106 Mo. 510 | Mo. | 1891
This whs a petition in the circuit court for a mandamus against the defendant Trammel, who is treasurer of Macon county, to compel him to pay a warrant for $10 held by Hudson, the relator. Trammel appealed from a judgment awarding a peremptory writ. This proceeding was commenced in April, 1886, and determined in May of same year.
It is admitted that the relator presented his warrant for payment to the respondent treasurer, in'April, 1886, which payment was refused, and that it was properly drawn upon the “contingent fund.” There was then sufficient funds in the treasury to the credit of that fund to pay the warrant.
It is alleged in the return made by the treasurer to the alternative writ, that the contingent fund is a part of the ordinary revenue of the county, arising from the levy of thirty cents on the $100 valuation, the other twenty of the fifty cents allowed by law belonging to-the townships, the county being under township organization ; that on the twenty-ninth of April, 1884, there was registered against “the said ordinary and general funds and revenues” fifteen other warrants to pay judgments rendered against Macon county by the circuit court of the United States, “which said warrants were issued as respondent believes and is informed by the county court of Macon county in obedience to peremptory writs of mandamus issued from said circuit court of the United States.” The names of the payees and the amounts of their warrants are set out, aggregating about $183,000, with the averment that they remain unpaid and exceed in amount all the moneys and funds in the treasury.
For further return it is alleged that five of the said judgment warrant holders, whose warrants amount to
For a further return it is averred that another of said judgment warrants for $35,667 was issued to one •Huidekoper in obedience to a peremptory writ of mandamus from the United States circuit court; that said •court in that proceeding and in November, 1885, ordered the county treasurer to return an account of moneys collected and arising from the levy of fifty cents on the $100 valuation since the registration of that warrant up to and including the thirty-first day of December, 1885 ; that the treasurer made return and thereupon the relator in that case made the claim that the whole of the money collected and reported should be applied to the payment of his warrant; that the issues thus made remain undecided.
There is the further general averment that all of the foregoing mandamus proceedings are still pending :in the United States circuit court.
The relator in his reply admits that the judgment ■ warrants set up in the return were issued and registered -as therein alleged, “but says they were issued to pay an
The evidence produced, it is conceded, shows that there was at the date of this trial some $17,000 in the-county treasury; that $3,000 of that amount had reached the treasury since the last return made to the mandamus proceedings in the United States circuit court, that $2,200 of the $17,000 had been set apart to the contingent fund, and that $300 o E the contingent fund had been collected since the said last return in said proceedings.
I. We have now, as we had on the former hearing of this case, much difficulty in understanding the facts involved in this contest. Some of the averments of the return are made on information and belief. A denial on information and belief in a return to an alternative writ of mandamus is not sufficient. The denial must be direct and positive. State ex rel. v. Williams, 96. Mo. 18. So where matter ip avoidance is set up in the return the averments should also be direct and positive and not on information and belief. But as no objection was made to this form of pleading, and as the reply seems to confess the matters thus alleged, they must be taken as admitted facts. Again the return is very indefinite as to many important matters, and it may be that we do not yet understand the real facts.
II. The relator presented his warrant for payment on April 20, 1886. At that time there was sufficient money to the credit of the contingent fund to pay his warrant and all previous warrants registered against that specific fund. The relator is, therefore, entitled to the relief which he asks, unless it was the duty of the
While it appears the bonds were issued to the Missouri & Mississippi Railroad Company,it does not appear when or under what law they were issued. It seems to be assumed on both sides, and we take the fact to be that they were issued in February, 1870, by authority of the thirteenth section of the act of February 20, 1865, incorporating the said railroad company, which section is in these words :
“It shall be lawful for the corporate authorities of any city, or town the county court of any county, desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same not to exceed one-twentieth of one per cent, upon the assessed value of taxable property for each year.”
While this section gives the county court power to subscribe to the stock of this particular railroad company and to issue bonds in payment thereof, it also provides how the bonds may be paid, namely by the levy of a tax not to exceed in each year the designated amount. This court has held that the money raised by this .special tax constitutes the fund and the only fund out of which these bonds or warrants issued to pay judgments rendered thereon are of right payable. State ex rel. v. Shortridge, 56 Mo. 126 ; State ex rel. v. Macon County Court, 68 Mo. 29. As we understand this record the special tax has been regularly levied and collected ;and applied in payment of the bonds and jugdments.
On the other hand the supreme court of the United States by a largely divided opinion, with the Shortridge case before it, held that these bond judgment warrants were entitled to be paid out of the general funds of the
If this question, whether these bonds and warrants issued in payment of them, were a federal question we should of course follow the rulings of the supreme court of the United States ; but the question is simply one as to the meaning of a statute of this state, and that is a question which this court must decide for itself. At the time the special act was passed the general law gave counties the right to subscribe to the stock of railroad companies, whether incorporated under the general law or some special act. But the general law required the assent of two-thirds of the qualified voters. It also made it the duty of the county court to levy a special tax to pay the subscription, or the bonds issued in payment thereof. Gr. S. 1865, secs. 17-21, p. 338. The tax for ordinary county purposes was wholly inadequate to meet obligations incurred for subscriptions to railroad stock. Hence, this method of meeting such obligations by a special levy.
The promoters of this railroad company were not satisfied with' the general law authorizing counties to subscribe for stock, and they procured this special charter provision which gave county courts the right to subscribe for stock without any assent on the part of the taxpayers. But the same section which confers such power upon the county courts makes its own provision in respect to payment of the subscription.
III. There remains to be considered another and very.different question, and that is, what effect is to be given to the judgments of the circuit court of the United States awarding these writs of mandamus commanding the county court to issue the warrant payable out of the general funds and revenues of the county.
The judgments awarding these peremptory writs of mandamus were doubtless rendered pursuant to the opinions of the supreme court of the United States in the cases before noted. Those cases hold that the bonds and judgments rendered thereon, as to any deficiency .after the application of the money raised by the special levy of one-twentieth of one per cent., constitute ordinary debts of the county and are payable out of the .general revenues of the county. Hence, the warrants were ordered to be and were issued against the “said •ordinary and general funds and revenues.” These judgments, therefore, amount to an adjudication that the warrants are chargeable on the general funds. The circuit court of the United States had jurisdiction over the parties and the subject-matter of those proceedings. The judgments are not reviewable by this court, nor can they be assailed in this collateral proceeding. They
It is true that the present relator was not a party to those proceedings, but the judgment established the status of the warrants and made them charges against the general revenues. Being registered, they have priority according to the date of their registration. This was the manifest object had in view in ordering them to be issued. Whether these judgments are right or wrong, is a question not open to our consideration as respects these warrants issued pursuant thereto.
The statute enacted in 1879 makes it the duty of the county court to divide the general revenues into five parts, commonly called the poor-house fund, the road and bridge fund, the salary fund, the jury and election fund, and the contingent fund, and each fund is declared to be a sacred fund for the designated purpose, and can only be drawn from the treasury by warrants issued on the particular fund. R. S. 1879, secs. 6818-6820. We do not know when the warrants in question were issued; but as they were registered April 29, 1884, it is assumed that they were issued about that date, which was long after the law just mentioned was enacted. The warrants appear to have been issued in disregard of this law. We suppose they were issued so as to cover all of the general revenues on the theory that the bond creditors were entitled to resort to the funds opened to them at the date of their bonds. Even at that date the road fund and the poor-house fund were raised by a special tax levied for the particular purposes (Wag. Stat., sec. 154, p. 1224, and secs. 8, 12, p. 998), and could not have been invaded by these bond warrants.
But all this brings us back to the proposition that these bonds and the judgments thereon have been adjudged by a court of competent jurisdiction to be