*1 city tending show that to no directs attention evidence any way either with said the enrollment connected by the by the or with the services furnished city children schools Furthermore, such evidence city we find no schools to said children. applica- without equitable estoppel is in the record. The doctrine of city cites State ex Consolidated tion the facts of this case. The Haid, (2d) 41 S. W. School of Pike District point on the facts. 806. That case All is so concur. judgment be rеversed. ordered. should' Casualty Motley, Agent York In for the New of J. M. the Matter Callaway Casualty Company, and The New York Company, v. Appellant. Municipal Corporation, County, 875. One, April
Division *2 appellant. for A. Faueeti and T. Larrikin Henry M.C. Baker
Glover Howell and <&Baker respondents. HYDE, proceeding $600 premium C. This is a to collect a for the year County 1940 on County rejected Collector’s bond. The Court appeal payment; judg- to and Court, trial in the Circuit ment was entered appealed. which has is contended on behalf Act, that Section 1 ap- proved (Laws April 1937. p. concerning premiums, void, unconstitutional and because in conflict with Section 3 of Article 10 of the Constitution. (now This section Sec. K. 3939), so far appliсable as
countv is as follows: "Whenever . any . . any state, of this or any deputy, appointee, agent employee any or . such officer . . shall state, by law charter, this or by ordinance or resolution, by any or any order state, intо enter any official bond, or bond, other may he elect, with the consent and approval , governing body of such . . . . surety surety company or surety bond, bonds, with or into enter of Missouri
companies, authorized to do business body pro- by every paid bond shall be such cost ’’ thereby. tected following order: County Court, January 2, entered the by considered, -adjudged “It and decreed Court therefore hereby Stanley Creed, aforesaid, be and that said Collector as he Revеnue purchase authorized to his official bond as said Collector $75,000.00 Surety Company Corporation, amount of from a authorized and chartered to sell bonds in the State of Missouri County, Missouri, Callaway provided cost 1937, provided рage Section of the Missouri Session Acts of subject approval said bonds shall be to the Court.” plaintiff Company approved bond furnished order February 28, entered 1939. It recited that it covered a term of office *3 years ensuing day of “four March, next the of 1939.” A warrant first court, $600, was then payment issued order of in the the of year’s premium year first for the 1939. The collector included the item premium Budget $600 of for the 1940 in his 1940 Estimate but Court pay refused to bill in presented therefor Mаrch
Defendant’s constitutional contention is that
the 1937 Act
“is unconstitutional for the
taking
reason that it
public
is
funds for
private purposes and
in
3,
is
conflict with
Section Article
Constitution
of
46-47,
State of Missouri.”
also Sections
[See
Art.
says
always
“thе law
required county
has
col
4.]
lectors in
give bond;
the state to
and if a
given,
commercial bond be
pay
to
for it themselves;” that it
private undertaking
is “a
pro
to
public funds;”
tect
and that “the
private
collector is a
enter
рrise in collecting taxes, for which
salary.”
he a
It is true
that under the monarchical form government,
ment of the common law in England, “public
early
of
in
develop
regarded
officeswere
incorporeal
as
hereditaments and subjects
private
of
property.”
[46
C. J.
28; see,
sec.
also, 22
R.
L.C.
sec.
But under our
7.1
form government
an office
a
“is privilege
gift
in the
of the state and
depends
the favor of the people;”
public
and it
a
“is
trust” be
cause “it is creatеd in the interest and for the
public.”
benefit-of the
R.
[22 C. L. 376-378,secs.
(or
is not
compensation
thereof)
8-10]
subject
a
grant
any
or contract of
person
[State
or officer.
ex
Rothrum Darby,
1002, 137
(2d)W.
system
The,fee
532.]
of compensation (payment оf fees for
each service rendered
an
officer) goes back
origin
in its
early
to the
common law view of an
office
private
property. Tt
increasingly
has
recognized
been
country
good
that this is not a
system
demoсracy
for a
under
representative
government.
a
form tendency
The modern
has,
therefore, been
put
to
basis,
our Federal and a salary
officers on
officers
public
furnish
used to
long been
Public funds have
supplies.
officе
postage stamps,
stationery,
space,
with office
A
is “in effect
surely analagous.
bond
furnishing
bonds
matter
officer,
an
security
performance”
faithful
for the
merely collateral
public
protect
in order to
any event,
duty
public in
he owes the
many
bonds have
Personal
L.
sec.
from
R. C.
loss.
[22
unnecessary to
it
disadvantages
deficiencies, which
known
taking
the results
notice of
Legislature,
no doubt
discuss here.
during
periods, considered
depression
of some
thesе
recent
funds
give
public
to
protection
could
better
company bonds
custody
It, therefore, authorized such
public
officers.
to
and the
if the officer elected
furnish it
bond for
officers
an
recognized
require
apprоved
it.
It also
to
reducing
pay
premiums
officer to
therefor would have the effect
compensation.
approval
actual net
So when consent and
for the
his
purchase
expense
given
to
a bond at
in ad
publiс
officer
such
was
body protected,”
“the
it
public
pay
vance
to
payment
No
ever
cost.
one has
contended that
to
salaries
of requiring
they
instead
them to collect fees from those
whom
service,
render
а public purpose.
is not
We see no difference
principle
of public
between the use
funds in
of officers’
authorizing
pay
salaries and
their
premiums,
use to
bond
instead
requiring
pay
officer
himself;
these
private
to beseech other
guarantee
citizens to personally
his faithful performance.
It will
always
in the public
interest to
create
situation in
which
may
be placed
greater obligations
under
pri
certain
(who
vate citizens
bond)
furnish his
public generally.
than
*4
least,
At
think it is
we
within the discretion
authority
and
of the
Legislature
say which
to
the
public
best
policy.
In State ex rel.
Louis,
Crow v. St.
Mo. ground. upon this constitutional any other rely upon рlead did not answer Defendant’s the contend that further Defendant does section the Constitution. that provide law “because said does is unconstitutional statute proportionate county pay its and state should of the each subdivision fact a matter of . . when as question in . part premium of the county county fund, county revenue, road state, protects the bond the fund, road special jail bond and interest hospital, courthouse and special other Special (and Road bridge fund, Fulton District- and County of in said districts), and 105 different school districts road pro- which Callaway.” provision cites no constitutional unjust to inequitable and says unfair, this, hibits “that it is but general rev- respondents’ out of the premium the of the bond take argument county.” noted “the plaintiff, the As enue fund of against the against premium could be used payment used the of this against making books, the county for tax payment of the clerk’s fees salary funds, the paying treasurer’s the custodian county the members compensation the of the of the county’s looking see no constitutional after the business.” We county from payment of the of a bond obstacle to the cost officer’s county, and, therefore, hоld general that revenue fund the authority Legislature. within assignment makes “are not plaintiffs Defendant also real no of contract existed parties privity interest because respondents appellant between which to base cause ’’ county obligated statute, party pay action. Under the was surety company bond, the cost of this under circumstances (when the requirement case. No is made that obtaining surety company bond) consents advance to obligated must pay premium pay first before the it. Likewise, ultimately premium plaintiffs due directly pay premium plaintiffs. did the first R. Section (sec. Ann. provides “every Stat. action shall prosecuted party real the name of the in interest.” Defendant only longer being Manny cites old no followed; cases the latest *5 Administrators, 419, Frasier’s 27 by Mo. overruled Salmon Falls Leyser, 51, Bank v. 77, 116 Mo. c. 22 l. S. W. l. c. It long has person been settled that a express for whose benefit an promise may, mаde statute, contract between others under this sue his own Harrison, name. 198; 16 [Ellis Stinde, Crone v. 863; Mo. 55 W. Binswanger S. v. Employers’ W. Ltd., 224 28 S. App. Mo. Liability Corp., Assur. assignment and it is overruled. in this
We find no merit that the court erro the further contention makes Jan Court order of nеously against claim that the found its bond, procured authorizing purchase uary 2, 1939, county alleged that the members of fraud. Defendant’s answer county officers, attorney employed court were misled they know knowledge they stated relied without superior whose interests; and asked that ing representing it was he was adverse binding and county, and on the the order declared void happened canceled decree. contention was based on what This meeting at a the new of the court with the other members attorney’s officers their 1938 elec at office soon after the November tion, commenced, office had before their terms more than month before order was made. The Chancellor heard tes timony attorney of the officers their and of the members meeting what court as to occurred at this and found appears defendant’s claim. the members the court were told, meeting when asked to attend the “thеy the other wanted Mr. Baker to make a bonds;” talk to us about the that the times; Act was read them several and that the members of expressed the court preference surety company bonds. It seems apparent the substance of the discussion was that the officers only would furnish bonds if the paid the costs and that this should be done if the court wanted such A bonds. careful reading testimony convinces us that there only was not sub stantial evidence to support finding attorney’s good faith (there was testimony that Mr. Baker said it mandatory was not buy the court to bonds), but that there could be little more than sur mise and suspicion upon which to base a claim of fraud. We, there fore, accept finding of the Chancellor. No questions, as right of the County Court require a new or (see different bond provisions Chapter 16, 1939), R. S. procedure or as to under the county budget (see law Chapter 73, R. presented by are the pleadings at the or assignments trial on appeal. The judgment is affirmed. Bradley Dalton, CC., concur.
PER CURIAM: The foregoing opinion by Hyde, C., is adopted opinion as the court. All judges concur.