*1 Strong Strong ex M. and Bennett F. rel. Charles State Missouri Strong Equipment M. Relators-Re- Company, d/b/a Charles Judge R. and President of v. A. spondents, Cribb, County, Respondent-Appellant, Missouri, Court of Macon No. 43823 273 S. W. 246. Banc,
Court en November Rehearing Denied,
Bendlen for appellant. Bendlen relators-respondents. & Collins Hess
Edwards, *3 proceed- instituted mandamus WESTHUES, C. Relators County Cribb, Presiding Judge of Court of ing compel A. the R. $4,494.75. sign a Missouri, the sum warrant County, Macon appealed. and Cribb court ordered the to be issued trial writ a,contract 8, 1952, $4,494.75 due under dated December was machinery. contend subject of which was road Relators the matter machinery years, period for a of three leased the the Court 1955; 1954, the due for each 1953, amount is, that that $4,494.75, 15,1952, in advance: on December on payable was 1954, 15, for the $5,347.27, on December 1953, $4,584.76, and 15, was for the first respectively. A warrant ordered drawn ensuing years ' signed December, judges order 1952. Two the the payment due Cribb, sign A. R. refused the order and Judge, but the agreement sign defense was that warrant. His the also refused County Bridget Laws, -6, provisions Title under was void VAMS, 26(a) VI of Article 1945 Constitu- 50, and Sec. Chapter alleged that contends in this “Lease Respondent Cribb court tion. equipment; road and not a rental of the fact sale Agreement” was budget for 1952 and also that excess of the payments were that anticipated for 1953 Agreement” revenues alleged “Lease agreement was and a violation of the therefore, void and, 1954 and the Constitution. Budget Laws appeal questioned during of this oral jurisdiction Our Ginger Palmer, in the case of State ex rel. v.
argument. We find
1125 in appeal Mo., (2d) 198 S.W. to those on this 10, issues'similar Court St. Louis court volved. That ease was transferred to this interpretation ground that the Appeals (194 (2d) 736) on the S.W. jurisdic en banc assumed Budget was in issue. This court Law us, we case now before In the tion and decided the case on the merits. and, Budget Law various sections of the interpret are called reason for the in this appeal properly lodged court therefore, the In State directly are concerned. that the revenue state laws of the 136, l.c. (2d) 495, 345 Mo. S.W. Childress, ex rel. Martin v. taken (2,3), approved following statement the court 1091, l.c. l.c. S.W. Hadley Adkins, 118, 119 State ex rel. v. Mo. “ re laws and includes law” covers 1093: ‘that the term “revenue as well preservation, and its lating disbursement the revenue to the itof and collection provisions relating assessment, levy, to the ” ** Dist. School v. See also State ex rel. Pullum Consolidated County, 361 Mo. No. of Stoddard S.W. follows: position as brief, states his
Appellant Cribb, in his or evade attempting to avoid respondents “In are this case the RS 50.670-50.740 Law, Ch. Secs. We Agreement’. be- arrangement they to term a ‘Lease by an choose or evasion. permit such avoidance should lieve that this Court not one or Agreement’ provides for the ‘Lease “Appellant submits alternatives: the other of two equip- $16,026.78 certain provides payment of
“First —It for the ment; or in 1953 County funds payment of provides
“Second —It for the agree- makes the herein, alternative point we si *4 “As will out fir the second budget, and the 1952 void as exceeds ment County revenues anticipates agreement void as it makes the alternative ’’ years. future County, and the County Macon of Bradshaw, Romet Clerk From principal County Treasurer, Clarkson, H. B. witnesses. control, we learn under their and'the records their evidence awith year of 1952 was commenced following facts: The fiscal outstanding obligations so “carry-over” $115,533.98. There were of $55,471.95. The estimated balance was that the unencumbered expenditures $250,588.71. The estimated at placed 1952 was go into necessary to do not think it $250,588.7.1.We fixed at 1952 were deem suf- 1952.. We during year expenditures as to details Leaving year. at the end of standing financial ficient to show suit, was a question in there the contract of consideration out in the at the end treasury Macon of of balance following by examination explained That $98,941.11. sum witness, Romet Bradshaw: “Q. Now, and, continue out. Was there a balance, to leave that if so, much, treasury County, how made Missouri, of Macon up of the 1952 that was carried revenues and the balance gave $98,941.11 you over? Is that this sum of me?
“A. That would be the That would be the Treasurer’s balance. gets Treasurer’s balance as he turn-over. soon as the Collector’s “Q. Well, the turn-over included the months Collector’s December, they November and did not ? n right. “A. That’s ‘ ‘ Q. later, Which 1952 reirenues ? came but were right. “A. That’s
“Q. figure $98,941.11 $39,152.00 does this include the Well, protested warrants ? They “A. They That does. have been deducted. have been figure before that is arrived at. “Q. $98,941.11 reached, When this balance of what other obligations or orders of kind incurred Macon claims unpaid in 1952 remain ? They would paid. “A. There be none. all be (To your “BY Mr. THE COURT: Is that under- Rendlen) standing of it ?
“BY MR. Yes, RENDLEN: sir. (To Hess) your understanding
“BY THE COURT: Mr. Is that of it ?
“BY Yes, sir, Judge, MR. HESS: on the Mr. basis of Brad- figures.” shaw’s following:
Further examination showed the “Q. (By then, you, Mr. I at Rendlen) Now understand year had, end of the you the Treasurer had a balance in the Com- $6,000.00? mon $29,000.00, Fund some and Class the sum of Yes, “A. sir.
“Q. $35,000.00? aOr total of around “A. Yes, sir.
“Q. then, thing: began one further You Now carry-over $115,533.98 with a ? Yes,
“A. sir. “Q. you carry-over And ended the of 1952 with a $98,941.11? right.
“A. that’s I believe $16,592.87 “Q. you spent you So more than received dur- ing 1952?
“A. sir.” Yes, understanding question from the evidence that last It is our 1952 referring during to the amount received did not include the beginning $55,471.95 unencumbered balance on hand at the of 1952. of year expenditures the over-all for the did not exceed It is evident that
1127 meaning income 1952 within 26(a) of VI, Sec. of Article Missouri 1945 Constitution. That section as reads follows: 26(a). “Section county, city, incorporated No village, or town school or district other political corporation or subdivision of the shall state become in an indebted amount in exceeding any year the income and plus such unencumbered previous balances years, except provided in as otherwise con- this from (Emphasis ours) stitution.” Appellant Cribb, in his brief, attempts to demonstrate that Budget Law was bridge fund, violated that the road and which is Class of 50.680, VAMS, overspent. Section If the overdrawn ($14,426.78) total agreed amount paid to be Relator con- under the tract for years charged against the three budget the amount of the of 1952 in 3, that.budget Class item would be overdrawn. An exhibit showing County’s evidence standing financial at end of 1952 disclosed a balance $12,154.83 in Class While Mr. Bradshaw, Clerk, being testifying
examined as to whether the amount allotted to Class had been over- spent, the made following witness statement:
“A. Well, may Honor, way! Your I it answer this I know certain bills were there, the amount which I did not know. say I way it well, protect my budget, order I want to to— speak up so to until this all agreements, time lease with the ex- — ception one, my knowledge, had paid been out of Class against but 3; we are now I con- drawing therefore, still tend that we didn’t overdraw Class 3.” expense generally
There is definite evidence that some items of charged bridge fund, the road paid to Class were out of Class funds. Clerk, From the cross-examination of we have the following:
“Q. (By Hess) Bradshaw, respect Mr. Mr. Respond- with figures ent’s payments Exhibit and the the lease concerning February March, $16,930.72, the amount of when was payment made, payments or those ?made “A. I believe the were warrants drawn the last week in Jan- uary. quite I am not certain. “ Q. in January Some time of 1953? right.
“A. That’s
“Q. paid? they From what were 6.” “A. 1952 revenue out of They Class . n Was a violation Law to such items out 50.680, 6 ? That portion fund in We do not think so. Class Sec. designated Class reads supra, follows: having provided expenses five 6. After for the
“Class classes may specified, expend any court heretofore balance for purpose; provided, 'however, lawful that t-he county court shall not
1128 n actually hand in any expense incur there is on under six class unless provided preceding cash for in classes pay funds sufficient to all claims if together expense six; provided, class any with incurred under constituting legal obligations such war- outstanding there be warrants under any authorized paid expenditure first before is rants be shall ” class six. may expended It assigned will be be noted that the funds Class ours) purpose.” (Emphasis “any with for certain restrictions .lawful hand in imposed actually is on One of the that “there restrictions is provided preceding for in pay cash funds sufficient to all claims * * six; together any expense with incurred under class classes unless the words, may depleted be In other the funds in Class not claims contracted in classes are sufficient to all funds the other Legis- be out of the funds in classes. The intention of the such 6 some- provisions as evidenced the established Class lature, supra, guarantee preceding a in classes be what as that all claims the shall knowledge is occur which paid. It common that unforeseen events often assigned to a certain class require expenditures in excess of amount the budget If such bridge and road fund. the for such as Class the county expense, the take care of the unforeseen class is not sufficient to in may money provided there is a sufficient court use in Class sum subject in not the restrictions mentioned the stat- that class that is apparent is that that in this case when ute. It was done became 3 expenditures might exceed sum allocated evident that Class the budget. to that class the YI, object 26(a) provision, Sec. of Article the constitutional compel Budget Laws,” supra, is to counties “County
and the Avords, govern In the operate on a cash basis. other municipalities to body obligate in in ing may municipality the a not sum any year. proAÚded of the one The sum available to excess year “plus spent in one the revenue years.” supra. previous 26(a), balances Sec. unencumbered not, County 1952 did in of Macon We rule that the Court Budget provisions the the LaAAr. expenditures, matter of violate “Lease question of whether the so-called pass need not We eqAÚpment a and not the road Agreement” fact sale a rental of was argument that it Granting' contract. sake mentioned contends, appellant a sale and not there rental, remained 1952, a sum sufficient county treasury, at the end of unencumbered constituting body governing- County Court, that the in amount so under could, fit, pay if amount due it saAV entire for the says this Appellant unencumbered balance. out of the contract required past compliance “strict with has court County Urban, S.W. Mo., Adair v. budget In case oE law.” by appellant, we cited a number of cases cited (2), l.c. which with compliance declared the law to be that strict required. deciding case. Law was We have followed that rule in only presented by appellant Judge, defense Cribb, that the signing constituted a-violation warrant *7 the Laws. the defense without The trial court ruled that Therefore, merit. We have found the trial court was correct. by appellant Judge County required Presiding as of Court was sign The act (Sec. 50.190, 1949, law the warrant. YAMS) RSMo to signing by of had been ordered to be drawn warrant which Presiding appellant act on part Court was a ministerial of as remedy. Judge proper 125, and C.J.S. Sec. mandamus judgment peremptory issuing The of trial court writ of the' hereby mandamus is affirmed. Acting Hollingsworth, Ellison, JJ., Leedy, J.,
It is so ordered. C. concur; Anderson, Special Hyde, Dalton, J., J., dissents; and Judge, sitting. not PER foregoing opinion by CURIAM:—The C., Westhues, opinion
adopted as the of the en Banc. Court HYDE, (dissenting). respectfully dissent from the J. —I by in this opinion adopted I am convinced Court case. (a) YI involved Sec. Article of
transaction violates of the Constitu certainly respondent not be true, compelled tion. If that is should sign the warrant. by by signed transaction the contract two members is shown by which fol- and the Order made them as
of the Court lows :
“LEASE AGREEMENT day December, Agreement is entered into this 8th of “This Lease by Strong Equipment Company, partnership con- and between 1952, Strong Macon, Mis- of sisting Strong M. and Bennett F. of Charles part of and Macon party first souri, hereinafter known as Judge, Cribb, County Court, A. its Missouri, State of R. Carter, Judges, herein- Henry and E. and C. District Robert Powell part part. Party of the party second second after known as of the first one 18A International agrees party part TD to lease from 29619, with serial number 28893, tractor serial number motor crawler of 97773, period for a Bueyrus hydraulic number Erie bulldozer serial years paying follows. rental as three Caterpillar D7 15, 1953—One 15, to December 1952, “December Laplante loader, and Shoate and tractor, tractor International payable in advance. Scraper $4494.75 and warrant for 15, $4584.76 1954—Warrant for “December payable in advance. $5347.27 1955—Warrant for 1954, to December
“December payable in advance.
“Party part acknowledges receipt- of the second accepts and equipment agrees keep good and maintain the same condition against theft, to insure it loss other hazards fire, insurable party assigns part, benefit of the its successors or first highest part agrees Party insurable value of the second thereof.. keep good repair expense the machine their own and in case at any days default in return rental the machine within 15 party part Macon, Missouri, to the place the first at of business its good repair it, excepted. they as received natural wear good “Party agrees machine part second to run the in a work- party part manlike manner and to hold the first free from all claims whatsoever, damages against persons and all 'cause pertaining operation. to the machine and its
“Signed day December, sealed this 8th Strong Chas. M.
Partner *8 Strong
Bennett F. Partner Presiding Judge Party First For of the Part E. ROBERT POWELL Company. Strong' Equipment Judge District
HENRY C. CARTER ' Judge District Party For of the Second Part Macon Court.’' “COURT ORDER “In Court of said County, December, on day the 8th 1952, the following among other proceedings, were viz.: had, IN RE: ORDER FOR WARRANT BE TO DRAWN ON CLASS
FOR PAYMENT PER LEASE AGREEMENT ON PURCHASE OF TD 18 INTERNATIONAL CRAWLER TRACTOR. “Now on day this up purchase court takes the matter
new road building equipment Strong Equipment from the Chas. M. Co., namely a TD International crawler tractor serial number 28893,,motor serial Bucyrus number 29619, hydraulic with Erie bull- dozer serial number purchase price per to be handled as ' (cid:127) agreement lease as follows: tractor, 16 International Scraper “December warrant 15, 1952, tractor $4494.75 December and payable loader, 15, in advance. 1953—One D7 and Laplante [252] Caterpillar Shoate 15, “December 1953, for $4584.76 1954—Warrant payable in advance. “December 15," to December 1955—Warrant' $5347.27 n payable in advance. agrees Tbe court ‘ ‘ agreement as tbe terms set the lease forth and orders and directs the clerk of the court draw warrant payable Class Strong Chas. Co., M. Equipment the amount of $4494.75to cover rental from Dec. 1952 to December
Signed,.................;........ Judge
Signed, E. POWELL ROBERT Judge Associate Signed, HENRY C. CARTER Judge.’' Associate It will be agreement noted that the calls transaction a lease the order purchase. calls it.a testimony shows relators recover the full machinery value of from payments involved required year including to be made over the three the value period, machinery old required agree- owned the' county and ment to be regardless transferred to However, relators. of whether the transaction was a my lease that it invalid sale, or view and in violation of Sec. an 26(a) because it created indebtedness year one obligated payments fixed to make on it of amounts out of the years. revenue of future 26(a) provides:
Section county, incorporated “No or city, town village, political corporation school district or other or subdivision exceeding the state shall become indebted an in any amount income and provided plus any unencumbered such previous except balances years, otherwise ” Constitution. . 26(b) provides: “Any incorporated
Section county, city, town village, political corporation school district or other or subdivision *9 by of state, qualified the vote of of thereof two-thirds the electors voting thereon, may in an five become indebted amount not to exceed per tangible centum property of the value of taxable therein as shown ’’ by completed county purposes. the last for state assessment and county opera of purpose provisions require
The these is to financial an by limiting expenditures tions to on annual basis in each be cash year year of to the amount revenue which the taxes for that produce by preventing to county incurring and a indebtedness paid years be in of to be derived future unless authorized out by (See 246; a vote. v. Mo. Liv Earl, two-thirds Book 87 Trask v. ingston County, 1045; 656, L.R.A.,N.S., 210 109 S. W. 37 Mo. 582, Eight City Hagler 549, (2d) 155; of 328 Mo. 41 W. Harrisonville, v. S. 751; Cox, City Salem, 330, (2d) v. 333 Mo. 62 S. v. of W. Hawkins 539; (Mo. Sup.), W. 640, 334 Mo. 66 S. Ebert Jackson (2d) County, v. 918; Sager City Stanberry, 336 W. (2d) 213, 70 W. v. of Mo. 78 S. S. (2d) Butler Mo. 431; Missouri Toncan Co. v. 352 County, Culvert 1184, (210 Mo., l.c. S. W. 506.) in case As said the Trásk
594) anticipation : of provision “This permits the the Constitution the current in the year’s income which revenues the of the to extent debt is anticipation contracted or of the. prohibits created and (210 revenues any Mo., year.” stated therein future It was further 600) l.c. year warrants, : may any draw county “While the in one court revenite the taxes levied within provided has leen and after scope argument levy plain and it year, income for is too such that the revenues of -anticipation Constitution of the forbids subsequent years.” a (Our italics.) any agreement create In to short, by payable debt in a year is unless authorized invalid future two-thirds vote.
It in a payable makes no difference whatever that the debt made year future a in- payment, rental of 'an under a lease'instead purchase price. stallment a It in Ebert v. Jackson was so held County, year involved a of a room to be used supra, which four lease a by justice payable peace. courtroom a of the the rental There was monthly obligated county pay but the lease for the whole year period. 920-) four (70 (2d), payments We said W. : “These S. í.c. paid years from the income and future as well revenue.of as from the and revenue for the the contract income county promise became effective. It an made was unconditional July 18, 1925, pay day on the rent in advance the first éach years. contingent for four month The of the rent was not upon occupancy room,by justice plaintiff’s of the or on furnish- ing county purpose. it to the an contract was effort fol- anticipate years the income and for several revenue of the within lowing the contract became effective. It created debt meaning Constitution, of said section of the is void.” full point decisive an for the amount of all the was that indebtedness paid in installments, required years, the lease to be future was made; incurred at the the lease contract was and that is likewise time in the situation this ease. in
The debt created in this case and contracted to be succeeding years (1953 1954), an each of the uncondi- two specified promise tional a fixed sum at time each of these years. (See supra, of debt in the case, future definition Trask only 595.) l.c. 'Not that true but it also was to be Mo., stated advance; namely, beginning in advance payable stated subsequent year. (The be- period annual rental each distinction contingent obligation and an unconditional contract such tween Neosho, City v. Mo. 30 S. in Saleno W. considered Mo., case, l.c. the Ebert case, in the Trask is discussed *10 clearly Thus, agreement (2d), 920.) this case 70 S. W. l.c. obligations payable years year unconditional in future in one created provisions prohibiting the constitutional creation of violates and this payable debts out of years. revenues of Hight future The cases of v. Harrisonville, Hagler v. Salem Sager supra, v. hold Stanberry, that such a transaction can enjoined be by taxpayers. in a suit argued It is that the lawfully contract herein could be involved made because the county had on hand in 1952 an unencumbered previous balance from years greater than the total amount of the debt contracted for at that time paid to be in 1952, 1954; 1953 and isit admitted in pleadings in this case such an unencumbered balance existed in 1952. existed, Because this unencumbered balance I agree purchase machinery paid contract to to be in full in 1952, or even to lease it years paid for three for in to be during advance 1952 out of this balance, unencumbered would have been valid. However, that is not what was done. The idea was to eat the cake and too; have it point to this unencumbered balance for the purpose making appear legal transaction lmt not to use it to pay the indebtedness agreement created. The pay was not to this in- charing debtedness that year out of this from unencumbered balance previous years or obligate even to this unencumbered balance for its payment. Instead, agreement just years. was in the pay future Not even payment the 1952 was to be made out of this unencumbered balance. There is not one paying woid order about court’s agreement created obligations, involved, herein out of balance; unencumbered instead it was ordered that the first was to bridge (A be made out of current road and funds. warrant on Class V.A.M.S.) Thus, see Sec. 50.680 BSMo: far order so as this shows, this unencumbered balance to be carried over to another was obligations. still unencumbered or More- used some other over, county the evidence shows the had at least two other installment agreements lease payments February with to be made in and March year aggregating $16,930.70 annually. each certainly indicates This practice anticipating future revenues and also shows that obligations total future a lease basis were much greater than those herein involved. It even indicates that the total of obligations, required paid installments, may all to be annual have on which been excess of the unencumbered balance relators rely legality Apparently, herein involved. to show the contract making practice because installment it was unencumbered budgeted bridge contracts. was shown that road and funds for It money some source would have were insufficient and that other bridge obligations. payment of all 1952 road and to be used to make September.) since It further (Class protested had been warrants county’s expenditures $16,592.87 more in 1952 the shown that Certainly payments, required deferred receipts. the two than its ’ years, in future were left to be out made on relators contract years no method because other revenues of those there by the court’s order or otherwise. them shown paying *11 To be extraordinary remedy entitled to a of mandamus, party must a legal (State show clear right. Phillip ex rel. v. Public School System Retirement City Louis, 364 Mo. St. S. W. (2d) 569 cited.) certainly and cases I do not think relators have any made such showing in case. this On face the contract and an order, anticipation unlawful years of the revenue of future shown. Furthermore, it was at least left in doubt that the unencum balance, bered on which rely contract, relators to a lawful show pay used to obligations by agreement created their new lease any part thereof. disregarding Even the unconstitutional feature of contract, I think respondent, presiding judge, justified refusing sign this to pay bridge warrant road and out funds this contract because the record existing obligations against does show that greater fund than bridge the amount available from road and budgeted funds during year 1952, taxes levied and does not sjiow that proper provision had been made to take care Certainly excess. not at the suit time this was commenced on December 22, 1952. It necessary to use funds from some other source before the end of obligations against meet the that fund and to keep in compliance with the County (Secs. Law. 50.670- 50.740 V.A.M.S.) RSMo. complete Without a showing applicable funds were available to be so used and a sufficient amount ivas definitely provided obligated the entire debt created relators’ relators contract, legal could not show a right compel clear respondent sign against bridge warrant road and funds. In event, the burden was on legal them to a my show and it is contract view that this could not be showing done without definite, uncondi application tional of the unencumbered balance, on which they rely, to the the entire debt created they their contract. This certainly Therefore, did not do. I would reverse and remand with quash directions to writ leave legal remedy relators to their suing on the contract. Gay Landau, Appellant, D. v. St. Louis Public Service Company, Corporation, Respondent, No. 44463 273 S. W. 255. Banc,
Court en November Rehearing Denied,