Wilson v. Knox County
| Decision Date | 05 February 1896 |
| Parties | Wilson, Appellant, v. Knox County |
| Court | Missouri Supreme Court |
Rehearing Denied 132 Mo. 387 at 398.
Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.
Reversed and remanded.
L. F Cottey and Gardiner Lathrop for appellant.
(1) In Missouri, it has been repeatedly held: That the intention of the legislative act may often be gathered from a view of the whole and every part of the statute taken and compared together. When the true intention is accurately ascertained it will always prevail over the literal sense of the terms. The occasion and necessity of the law, the mischief felt, and the object and remedy in view, are to be considered. Humes v. Railroad, 82 Mo. 227; In the Matter of Bomino's Estate, 83 Mo. 441; White v. Chaney, 20 Mo.App. 393; Selden v. Hall, 21 Mo.App. 475; Powell v. Powell, 23 Mo.App. 371; Monks v. Strange, 25 Mo.App. 14; Welch v. Railroad, 26 Mo.App. 367; St. Joseph v. Porter, 29 Mo.App. 610. (2) Respondent relies on the general statute of limitations of ten years. R. S. 1889, sec. 6774. Section 6791 of the same chapter provides that, "this chapter shall not extend to any action which is or shall be otherwise limited by any statute." This action is otherwise limited by section 3195, Revised Statutes, 1889. This section (3195), when considered in connection with section 6791, takes this case entirely from under the operation of the general statute of limitation of ten years. Section 3195 provides a complete remedy on county warrants, and was evidently intended to be the sole remedy. The latter section is "a special provision applicable to a particular subject," and was clearly intended to be the law governing county warrants. State v. DeBar, 58 Mo. 398; St. Louis v. Ins. Co., 47 Mo. 149; State v. Green, 87 Mo. 587; Payne v. Masek, 114 Mo. 637. (3) The restrictions in section 11, article 12, of the constitution, do not apply to debts of the character involved in this suit. The section excepts "valid indebtedness now existing or bonds which may be issued in renewal of such indebtedness." Lewellen v. Schooley, 84 Mo. 455; Barnard v. Knox Co., 105 Mo. 385. (4) By the second paragraph of the agreed statement, the plaintiff contends that the fiscal year begins January 1, and ends December 31, of each year; while defendant contends it begins March 1 of each year and ends on the last day of the following February. The General Statutes of 1865, section 11, chapter 10, provided that: "The fiscal year of the state shall commence on the first day of October and terminate on the thirtieth day of September in each year." (5) It appears from the record in this case: First. That defendant issued the warrants in suit for value received, for county purposes, and that they were duly and timely protested for lack of funds to pay them. Second. That defendant has suffered no money to go into its treasury subject to their payment, since the date of their respective protests. Third. That defendant for six years, since the issue and protest of said warrants, only levied and extended upon its tax books an annual tax of forty cents on the $ 100 valuation for county purposes. Fourth. That defendant in 1887, made an order declaring said warrants void, by prohibiting the collector from receiving them in payment of county taxes, and the treasurer from paying them in any manner. Upon this record the defendant now asks the court to declare said warrants worthless.
O. D. Jones and Charles D. Stewart for respondent.
(1) The fiscal year of the county begins March 1; in that case the warrant sued on in the second count is admitted to be an over issue for that year, and is, therefore, void. Page 18, paragraph 10, agreed statement. (2) The ten cents extended on the road overseers' books, the years 1881-3-4-5-6-7, is a part of the legal levies of those years, to make a total of fifty cents on the $ 100. (3) The levy and collection of fifty cents on the $ 100 in warrants or money, or warrants and money, per year fills the constitutional limit in counties of less than $ 6,000,000. (4) The warrants referred to in paragraph 7, page 16, is a part of the volume to be considered in determining whether the revenues of the year have been overdrawn. If so considered the two warrants sued upon are admitted to be void. (5) A warrant issued under the present law, "the Cottey bill," on the "officer's salary" or "pauper fund" is a warrant issued on "a special fund" in the sense that a general judgment can not be rendered on it against the county. (6) The fact no money "has been set apart," to pay a registered warrant does not prevent the running of the general statute of limitations of ten years. (7) The warrants are barred by statute of ten years' limitation. The warrant is to all intents and purposes the promissory note of the county. Bank v. Franklin Co., 65 Mo. 105-112. "They were in effect the promissory notes of the city and plaintiff had a right to take and hold them." Bank v. Lexington, 74 Mo. 104, 105. It is due when issued and the general statute of limitations runs on it. 15 Am. and Eng. Encyclopedia, page 1218, note 5, and cases cited. The statute of limitation is generally held to a defense on a municipal warrant. Ibid., page 1222, note 1, and cases cited.
OPINIONIn Banc.
This is an action on two county warrants duly issued and delivered by the county court of Knox county, one for the sum of $ 182.35, payable to John Gibler out of any money in the treasury appropriated for officers' salary fund, and by him duly assigned to plaintiff, dated the thirtieth day of June, 1880, presented to the treasurer of said county and protested for want of funds July 9, 1880; again presented to said treasurer, and protested for want of funds April 28, 1887. The other for the sum of $ 157.88, payable to Timothy Kelley out of any money in the treasury appropriated for pauper fund, and by him duly assigned to plaintiff, dated the fourteenth day of February, 1883, presented to the treasurer of said county and protested for want of funds on that day; again presented to said treasurer and protested for want of funds on the twenty-eighth of April, 1887.
The suit was instituted on the nineteenth of May, 1893; was tried by the court without a jury; the court declaring the law of the case to be "that an action accrued to plaintiff or the owners or holders of the warrants more than ten years before the bringing of this action * * * and that the action on each of them was barred at the time of bringing this suit by the statute of limitations of ten years," rendered judgment for the defendant, and plaintiff appeals.
An action upon any writing for the payment of money or property is barred by the general statute of limitations if not brought within ten years after the cause of action thereon has accrued. R. S. 1889, chap. 103, art. 2, secs. 6773, and 6774. But in that statute it is provided that, "the provisions of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute." Sec. 6791. And it is also further provided in that act, in effect, that the written acknowledgment of a debt shall be such evidence of a new or continuing contract as to take the debt out of the operation of the provisions of said article. Sec. 6793.
By chapter 45 of the Revised Statutes a code is provided for the organization and government of counties. In articles 4, 5, and 6 of that chapter we have the expression of the legislative will upon the subject of county warrants, prescribing the form of such warrants (sec. 3191); when to be drawn and by whom signed (sec. 3192); how to be negotiated (sec. 3194); by whom to be presented, and how paid by the treasurer of the county (secs. 3193 and 3219); when to be canceled, and when barred by the lapse of time (sec. 3195).
By section 3193, it is provided that "no county treasurer in this state shall pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor, or administrator; and when presented for payment, if there be no money in the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same." And section 3195 provides that, "whenever any warrant drawn on any county treasurer shall have remained in the possession of the county clerk for five years, unclaimed or not called for by the person in whose favor it shall have been drawn, or his or her legal representatives, the county court shall, by proper order, entered of record, annul and cancel the same; and whenever any such warrant, being delivered, shall not be presented to the county treasurer for payment within five years after the date thereof, or, being presented within that time and protested for want of funds to pay it, shall not be again presented for payment within five years after funds shall have been set apart for the payment thereof, such warrant shall be barred and shall not be paid, nor shall it be received in payment of any taxes or other dues."
The decision in this case turns upon the proper construction of this last section. It will be observed that it deals with two classes of warrants, warrants regularly drawn but not delivered, and warrants delivered. As to the first class, if they are not called for in five years, the county court is authorized by entry of record to annul the same, as it might well be authorized to do, since the contract evidenced thereby remained unexecuted, and the instrument within its control. Not so, however, as to the second class, in which the warrants having been delivered, the contract is executed, and legislation thereupon...
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