State ex rel. Hopper v. Cottengin

BRACE, P. J. On September 16, 1898, the relator obtained judgment against Wright county for the-sum of $1,776.45, and on May 30, 1899, instituted this proceeding by mandamus in the circuit court of said county to compel the respondents, who are the judges-of the county court and the treasurer of said county, the former to order payment of said judgment and draw a warrant on the county treasurer therefor, and the latter to pay the same out of a fund in said treasury derived as follows: At the May term, 1897, of said county court, and on May 7, 1897, the following order was made by said court: “Whereas, the courthouse situated at Hartville, the county seat of Wright county in the State of Missouri, was destroyed by fire, and -the said county of Wright has no courthouse, and it is necessary for the transaction of public business to erect a' courthouse forthwith and the said county of Wright has no means with which to erect the same but by an issue of county bonds,, and “Whereas, the said county of Wright has no-bonded indebtedness and the bonded indebtedness hereafter to be issued under the provision of our statutes-authorizing the erection of a courthouse, will not equal five per cent of the assessed valuation of the real and personal property, in said county of Wright; ‘ ‘ Therefore, it is ordered by the county court of the said county of Wright, that county bonds, of the [133] said county of Wright, in the sum of $10,000, he issued under and in pursuit of the provisions of sections 3107, Revised Statutes of Missouri for 1889, for the purpose of rebuilding a courthouse at Hartville, the county seat of said county of Wright, said bonds to be of the denomination of $500 each, and numbered from one to twenty, both inclusive, payable in fifteen years from July 1, 1897, bearing six per cent interest per annum payable annually, principal and interest payable in lawful money of the United States, at the office of the county treasurer of said county of Wright, interest to be evidenced by coupons thereto attached numbered seriatim from one to fifteen, both inclusive; said bonds shall be signed by the president of the county court, countersigned by the county clerk with the seal of his office affixed and shall have printed on the back thereof, a copy of the order of the county court under which said bonds were issued, and the coupons thereto attached to be countersigned by the county treasurer. It is therefore ordered by the court that for the purpose of paying interest on said bonds there shall be levied on the taxable property in the said county of Wright for each year until all the interest on said bonds is paid the sum of three cents on the $100 valuation. “And it is further ordered by the court that for the purpose of creating a sinking fund to pay said bonds at maturity there shall be levied upon the taxable property of said county of Wright in each year until the principal of said bonds is paid, three cents per $100 valuation, which shall be collected and paid into the treasury and held as a sinking fund to pay the principal of said bonds and to be used for no other purpose. ’ ’ In pursuance of this order a tax of two cents on the one hundred dollars was levied for said sinking fund and three cents on the one hundred dollars for said interest fund for the years 1897 and 1898, and the evidence tends to prove that on account thereof there was collected and paid into the treasury for the year 1897, the sum of $1,253, and for the year 1898 the sum of $1,100; that at the time this proceeding was instituted, [134] there was of the moneys so collected, in the' treasury, and to the credit of the sinking fund the sum of $550.65, and to the credit of the interest fund the sum of $615, and that there was loaned out the sum of $770, making a total of $1,935.65, which is the fund the relator contends is applicable and which he seeks to have applied to the payment of his judgment. The ground of this contention is that the bonds and coupons, issued in pursuance of the order of May 7,1897, are illegal and void, being, as it is claimed, a debt created in excess of the limitations of sections 11 and 12 of article 10 of the Constitution, and that the taxes levied and collected to provide a fund for the payment of the principal and interest thereof were so levied by the county court without any order of the circuit court as required by sections 7653 and 7654, Revised Statutes 1889. Hence, the fund aforesaid in the county treasury so collected in this manner and for these purposes, is there without warrant of law, is not appropriated to any legal purpose, and is therefore applicable to the payment of relator’s judgment. The conclusion drawn by the relator in this contention is such a palpable non sequitur from the premises laid down in his proposition that it becomes unnecessary to consider the serious questions involved in his premises, in which other persons not parties to this proceeding are deeply interested, and who ought to be heard in any case affecting their rights. The writ of mandamus is to a certain extent a discretionary writ and ought not to issue unless there is a clear legal right, and will be denied in doubtful cases, or when it would in a collateral matter decide questions of importance between persons not parties to the pro-' ceeding upon whom its enforcement would entail great hardships and difficulties. [19 Am. and Eng. Ency. of Law (2 Ed.), p. 753, b.] The judgment of the relator was a general judgment against the county. His only right was to have funds belonging to the general revenue fund of the county, not otherwise appropriated, applied to the pay [135] ment of his judgment. ' The fund in question was no part of the general revenue fund of the county. It was a special fund raised for a particular purpose, and neither the county court nor the county treasurer had any right to apply a dollar of it to any other purpose. If, on. the one hand, the bonds are valid, and the taxes were legally levied, the bondholders are entitled to it. If, on the other hand, the bonds are invalid, or the taxes were illegally levied, the taxpayers from whom it was illegally and wrongfully wrested are entitled to it. In neither event is the county entitled to it, and in neither event is it applicable to its general indebtedness. The county court and the treasurer could not so rightfully apply it. The circuit court, on the facts of the case, correctly refused a peremptory writ commanding them so to do, and its judgment is affirmed. All concur.