SECURITY STATE BANK, a Banking Corporation, Plaintiff-Appellant, v. COUNTY OF DENT, Defendant-Respondent.
137 S. W. (2d) 960
Division One, Supreme Court of Missouri
March 6, 1940
We cannot hold that construction of the revenue laws of this State is involved in the determination of a party‘s status or claim, merely because this may entitle him to be paid some amount out of public funds. If that were true, why should we not take jurisdiction of all State Highway condemnation cases, since right of way may be paid for with State funds (see State ex rel. State Highway Commission v. Day, supra), or of teacher‘s suits against school districts for salary to be paid from school funds (see Edwards v. School District No. 73 of Christian County, 221 Mo. App. 47, 297 S. W. 1001), or of the determination of costs to be paid by the State in a criminal case (see State ex rel. Houser v. Oliver, 50 Mo. App. 217) or of any case involving a contract with the Highway Commission, or any other board of commission authorized to make contracts and be sued thereon, regardless of the amount involved, or even of all misdemeanor cases, in which there are fines, because fines assessed are paid into the school fund. The case of Hughes v. State Social Security Commission is overruled. We hold that the jurisdiction of the appeal in this case is in the proper Court of Appeals.
The case is transferred to the Kansas City Court of Appeals. Bradley and Dalton, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.
Geo. F. Addison for plaintiff-appellant.
DALTON, C.—On November 26, 1937, plaintiff obtained a final judgment for $6101.73 against defendant in the Circuit Court of Dent County on warrants and jury script. Thereafter plaintiff caused a general execution to be issued and a levy to be made on real estate of the defendant. Motion to quash the levy was duly filed, notice given, evidence heard, the motion sustained and the levy quashed. After motion for new trial was filed and overruled plaintiff appealed.
The motion to quash the levy alleged that the said real estate was purchased by Dent County with public funds for a public purpose, to-wit, to be used for erecting and maintaining a jail thereon; that said real estate had been and was being used for public purposes; that the property was near the court house and used in connection therewith for storing fire wood, lumber, tools, bridge materials and road machinery; and that the property was not subject to levy under execution on the judgment against the county.
Defendant alone offered testimony in the hearing on the motion. It tended to show that the said real estate, levied upon by the sheriff, was a vacant lot across the street north from the court house square in the City of Salem, Missouri; that about 1921 said real estate was purchased by the county court with public funds of said county and the deed was made to Dent County; that since the purchase of said lot it had been used for a public hitch rack and for the storing of cord wood for use as fuel in the county offices in the court house; that at various times the lot had been used as a storage place for lumber, bridge materials, road tools and machinery owned by the county; that objection was made to hitch racks about the public square and after the purchase of said lot the county court had pub-
Over plaintiff‘s objection that it was not the best evidence, defendant was permitted to prove by a witness, who was a member of the county court at the time of the purchase, that “the main idea” of the county court in purchasing the lot was to provide a place upon which to build a county jail.
Appellant assigns error as follows: (1) that there was no showing that the property levied on was exempt from execution; (2) that the lot was not used for any governmental purpose by defendant and the sale thereof would not interfere with any governmental function of defendant; and (3) that it was error to admit evidence of the purpose for which the lot was purchased, because it had not been used for such purpose. In argument appellant further insists that the evidence as to purpose was not the best evidence, and that no record showing the purpose for which the property was bought was introduced in evidence.
The hearing on the motion to quash the levy was purely a proceeding at law. Issues of fact and law were presented to the trial court for decision. No declarations of law were asked or given. The finding and judgment of the court, if based on substantial evidence, is conclusive. [Southern Coal Co. v. Shepard, 223 Mo. App. 112, 9 S. W. (2d) 257.]
Missouri authorities touching upon the particular matter under consideration are very limited. The
Certain property of a county is, by statute, expressly exempt from attachment and execution, to-wit, “all courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds.” [
Swamp land donated to the State of Missouri and by the State transferred to the several counties by an act which provided that “the net proceeds of sales” should “become a part of the public school fund of the county” was held not subject to execution “and entirely exempt from any liability for ordinary county indebtedness.” [State ex rel. Robbins v. County of New Madrid, 51 Mo. 82.] In the case of Catron v. Lafayette County, supra, it was said that if it had appeared from the record of the hearing on a motion to quash an execution that the property levied on was the public poor house and farm, such fact “would have afforded good ground for quashing the levy.”
Where a judgment had been obtained against a board of education, and an attempt was made to enforce it by execution against property held by it for public school purposes, this court, in sustaining an injunction to prevent the sale of the property, said: “As the board . . . is authorized to levy taxes, it would seem that the appropriate method of procedure, in such cases, would be by mandamus to compel the levy of a sufficient tax to pay the indebtedness. . . . Such a course would certainly avoid all difficulty, and oftentimes prevent the sacrifice of valuable property. But however this may be, whatever may be the proper course to pursue, we are confident that it would contravene the evident policy of our laws to permit school property to go to sale under fi. fa., either general or special.” [State to use, etc., v. Tiedeman, 69 Mo. 306, 308.] Mandamus is recognized as a proper and legal remedy for the collection of judgments against municipalities having no property subject to execution. [See State ex rel. Hufft v. Knight (Mo. App.), 121 S. W. (2d) 762; City of Edina to use, etc., v. School District, 305 Mo. 452, 461, 267 S. W. 112, 115.]
In the case of the City of Clinton ex rel. Thornton v. Henry County, supra, it was held that special tax bills for paving the streets about the court house square could not be enforced against the property of the county devoted to strictly public uses nor could a general judgment be obtained against the county therefor. In the case of the City of Edina v. School District, supra, 305 Mo. 452, 267 S. W. 112, 115, this court said: “The public schools have been entrenched as a part of the State Government and it is thoroughly established
Since Missouri authorities dealing with this particular problem are limited, we must consider general rules and principles of law as applied in other states and as stated by dependable authorities.
That a serious matter of public policy is involved when a judgment creditor seeks to levy upon and sell county property is well stated in the case of Emery County v. Burresen, 14 Utah, 328, 47 Pac. 91, 37 L. R. A. 732, 60 Am. St. Rep. 898. The court said: “A county is one of the political subdivisions of the State, signifying a community, clothed with such extensive authority and political power as may be deemed necessary by the superior controlling power of the State for the proper government of its people residing within its borders, and for a proper administration of its local affairs. A county can raise revenue by taxation, make public improvements, and defray the expenses of the same by taxation, exercise certain specified judicial powers, and generally act within the authorized sphere created or abridged by the statute or Constitution of the State. The power of taxation furnishes the means by which it may pay its debts and meet obligations necessarily incurred for the many purposes of its existence and welfare. The county has control of the county property to be used and disposed of to promote corporate purposes. It does not possess property liable to execution in the same sense that an individual possesses it. Levying upon and selling the property or revenues of a county, or removing it, may work irreparable injury, and ruin its inhabitants.”
In 3 McQuillin, Municipal Corporations (2 Ed.), page 787, section 1262, the rule is stated as follows: “Statutes often provides that court houses, jails and other buildings owned by municipalities and the lots on which they stand, shall be exempt from attachment and execution. But independent of express statutory exemption, as a general proposition, property, real and personal, held by municipal corporations, in trust for the benefit of their inhabitants, and used for public purposes, is exempt from such attachment and execution . . . the reason for the exemption is obvious. Municipal corporations are created for public purposes and for the good of the citizens in their aggregate or public capacities that they may prop-
“The courts are practically unanimous in holding that the funds or credits of a municipality or other public body exercising governmental functions, acquired by it in its governmental capacity, may not be reached by its creditors by execution under a judgment against a municipality, or by garnishment served upon the debtor or depositor of the municipality.” [89 A. L. R. 862, note; Snower v. Hope Drainage District (D. C., W. D. Mo.), 2 Fed. Supp. 931, 933.] The rule is not so strict in dealing with real estate of a county or municipality where it is established that such real estate is held for purely private purposes.
In 23 Corpus Juris, 355, section 105, the rule is stated as follows: “Where property of a municipality or other public corporation is sought to be subjected to execution to satisfy judgments recovered against such corporation, the question as to whether such property is levyable or not is to be determined by the usage and purposes for which it is held . . . and generally everything held for governmental purposes, is not subject to levy and sale under execution against such corporation. . . . Whether or not property held as public property is necessary for the public use is a political, rather than a judicial question.”
“The necessity for government service justifies that the property of public use of the municipality be exempt from execution just as it is necessary to exempt certain property of private individuals.” (Reviewing authorities.) [Tan Toco v. Iloilo, 49 Phil. 52, 59.]
In 21 American Jurisprudence, 229, section 457, the rule is stated as follows: “As a general proposition, an execution may not be levied against the property of a state, county, or municipal organization, in the absence of a statute expressly granting such right. Even where such a right is granted, it is a general rule that an execution may not be levied on any property held by a municipal or other public corporation for public purposes, . . . The same rule is applicable to school houses and other property used for school purposes. . . . The question as to whether property is reasonably necessary for public use must ultimately be determined judicially. Presumptively, however, all property of every kind held by a municipality is for the public use, and the onus of overcoming such presumption rests on the plaintiff in execution. In case of doubt, therefore, the question will always be resolved in favor of the city, the interest of the individual being of necessity subservient to the due and proper administration of government, or, in other words,
In Beadles v. Fry, 15 Okla. 428, 82 Pac. 1040, 2 L. R. A. (N. S.) 855, 858, the rule is stated as follows: “As to whether property is reasonably necessary for public use must ultimately be determined by the court, and in case of doubt it should be resolved in favor of the city, for the interest of the individual must be subservient to the due and proper administration of government.”
Under the statutes of this State counties may acquire real estate for certain purposes. “The county court of any county in this state shall have power to acquire by purchase, for such county, improved or unimproved real estate for a site for a courthouse, jail, or poorhouse or infirmary; or, when the county owns such site or sites, to acquire by purchase improved or unimproved real estate as an addition to or enlargement of the same; . . .” [
In addition, the evidence shows that since 1921 the lot has been used directly in connection with the court house property. It is admitted that cord wood for use as fuel in the county offices in the court house has been stored on the lot since the time of its purchase. Other personal property owned by the county, and held under the supervision of the county court, to-wit, road tools and machinery, and lumber and bridge materials, have been stored on the lot. The lot has also been used continuously for public hitch rack purposes at the seat of government.
We find nothing in the statutes requiring that real estate lawfully acquired by the county by purchase under the statutes be used immediately for the purpose for which it was acquired; nor do the statutes prevent a count court from lawfully exercising reasonable foresight for the county‘s future needs. Appellant presented no evidence tending to show that this lot was not needed, or would not reasonably be needed, within a reasonable time for governmental purposes. In determining the purpose for which this lot is now held by the county, we may consider the fact that it was lawfully purchased by the county court with public funds. We may consider its location with reference to the court house square and at the seat of government, its use in connection with the court house, its availability for future use, and also all other competent matters mentioned in evidence.
In addition, it may be said that exemption statutes have uniformly received liberal construction. [Nephler v. Rowland, 195 Mo. App. 386, 191 S. W. 1033, 1034; Prouty v. Hall (Mo. App.), 31 S. W. (2d) 103, 105.] It has been held unnecessary for lands constituting a homestead to be contiguous or physically connected so long as they are used in connection with the dwelling and its appurtenances. [Overfield v. Overfield, 326 Mo. 83, 30 S. W. (2d) 1073, 1076; Haggard v. Haggard (Mo.), 233 S. W. 18.]
We think that the evidence presented on the hearing of the motion to quash the levy was sufficient, prima facie, to show that the lot in question was held by the county for public governmental purposes and that it was, therefore, exempt from seizure on execution. Considering only the competent evidence in the record, and the inferences to be drawn therefrom, we are of the opinion that the order and judgment of the trial court quashing the levy is supported by substantial evidence.
There remains only the question of error in the admission of evidence. We have found no case where a trial court‘s ruling on a motion to quash a levy has been overturned on account of error in the admission of evidence. Appellant cites no authorities in support of this assignment of error or in support of the argument. All issues of fact on the hearing of this motion were submitted to and tried by the court. “The presumption is that the court, in weighing the evidence, was governed by correct rules of law. Hence it is held that the same rules of strictness are not enforced, on appeals, where the trial was by the court.” [Moffitt v. Hereford, 132 Mo. 513, 522, 34 S. W. 252; McCullough v. Phoenix Insurance Company, 113 Mo. 606, 616, 21 S. W. 207; Lewis v. Frankle, 158 Mo. App. 262, 266, 138 S. W. 64; Nevil v. Wahl, 228 Mo. App. 49, 55, 65 S. W. (2d) 123; U. S. Fidelity & Guaranty Company v. Goodson, 227 Mo. App. 456, 459, 54 S. W. (2d) 754; Gregar v. Broadway Auto Laundry (Mo. App.), 83 S. W. (2d) 142, 144; Hellman v. Bick, 55 Mo. App. 168, 170.]
Since there was competent substantial evidence in the record sufficient to support the finding and order of the trial court we must assume that the court disregarded all incompetent evidence and reached its decision in view of competent evidence. Lewis v. Frankle, supra. The error, if any, is not sufficient to work a reversal. The assignment is overruled.
Other assignments of error not briefed or mentioned under points and authorities, or in argument, will be considered as abandoned by appellant. [Wells v. City of Jefferson, 345 Mo. 239, 132 S. W. (2d) 1006, 1007.]
The judgment is affirmed. Hyde and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.