $500 and payable out of the contingent fund of the county.

Neither on the date of the purchase of the farm nor on that of the issuance of the purchase-money warrants was there any money in the contingent fund or a surplus in any other fund belonging to the county; on the contrary, there were on the latter date warrants to the amount of $1.231.64, drawn on the contingent fund for current expenses for the year 1922, outstanding and unpaid for lack of funds. There were also other outstanding warrants in addition to these which had been issued in previous years.

On April 12, 1922, defendant McCaw presented to the county treasurer for payment the 10 warrants issued to him in payment of the purchase price of the farm sold the county, but for lack of funds they were not paid, and that fact was certified to by the county treasurer on the back of the warrants.

At the May term, 1922, the county court, pursuant to statute, made a finding as to the sum necessary to be raised by taxation for county purposes for that year and fixed the rate. Its record recites:

"Now, at this date, the court taking into consideration the matters and things relating to the revenue of Phelps county, Mo., the court finds that the total valuation of the county. * * * for the year 1922 is more than $6,000,000 and less than $10,000,000. * * * And the court finds it necessary to raise the sum of $48,000 for county purposes and to effect this it levies for county revenue 40 cents on the $100 valuation, which is classified as follows, to wit:

"For county road and bridge purposes, that there be levied and collected upon all real estate and personal property assessed in the county of Phelps for the taxes of 1922 a road tax of 10 cents on the $100 valuation in accordance with the provisions of section 10682, R. S. of Mo. 1919.

"For the pauper and insane expense, 11 cents on the $100 valuation.

"For the salary expense, 10 cents on the $100 valuation.

"For the jury and election expense, 5 cents on the $100 valuation.

"For the contingent expense, 4 cents on the $100."

The abstract of the assessment of the real estate and personal property in Phelps county subject to taxation for the year 1922, showing a total valuation of $7,503,183.44, was sent by the county clerk to the state auditor March 8th. It was received back after having been revised to some extent by the state tax commission, or state board of equalization, but without change as to the total valuation, on April 8th. It did not, of course, include assessments of railroad and telegraph property and the stocks and materials of merchants and manufacturers which were not received until August and September following.

The total income actually received by Phelps county from all sources in 1922, excluding the tax levied for road and bridge purposes, was $31,072.21. This was credited to the several funds of the county as follows: Pauper and insane, $9,347.71; salary, $12,321.96; jury and elections, $4,608.58; and contingent, $4,795.96. The total county expenditures for the year and for which warrants were drawn against the funds just mentioned aggregated $57,000.

In 1920 the total assessed valuation of all property subject to taxation in Phelps county, including that of railroads, telegraph and telephone companies, and merchants and manufacturers, was $5,956,175.84. There was a 50-cent levy; 10 cents being for road and bridge purposes. Under that levy there was realized for the pauper and insane, salary, jury and elections, and contingent funds the sum of $23,824.69, to which was added $2,875.82 received from other sources. At the time of the trial in March, 1924, there were outstanding unpaid warrants drawn in 1920 against the four funds just named to the amount of $9,876.28. From the figures set forth in this paragraph the conclusion may be drawn that the county expenditures, other than for road and bridge purposes, in the year 1920, amounted to at least $36,567.78.

In 1921 the total assessed value of property of all kinds subject to taxation in the county was $9,763,652. A levy of 40 cents on the $100 valuation was made, the maximum permitted by the Constitution where the total valuation falls between $6,000,000 and $10,000,000. Under that levy there was realized for county purposes, other than for road and bridge purposes; $29,290.98, and from other sources the further sum of $5,570.98, making the total income from all sources for the year 1921, $34,861.23. At the time of the trial there were outstanding warrants which were drawn against this fund in 1921 to the amount of $4,477.30. The figures just set forth tend to show that the total county expenditures for the year 1921, other than for road and bridge purposes, amounted in the aggregate to $39,338.53.

This suit was instituted on the 17th day of March, 1923. On that date there was money enough in the county treasury to pay the 10 warrants issued to the defendant McCaw, and the holders thereof were demanding payment. On the filing of the petition herein a temporary restraining order was issued, enjoining the county treasurer from paying the warrants, and that order, notwithstanding the circuit court on the hearing found the issues for defendants and dismissed plaintiff's bill, was continued in force pending this appeal.

The grounds upon which plaintiff predicates the invalidity of the warrants in question are set forth in his bill as follows:

"That the purchase of said tract, and the creating the indebtedness therefor, was not a current expense of said county, and the said county court had no right or authority in law to create said indebtedness without the vote of the qualified voters of said county authorizing it, the said county court, so to do, as is provided by section 12 of article 10 of the Constitution of the state of Missouri, which was not had, and said county court had no legal authority to levy any taxes upon the property of the inhabitants and taxpayers of said county for the payment thereof, or to...