State ex rel. Cameron Special Road District v. Everett

BROWN, J. — On January 22, 1912, the relator instituted this action of mandamus in this court to compel respondents as judges of tbe county court of Clinton county to issue a warrant upon tbe treasurer of said county in favor of relator for tbe sum of $1000. Tbe object of tbe action is to determine whether or not the relator as a special road district .organized under Art. 6, Ch. 102, R. S. 1909, is entitled to receive from Clinton county the special road and bridge taxes levied and collected upon property within said special road district during the years 1909, 1910 and 1911, pursuant to the provisions of Sec. 22, Art. 10, Constitution of Missouri (adopted in 1908), and Secs. 10482 and 11769, R. S’. 1909, enacted to put in force said constitutional provision. The relator charges that during each of the years 1909, 1910 and 1911, more than $1000 special road and bridge taxes were ■ levied and collected by Clinton county under the provisions of the above mentioned laws on property situated in said special road district; and that during said years relator through its officers made frequent demands upon respondents for the money arising from said special taxes, but that respondents refused to audit relator’s claims or to draw warrants in its favor therefor. In relator’s petition the amount levied and collected as general road taxes under Secs. 10481 and 10595, R. S. 1909, is not distinguished from the amount alleged to have been collected as special road and bridge taxes under Secs. 10482 and 11769; however, this action was tried by both parties on the theory that only the special road and bridge taxes were in dispute, and the case will be so treated in this opinion. — 714 — In their return, respondents admit that relator is a special road district; admit the levy and collection of the special road and bridge taxes as charged; and further admit that none of said taxes were credited to or received by relator. By way of defense or justification for withholding said taxes from relator, respondents assert that they appropriated and expended all of said special road and bridge taxes so collected in building and repairing roads and bridges in Clinton county, Missouri, and allege that relator’s claim to said special road and. bridge taxes is “without authority of law,'and is not a matter of right.” Relator’s reply is in the nature of a demurrer to respondents’ return; and prays the issue of a peremptory writ. Clinton county is not under township organization. The pleadings do not charge that respondents are withholding or refusing to cause warrants to be issued for any other funds which relator, as such special road district, is entitled to receive from Clinton county during said years. The decision of this case turns upon the proper construction of the amendment to our State Constitution adopted in 1908 (Sec. 22, Art. 10), and Secs. 10482 and 11769, R. S. 1909, intended to put in force the powers conferred upon county courts by said constitutional amendment. Respondents earnestly insist that Sec. 10594, R. S. 1909, governs and controls the manner in which the special road and bridge taxes collected under the aforesaid constitutional amendment shall be distributed and expended. The cases of Green City v. Martin, 237 Mo. 474, and Holloway v. Howell County, 240 Mo. 601, are cited to support this contention. The case of Green City v. Martin, supra, construes Sec. 11767, R. S. 1909, and holds that said section was not intended to apply to special road and — 715 — bridge taxes authorized by the constitutional amendment of 1908. The case of Holloway v. Howell County, supra, holds that while a special road district may compel a county court by mandamus to draw warrants in its favor for any moneys due such district from public taxes collected by the county, a suit in equity for an accounting will not lie against the county on behalf of such district after the end of the fiscal year in which such taxes were collected. Neither of these cases defines how the special road and bridge fund collected under the constitutional amendment of 1908 shall be distributed; and what was said on that point in those cases is only obiter. Sec. 10594, R. S. 1909, directs county courts in counties where special road districts are located, to annually draw warrants in favor of the officers of such special road districts for such proportion of the entire county taxes collected on property in such districts as the amount appropriated and expended for road and bridge purposes in the entire county shall bear to the total revenue of the county. This is but an indirect way of saying that all the road and bridge taxes collected on property within the special road districts shall be turned over to the officers of such districts. This would necessarily be the result where county courts appropriate and expend annually all taxes which they collect for road and bridge purposes. County courts by general law, sections 11527 and 11528, are forbidden to transfer moneys from a fund for which they are levied and collected to a fund for which they were not collected, except in cases where the purpose for which such fund has been levied and collected no longer exists — a condition not likely to arise in regard to the road funds of Missouri. After careful consideration of said section 10594, we are convinced that it was never intended to govern the distribution of taxes levied and collected under — 716 — Sec. 22, Art. 10, Constitution of Missouri, adopted in 1908. In the first place, said section 10594 was enacted in 1895 (Laws 1895, Sec. 17, page 255), when the General Assembly could not have possessed any specific intent regarding taxes which the Constitution did not then permit to be levied; and, second, the last clause or proviso of said section 10594, supra, expressly prohibits the officers of special road districts from expending annually on public roads a greater amount of taxes than twenty cents on the $100 valuation of property in their respective districts. This was all the property taxes which could have been legally collected for road purposes in such districts at the time section 10594 was enacted. Since the Amendment of'the Constitution in 1908, county courts may levy and collect forty-five cents on the $100 valuation of property in special road districts (twenty cents under the general law and twenty-five cents under section 10482, supra); but if we follow the plain letter of section 10594, not more than four-ninths of the taxes thus levied and collected could be expended on the roads within such special districts. Relator’s position is that a part of said section 10594, supra, should be followed and the remainder repudiated. It is obvious that said last named section does not control the” distribution of the special road and bridge taxes authorized by the constitutional amendment of 1908. We must therefore look elsewhere for the legislative intent regarding the distribution of said taxes. Section 11769, supra, directs how such special taxes under the constitutional amendment of 1908 shall be levied in counties under township organization; but as Clinton county is not under township organization, that section throws no special light on the disposition of the disputed funds. Sec. 10482, .R. S. 1909, enacted to put in force the constitutional amendment of 1908, reads as follows: — 717 — “Iii addition to the levy hereinbefore authorized to be made, the county courts of the several counties of this State, other than those under township organization, may, in their discretion, levy and collect, in the same manner as State and county taxes are collected, a special tax not exceeding twenty-five cents on each one hundred dollars valuation, to be used for road and bridge purposes,-but for no other purpose whatever, and the same shall be known and designated as ‘the special road and bridge fund’ of the county.” This section does not contain any provision which directly forbids county courts from turning over to special road districts a part or all the funds collected on real and personal property in such districts, but it certainly contains no phraseology placing such a duty upon county courts. The last three words of this section imply an intent that the taxes raised under the provisions of that section shall be a county fund not under the control of the special road districts. Some reason for such a legislative intent is found in Sec. 10591, R. S-. 1909, which casts upon counties the expense and duty of making and repairing all bridges in special road districts where the cost thereof exceeds $100. Counsel have not called our attention to any other statute which would enable the county courts to raise funds for the purpose of building bridges costing more than $100, and we are not aware of any provision for raising such 'funds except a certain percentage of the dramshop licenses which may be appropriated for that purpose. [Sec. 7199, R. S. 1909.] Section 10594, supra, directs that one-half of all moneys collected by counties as licenses on dramshops situated within special road districts shall be paid to such districts. It cannot be successfully contended that this provision for dividing the money derived from dramshop licenses between the county and districts, indicates a legislative design that such districts — 718 — shall have all taxes collected within their borders. If we were to adopt relator’s construction of the statute, counties might be required to expend many thousands of dollars in special road districts for the construction of bridges therein (costing more than $100), and at the same time be required to turn over to such districts all moneys collected therein. It will hardly be supposed that the Legislature intended any such result. In our general scheme for the maintenance of public highways, the expense of constructing safe,durable bridges, and also permanent, level and solid roads, is an important factor. County courts have been vested with general superintending control over the matter of constructing and repairing bridges. [Secs. 10486 and 10490, R. S. 1909.] Through the highway engineer, they may at the expense of their respective counties let contracts for grading, draining, surfacing with stone, gravel or other materials, the public roads of their respective counties. [Secs. 10564 and 10566, R. S. 1909.] The making of these permanent improvements calls for money; and county courts can only raise money by taxes and licenses; therefore, it is fair to assume that the G-eneral Assembly of 1909 intended to leave the special road and bridge taxes collected under section 10482, supra, under the control of county courts to pay for such improvements. Some counties probably have all the bridges they need, while others need many bridges, but have none. Whenever a county has all the bridges it needs and also such permanent roads as afford full accommodation for travel, then whatever road and bridge taxes are collected under section 10482, supra, should, according to principles of equity, be expended all over the county wherever needed, without discrimination against any part thereof; and in such cases it would be, within the spirit of the law for county courts to — 719 — turn over to special road districts any funds collected on property within such districts to he expended by the officers of such districts in keeping* in repair the public roads under their control. In many counties it will no doubt be wise to expend all or a large percentage of the special levy authorized by section 10482, supra, in constructing bridges or permanent roads in one part of the county in one year, and in a subsequent year apply the moneys thus collected in another part of the county, until all its citizens are supplied with good roads and safe bridges. The discretion to expend the special road and bridge fund in the manner which will be most conducive to the general welfare of the inhabitants of the counties has been invested in county courts elected by the people; and it is a well-known rule of law that where judicial officers possess discretion as to how their duty shall be performed, their discretion will not be interfered with by the writ of mandamus. [Miltenberger v. St. Louis County, 50 Mo. 172; Dunklin County v. District Court of Dunklin County, 23 Mo. 449; State ex rel. v. Fort, 180 Mo. 97; State ex rel. v. McKee, 150 Mo. 244.] There being no law to sustain the issue of a peremptory writ of mandamus as prayed, said writ is denied and the alternative writ quashed. Kennish, J., concurs; Valliant, G. J., and Ferriss, Graves, Woodson and Lamm, JJ., concur in the result.