Little Prairie Special Road District v. Pemiscott County

*572 JAMES T. BLAIR, J. Appellant is a special road district and instituted this suit to recover funds arising from road taxes upon property within its limits and which, it is alleged, have been expended on roads now in other districts. Respondents are Pemiscot County and the county judges thereof and certain other special road districts. and their respective commissioners. To the petition respondents filed separate demurrers, which were sustained. Upon appellant’s refusal to plead further, judgment was entered and this appeal taken. ■ The petition alleges that appellant was organized under Article 6 of Chapter 102, Revised Statutes 1909, ■in November,' 1916, and alleges the organization and corporate character of the county ancl the several respondent road districts, and the official character of the several individual respondents. It is then alleged that the County Court of Pemiscot County levied taxes for county purposes, and out of the taxes so levied set aside and made twenty per cent thereof a “road and bridge fund; that there was collected by the collector of Pemiscot County, and paid to the treasurer of said county, on the property embraced within” appellant district, “as road and bridge funds for the year 1916 after the 16th day of November, 1916, including receipts from certain licenses, the sum of $1151.63; “that all of said sum belonged to said speqijal road district and should have been by the court apportioned and set aside for said district.” Like allegations, specifying gradually increasing sums were made as to the years 1917 to 1921, inclusive. The total of these amounts is alleged to be $9685.67, of which, it is alleged, only $2142.61 has been paid to appellant district, which leaves a ballance of $7543.06 unpaid; that in July, 1921, appellant district '¡filed 'a “written application with the county court for warrant to be issued in said sum of *573 $7543.06, the amount due, but the court refused to issue plaintiff or its commissioners a warrant for said amount, or any part thereof.” It is then alleged that'the county court had paid out the money due appellant to other road districts, under a mistake as to the governing law and under the belief that the money so collected constituted a county road and bridge fund and might lawfully be used anywhere in the county that the county court thought advisable; that the territory of the respondent road districts, prior to their organization as special road districts received a portion of the funds belonging to appellant district and they are joined for that reason; that appellant’s commissioners were endeavoring to accumulate funds for extensive and permanent improvements on its roads, and for that reason did not malm demand on the county court for warrants until the district was ready to use “the funds collected as aforementioned and belonging to said district, said commissioners believing the county court was complying with the law and apportioning and setting aside to said special road district the funds due said district under the law;” that May 29, .1916, the district voted bonds for $105,000 for road improvements ; that these were sold June 16,1919, and yielded $108,097.50, but the commissioners postponed road work on account of high prices and expended but little of the money until the summer of 1921; that contracts for improvements have now been let, and are being completed, sufficient to use the bond proceeds and. the sum sued for in this case “for which demand has been made on the county court in the sum o.f $7543.06, and for which defendant refused to issue warrant as aforementioned;” that the assessed value of Pemiscot County has been recently doubled, so that the funds belonging to appellant district, but “erroneously used in other districts” in the county, ‘ ‘ can be repaid to appellant district by the court making similar assessments for county purposes as heretofore,” and setting aside twenty per cent thereof as a road and bridge fund and by paying half of these sums collected in other districts over to appellant district un *574 til it has been reimbursed for the “funds due it which have been erroneously used as above mentioned;” that it is necessary, to accomplish this justly, that a court of equity ascertain what part of said funds was “received by the territory embraced within each of the” respondent districts.; that appellant is remediless at law; that mandamus will'not lie “for the reason that the amount to be paid from the different subdivisions of the county must be first ascertained, and if said amount should be first ascertained, then it would take at lease four suits at law to give plaintiff relief, so that plaintiff would be mulcted into a multiplicity of law suits and.without an adequate remedy;” and therefore appellant brings this suit in equity to prevent irreparable injury being.done to it “and in order to prevent defendant county court and the judges thereof from continuing to pay out to other road districts the funds due this plaintiff.” The petition then sets out Section 10818, Revised Statutes 1919, and then alleges that “the funds when so collected become a trust fund in the hands of said court to be held by said court until a. written application was made by the commissioners of the special road district upon the county for a warrant, and upon said application it was the duty of the county court to- issue a warrant for the funds so collected within the territory of said special road district; that the county court made a mistake of law/ when it paid out the funds belonging to” appellant district “to other road districts throughout the county as a general county road and bridge fund, and is making a. mistake of law in continuing to pay out the "funds due to said district, and in equity and justice the funds should-be repaid to” appellant district, “by and from the territory receiving the benefits of the money so used.” The prayer is that (1) the court ascertain and determine the amount of the funds belonging to appellant district expended in the territory embraced within each of the respondent special road districts prior to the time such district was organized; (2) the couirt order the county court and its judges to withhold from the road *575 and bridge funds thereafter collected in each of respondent districts a sum sufficient to repay appellant district the amount of funds belonging to it used in the territory within such respondent district, prior to its organization; (3) if it would be detrimental to respondent districts to require full payment in one year, then the court is asked to determine how much the several respondent districts can repay each year until the full amount for each is paid; (4) that the court decree that the county court shall set aside and pay over to appellant district each year from the road and bridge funds of each respondent district collected in its territory such sum as it is found right to be paid; and (5) that the county court and the judges and the clerk thereof be enjoined from paying to respondent districts the sums found to be payable out of their funds to appellant district; and (6) enjoined from paying any of the road and bridge taxes collected in appellant district’s territory to any except appellant district of its commissioners; and (7) for general relief. I. The statute formerly provided (Secs. 10841 and 10594, R. S. 1909'; Laws 1913', pp. 667, 668) and still provides (Secs. 10818, RÍ. S. 1919) that the part of the general county levy which is set apart for road and road and bridge purposes and which is assessed and collected on property within a special road district, together with a designated part of certain licenses, shall be placed to the credit of such road district and paid o.ut to the commissioners-or treasury of that district “upon written application by said commissioners.” [Carthage Special Road District v. Ross, 270 Mo. l. c. 82.] II. In the case of Holloway to use v. Howell County, 240 Mo. 601, the facts were similar to those in this case. Section 10594, Revised Statutes 1909, contained much the same provisions as those of the section upon which appellant now relies, both as to the property tax and the proceeds of licenses and the demand required to be made upon the county court by the special district. In *576 that case the special road district had made no demand for several years, and it was not alleged that contracts had been made during those years which would require the use of the part of the county revenue apportionable to the district, and it was held that such district could not permit the fund to accumulate, for years, without previous demand therefor, and then enforce the payment of the total; that the court had the power to transfer the fund like any other into which it had, by statutory command, divided the county revenue. Section 10594, Revised Statutes 1909, required the payment to the special road district only “as the board of commissioners of such special road district shall make application to such county court,” and this was pointed out'in the Holloway Case. In the later statute, which now governs, there is no material change with respect to this feature. The special fund is now required to be paid out “upon the written application by said commissioners of such special road district or districts.” The fact that the taxes so collected are required to be apportioned and “set aside to the credit of such special road district or districts ’ ’ gives no greater title than was had under the old section, 10594. Under Section 10481, Revised Statutes 1909, the road taxes were required to be “placed to the credit of the road district from which said tax was collected” and paid out to the overseer of said district on the warrants of the county court. All the taxes were divided into separate funds. [Sec. 12866, R. S. 1919.] It has not been thought that such provisions prevented transfers of funds in the manner and in the circumstances indicated in the Holloway Case. That decision is applicable to' this case and is decisive of it, .unless the taxes of ■ 1921,, the year this suit was begun, are outside of its principle. If they are, it is because the time for demand had not expired when this suit was begun. Since that time had not expired those taxes could have been reached by the statutory method. It is not to be presumed that the county court Would have refused to do its lawful duty. If it had so refused, the remedy was pointed out by the Ross Case cited in Paragraph I. The judgment is affirmed. All concur.