& CO.V. KNOX COUNTY.
& Co. v.
(Oircuit Oourt, E. D. Missouri, N. D
CO'("NTIES-:-W4RRANTS-ExCEEDING STATUTORY LIMIT OF INDEBTEDNESS.
In order'to defeat an action on county warrants, by Const. Mo. art. 10; that "no county * * * shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters," etc., it is not sufficient to show merely that during the years' in which the warrants sued on were issued the expenditures exceeded the county revenues [or those years, but it must be shown, in addition. that the limit had been reached before the indebtedness was incurred for which the 'warrants were issued,
Rev. St. Mo. 623, 624,1061, 1184. 5376, having.made it the duty of the va· rious officers to provi9.11 suitable books and stationery at the expense of the county 'for the transaction of business in their offices, debts contracted for sucbpurposes by those officers and not by the county court, the ordinary contractillg; a,gent of the counW. are not within the purview of the constitutional :PI'0V1S10n above quoted.
At Law. .A:greedcase. Taylor & PoUard, for plaintiff. G. R. Balthrqpe and W. O. Hollister, for defendant.
THAYER,J. This is an action on 49 county warrants, issued during the years from 1882 to 1886, both inclusive, in payment for books and stationery sold aild to Knux county the instance and re'quest of various. county officers, and for public use, The defense is that when the warrant"! sued upon were issued by the county court of Knox county ,the county court had drawn warrants in exces!l of the total of the county for. the years during which the warrants were respectively issued, and that the debt sued for was for that reason contracted in violation ofsection 12, art. 10, Const. Mo., which provides that "no county * * * shaH he allowed to become iudebted in any manner, or for apy purpose,· to .an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters 'thereof, voting at aneIectiQn to be held for that purpose." The case has been submitted upon an ll,greed statement of facts, from which it appe!J.rs that the books and stationery in question were furnished for public use at the instance and request of the probatej\}dge, the clerks of the county and circuit court, and the sheriff and collector of the county, and that the same "were suitable and necessary for the officers in their official capacity to whom they were .Bold." It also appears that the total warrants issued by Knox county each year from 1882 to 1886, both inclusive. exceeded therevehue derived for the respective years from the highest rate oftaxation which the law permits, to-wit, 50 cents on each $100 of valuation; but that, deducting the warrants drawn on the "pauper fund" the warrants drawn in anyone of SI,lld years and "road and bridge did not exceed the revenUe for said year. JUdgment must be rendered for. the plaintiff for the full amount claimed in each count, (thans, for tUI:! amount,ofthe wl;l:.rrant described therein and interest at 6 per cent. per,annum>'i'rom ,the dateoft4e.aHegedpresep.tati01:1,)for two rellS()us,:;-, .
In the first place, there is nothing in the agreed statement to show that the indebtedness sued for was illegally contracted, even if it be conceded that the constitutional inhibition (section 12, art. 10, 8upra) applies or has reference to such an indebtedness. The only fact admitted by the agreed case is that warrants were issued each year from 1882 to 1886, inclusive, in l::xcess of the total county revenue for the respective years, provided warrants drawn on the "pauper and road and bridge funds" are taken into account, and not otherwise. But whether, when the several items of indebtedness sued for were contracted, and the various warrants were drawn, the limit 'bf legal indebtedness had then been rl::ached, and the county had exhausted its power to contract further indebtedness, is not shown. The stipulation falls short of establishing the facts alleged in defimdant's special plea. In this state, as is well known, county courts are required to subdivide the total county revenue into five different . funds, and each fund must be devoted to the payment of the particular class of expenses for which it is set apart, and to no other. Warrants drawn by, the county court must also specify the fund on which they are drawn. Rev. St. Mo. §§ 6818-6821, both inclusive. By section .5370, .county treasurers are required to keep a record of warrants presented against the respective funds,and to pay them out of the funds on which they drawn in the order of presentation, with the proviso that warrants issued to pay for "services that are usual, and for all expenses. necessary to maintain the county organization," must be paid in preference to warrants that are otherwise drawn; that is, to pay for services or ex.,. penses that are ofan unusual character. It is evident, therefore, that when a county incurs an indebtedness exceeding its income or revenue for the year, and some part of it is for that reason invalid, it must be that part (if any) which may be appropriately termed an "extraordinary indebtedness," or that part which was contracted after the Iimitoflegal indebtedness had been reached. The debt sued for in this case was not an unusual debt for a county to contract. On the contrary, it was an obligation such as the county was compelled to incur annually. Its officers could not discharge their official duties without suitable books and stationery. Therefore it is important to know when the various items of indebtedness sued for in this case were contracted, and to what extent the county had incurred liabilities up to that time.. Without such proof:':'-anel the agreed case is silent on that point-the court cannot say that the county had exhausted its power to incur further debts, when a single item of the bill sued for was MId and delivered. It will certainly not be presumed that the defendant contracted a debt in violation of law. The burden of showing such fact rests on him who alleges it. In the second place, it must be helel that the indebtedness now under consideration is not within the purview of the section of the constitution above quoted, (section 12, art. 10,) because it was an indebtedness which the various county officers who contracted it were bound to incurin the proper discharge of their official functions. It is made the duty of the yarious officers at whose instance the books and stationery involved in this case were supplied "to provide suitable books and stationery" at the expense of the county for the transaction of. business in their several 0(-
HENNESSY". CITY OF ST. PAUL.
flces. Rev. St. Mo. §§ 623, 624,1061,1184,5376. The debt was contracted by those officElrs, and not by the county court. In the case of Potter v. Douglas Co., 87 Mo. 240, it was held that the constitutional prohibition now in question was leveled against a county becoming indebted through the action of the county court,-the ordinary contracting agent of the county,-and that it had uo application to an obligation cast on the county for the transportation of a prisoner to an adjoining county, and for his board while there confined in jail, inasmuch as the law made it the duty of the sheriff to take prisoners to an adjoining (Jounty, and there confine them, when there was no jail in the county where the offense was committed. In Rollins v. Lake Co., 34 Feel. Rep. 845, Judge BREWER held that a provision in the constitution of the state of Colorado, very similar to the one now under consideration, did not forbid a county ofthat state from becoming indebted for witness', juror's, and sheriff's fees, in excess of the amount limited by the constitution, because the laws of the state made it obligatory on counties to pay all suph fees. It seems, therefore, that it is settled, both in this state and in this circuit, that ,constitutional provisions limiting the amount of county indebtedness that may be incurred are to be construed as having reference to that class of debts which it is optional with the county court or other governing body of the county to incur, and that they are not to be taken as having reference 'to compulsory obligations cast on the county by operation of law. as where a county is required to pay the ordinary .expenses attending the maintenance of courts and the enforcement of the laws within the county, or where particular officers are required to provide at the expense ofthe county the necessary supplies for the proper discharge oftbe'duties of their office. As experience has heretofore shown that (Jounties and municipalities generally become embarrassed by lavish expenditures which they were under no legal obligation at the time to make, or that might at least have been deferred to a more convenient season, the construction adopted in the cases above cited is reasonable, and will most likely result in accomplishing the purpose had in view by the law-maker. Judgment will accordingly be entered for the plaintiff.
CITY OF ST. PAUL.
(Circuit Court, D. Minnesota. February 6, 1889.)
St. Paul Mun. Code. art. 32, p. 41, which confers upon the common council "full power and authority to rel1;lOve and abate any nuisance injurious to public health or safety, and to remove. or require to be removed. any build· ing which. by reason of dilapidatiou. defects in structure, or other causes, mayor shall have become imminently dangerous to life," etc.. does not can· fer upon the council the exclusive jurisdiction to determine what constitutes a nuisance.,but only authorizes the abatement of that whicl\ is in fact a common nuisance.
On motion for new trial.