146 Mo. 42 | Mo. | 1898
This is an action against the defendant, a political subdivision of this State, to recover upon several hundred warrants and jury scrips. Each warrant is made the basis of a separate count. The counts allege that on a specified date the defendant was indebted to a person named (for what is not stated) in a specified sum and that on the date named after the county court ascertained the fact, it ordered its clerk to draw a warrant therefor on the county treasurer, which the clerk did, commanding the treasurer to pay it out of the contingent fund; that by divers assignments plaintiff became the owner of the warrant; that the warrant was presented to the treasurer, who refused to pay it, indorsing on it the fact of presentation and that there was no money in the treasury appropriated for that purpose.
The answer denied the indebtedness, and set up seven defenses as follows: 1st. That the warrant is void, because it was issued after the county court had issued warrants in excess of the county’s revenue for the current year, and in excess of the appropriation for contingent purposes for that year; 2d. That it is void because at the time it was issued the county court had issued warrants in excess of the total revenue for the year, raised by a levy of fifty cents on the one hundred dollars valuation, the sum limited by law, exclusive of warrants issued during the year for the support of paupers, roads and bridges; 3d. Because at the commencement of this action the authorized revenues of the county for the year had been entirely consumed by the legitimate annual expenses of the county government; 4th. Because neither the payment of the warrant nor the creation of the debt had ever been authorized by a vote of the people of the county; 5th. Because at the
The case was sent to a reféree who reported upon two different theories: 1st. Upon the theory that the fiscal year begins on the first of January, and that the auditing and allowing of a claim and ordering a warrant to issue, constitutes the creation of the debt; and 2d, upon the theory that the fiscal year begins on January 1st, and that the debt is created at the time the services are performed or the goods sold and delivered, and that the fund for one year is not exhausted until warrants aré issued for services rendered or goods sold
Upon the first theory, he reports that two warrants, in suit, amounting to $3.50 were issued prior to the time the revenue for 1888 was exhausted; that three warrants, in suit, amounting to $22.30 were issued before the revenue for 1889 was exhausted, and that two warrants in suit amounting to $23.05 were issued before the revenue for 1890 was exhausted. These amounts aggregate $48.85.
Upon the second theory the referee found, “the total amount warrants issued during the years 1888, 1889 and 1890, issued for services performed and goods sold and delivered between Jan. 1st of each year and the date and warrant when fund for each respective year was exhausted, where dates have .been found, $808.77.” The referee also reports that as to $493.88 he is unable to discover the dates when the services were rendered or the goods were sold and delivered. The plaintiff filed exceptions to the referee’s report, which the court overruled, and thereupon the cause was submitted to the court upon the following agreed statement of facts:
“It is agreed by the parties, plaintiff and defendant in the cause above entitled, as follows:
“That the warrants mentioned in the different counts of plaintiff’s petition were ordered drawn by the county court of Douglas county on the county treasurer of said county at the respective dates mentioned in the different counts, and that the county clerk of the county court drew said warrants pursuant to said orders and for the sums Darned in them, directing and commanding said treasurer to pay the sums of money named in the different warrants to the payees therein for the purposes recited by the warrants.
*48 “That the said jurors and witnesses referred to in the different counts of said petition were chosen, selected, summoned and qualified, recognized to' attend said circuit court as in said counts set forth and that they traveled the number of miles and attended the number of days as stated and that the same were entered in a book kept for that purpose in manner and by law required on said jurors’ and witnesses’ application as in said scrip stated, the same was duly verified by said jurors’ and witnesses’ oaths and that said scrip and warrants were signed and given by the said circuit clerk as in the said counts státed and verified by said circuit clerk’s official signature.
“That said scrip and warrants issued to said witnesses before said grand jury, were duly countersigned by the foreman of the respective grand juries before which they attended as in said counts stated.
“That said warrants and scrip were assigned in the manner required by law to the assignees named in the several counts and finally to the present plaintiff which is now the legal holder and owner of said warrants and scrip.
“That the said warrants and scrip were presented to the county treasurer of said county for payment and payment demanded at the time mentioned in the several counts, but the treasurer refused to pay the said warrants and scrip because there was no money in the treasury for that purpose and indorsed-them in these words: “The within warrant presented for payment and no money in the treasury for that purpose this- — day of-18 — , -. County Treasurer,” the blank spaces in said indorsements being filled with the date of presentments and signed by the county treasurer on whom demand was made, as on the backs of said, scrip and warrants stated.
“That plaintiff is a corporation duly organized.
*49 “That all said warrants remain due and unpaid.
“That this suit involves the legality and payment of 286 warrants and jury and witness scrip issued in the years 1888, 1889 and 1890 in the aggregate amount of $3,570 exclusive of interest of which amount,
There are on account of criminal costs.............. $1,271 02
Stationery, books and blanks ...................... 785 47
Boads........................................... 53 60
Paupers and insane ............................ 255 10
Insurance on court house.......................... 51 00
Salary of judges of county court................... 133 58
Salary of sheriff and jailer....................;.. 261 40
Bepairs on court house.......................... 12 23
Bent of building for jail......................... 25 00
Fuel .........'.................................. 15 55
Jury and witnesses........ 314 95
Salary and fees of county clerk.................. 282 54
Printing ....................................• 89 40
Sundries and unknown............................ 29 57
$3,570 00
“That the cause was referred by the court by consent of parties to Hon. A. Burkhead as referee to ascertain and report:.
“1. When the several debts were incurred for which said warrants were issued.
“2. When the revenues of the county were exhausted in each of the years 1888, 1889 and 1890 by indebtedness incurred in each of these years respectively.
“3. For what amount of these warrants the county is legally liable.
“4. That said referee heard evidence and there was evidence tending to support his finding which was filed in the case on 25th of March, 1895, and exceptions filed thereto on 27th of March, 1895, by plaintiff.”
“1. That upon the evidence and the referee’s report the plaintiff is entitled to recover upon all the warrants and scrip sued on.
“2. That upon the evidence and said finding and the facts as agreed on in this case the plaintiff is entitled to recover on all the warrants and scrip issued for services rendered and materials sold, attendance of witnesses and jurors’ services, salaries, etc., accruing after the decision of the Supreme Court of the State in Potter v. Douglas County, that said decision and its acceptance and following throughout this State constitute a rule of property and created vested rights which could not be divested by any subsequent decision overruling the same.
“3. That it is a violation of the obligation of the contract between the original holders of said warrants and scrip as well as their assignees to hold that the validity of the said scrip and warrants is effected by any decision of the Supreme Court contrary to the construction maintained at the time said warrants and scrip were issued.
“4. That the decision in Potter v. Douglas County, 87 Missouri 239, constituted a rule of property as to the warrants issued for county officers’ salaries, books and stationery for such officers, jurors’ and witnesses’ fees, and in so far as the decision in Barnard & Co. v. Knox County, 105 Mo. 382, may appear to reach and effect the validity of such scrip and warrants the same is violative ' of the obligation of contracts, and hence said decision can not be held to apply to such warrants and scrip after the decision in said Potter case for services, etc., rendered and received thereafter.
“5. That the opinion of the Supreme Court of this State in construing section 12, article 10 of the*51 constitution of the State in the case of Potter v. Douglas County, reported in 87th Missouri Report, is based upon two propositions of construction: First, that the inhibition in said section contained did not apply to county debts of a contingent character the amount of which could riot be foreseen nor anticipated by the county court; and second: That it did not apply to indebtedness which accrued by reason of statutory provisions over which county courts had no other control than that of auditing boards; that from the rendering of said opinion in 1885 until the reversal thereof by the opinion rendered by the same court in the case of Barnard v. Knox County in 1891, reported in 105th Missouri Report, such construction became and was the settled and fixed construction of said section 12 in this State, and the law of this State on the subject and a rule of property governing the legality of county indebtedness, and if it appears that all the warrants in suit were issued between said dates and for services rendered and for materials, furnished to defendant county between said dates, then the judgment should be for plaintiff for the whole of said warrants and scrip.
“7. That plaintiff is entitled to recover upon all warrants and scrip which were issued for services rendered or materials furnished for and to defendant before the exhaustion of the revenue of the year in which they were respectively issued by indebtedness already incurred in such year for services rendered and materials' furnished in such year.
“8. The plaintiff is entitled to judgment upon all warrants and scrip which do not affirmatively appear to have been issued for indebtedness incurred in any year after the exhaustion of the revenues of the county for that year in which they were respectively issued by*52 prior indebtedness incurred for services rendered and materials furnished for and to defendant county.”
I.
Plaintiff’s contentions are: First, That the decision of this court in Potter v. Douglas County, 87 Mo. 239, constituted a rule of property, and that any warrants that were issued upon the faith of that decision are not affected or. invalidated by the overruling of that case by the decision in Barnard v. Knox County, 105 Mo. 382; Second, That under the rule laid down in the Barnard case, it is entitled to a judgment for $808,77 and $48.85 upon the referee’s report'; and Third, That it is entitled to a judgment for $493.88, on the referee’s report.
In support of its first contention plaintiff asserts the proposition: “After a statute or Constitution has been settled by judicial construction, the construction becomes, so far as rights acquired under it are concerned, as much a part of the statute or Constitution as the text itself, and a change in the decision of the courts is, to all intents and purposes, the same in effect on contracts, as if made by lógislative enactment or a constitutional convention.” Without the interpolated words about the Constitution and a constitutional convention, this statement is substantially and almost literally the language of Chief Justice Waite in Douglas v. County of Pike, 101 U. S. 687. The doctrine thus 'stated is almost universally accepted as applied to decisions construing statutes, especially where there has been a long line of decisions on the question, but even then the doctrine of stare decisis has not been followed where a palpable wrong or injustice would be done, or where the mischiefs to be cured far outweigh any injury that might be done in the particular case by overruling prior decisions. A distinction has also been drawn
There is another reason for a distinction between decisions construing statutes and those construing the Constitution. If the people are dissatisfied with the construction of a statute, the frequently recurring sessions of the-legislature affords easy opportunity to repeal, alter or modify the statute, while the Constitution is organic, intended to be enduring until changed conditions of society demand more stringent or less restrictive regulations, and if a decision construes the Constitution in a manner not acceptable to the people, the opportunity of changing the organic law is remote. Moreover no set of judges ought to have the right to tie the hands of their successors on constitutional questions, any more than one G-eneral Assembly should those of its successors on legislative matters.
But the case at bar can not fairly be said to entitle plaintiff to invoke the doctrine contended for by him. None of the items for which the warrants here involved were issued can be tortuted into a contract between Douglas county and the persons in whose favor they were issued, based upon the faith of the rule announced in Potter v. Douglas Co. Those items are set out in the agreed statement of facts. One of them relates to matters belonging to the first class of expenses, for which sections 7663 and 7664, Rev. Stats., require the county revenues to be appropriated and to which it is solemnly pledged, one belongs to the second class, two belong to the third class, two to the fourth class, and seven to the fifth class. The first class, required by those sections of the statutes, relates to necessary expenses for the care of paupers and insane persons; the second, to building bridges and repairing roads including the pay of road overseers; the third, to the salary
As to the second contention, it appears from the report of the referee, that upon the theory that the issuing of the warrant creates the debt, there were war
The second theory upon which the referee stated the account, that the debt was created when the services were rendered or the goods sold and delivered is the correct statement of the law, and upon- this the plaintiff was entitled to a judgment for $808.77 but not for the $48.85, for that is included in the $808.77, and the circuit court erred in not so finding.
As to the third contention, the referee found that warrants amounting to $493.88 were issued but he was unable to ascertain the dates when the services were rendered or the goods sold and delivered. Plaintiff bases its claim to a judgment for this amount upon the contention that the burden of proof is upon the defendant to show that the revenues for the -respective years were exhausted when these debts were created, and that the evidence regarding the services for which
For the error of the circuit court in not entering judgment for the pláintiff for the $808.77 aforesaid the judgment is reversed and the cause remanded to be proceeded with in accordance herewith.