48 Mo. 207 | Mo. | 1871
delivered the opinion of the court.
This is a suit upon a county warrant made payable out of the “ road and canal fund” of Pettis county. The same warrant was sued upon in Kingsberry v. Pettis County, and the decision in that case must control our action in this. (See 17 Mo. 479.) It was decided by this court in that case that the county could not be compelled to pay the warrant in question out of any other than the road and canal fund, and that the creditor could alone look to that fund for the payment of his claim. The object of the present suit is to get a judgment against the county, payable from its resources other than the road and canal fund, and so, in effect, to reverse the former adjudication. But that adjudication definitely settled the law which must determine the disposition to be made of the present suit, and the decision will not be departed from on the present occasion.
It is averred, indeed, in the present petition that the road and canal fund is no longer “ available for the payment of the balance due on said warrant, the same having been diverted”— as the petition alleges — “from that purpose by legislative enactment, and the action of the defendant by its agents.” For that reason the plaintiffs now seek to compel the county to do what this court has once decided could not lawfully be required of it, namely, to pay the warrant by an application of its general funds to that
Had the petition shown that the county had in fact received any portion of the road and canal fund, and applied it to other uses than the payment of the warrant, or withheld it from that application, the case would have presented a very different aspect. But the petition fails to show that the county has at any time received, or held subject to its control, any part of said fund which it has not faithfully applied to the payment of the plaintiffs’ warrant. The pleader contented himself by averring a general diversion, without any statement showing the amount claimed to have been diverted, whether substantial or merely nominal, or the time, place, or circumstances of the act complained of; or any fact showing that the county has in fact converted to its own use any part of the fund set apart for the payment of the claim sued on.
The enabling act of March 21,1868 (Sess. Acts 1868, p. 42), authorizing counties in certain cases to issue bonds, does not relieve the plaintiffs’ case from its embarrassments.
The other judges concurring, the judgment will be affirmed.