State Ex Rel. Strong v. Cribb , 364 Mo. 1122 ( 1954 )

WESTHUES, C.

Relators instituted a mandamus proceeding to compel A. R. Cribb, Presiding Judge of the County Court of Macon County, Missouri, to sign a warrant in the sum of $4,494.75. The trial court ordered the writ to be issued and Cribb appealed.

The $4,494.75 was due under a,contract dated December 8, 1952, the subject matter of which was road machinery. Relators contend the County Court leased the machinery for a period of three years, that is, for 1953, 1954, and 1955; that the amount due for each year was payable in advance: on December 15,1952, $4,494.75, on December 15, 1953, $4,584.76, and on December 15, 1954, $5,347.27, for the ensuing years respectively. A warrant was ordered drawn for the first payment due in December, 1952. ' Two of the judges signed the order but the Presiding Judge, A. R. Cribb, refused to sign the order and also refused to sign the warrant. His defense was that the agreement was void under the provisions of the County Bridget Laws, Title -6, Chapter 50, VAMS, and Sec. 26(a) of Article VI of the 1945 Constitution. Respondent Cribb contends in this court that the alleged “Lease Agreement” was in fact a sale and not a rental of the road equipment; that the payments were in excess of the budget for 1952 and also that the alleged “Lease Agreement” anticipated revenues for 1953 and 1954 and, therefore, the agreement was void and a violation of the Budget Laws and the Constitution.

Our jurisdiction of this appeal was questioned during the oral argument. We find that in the case of State ex rel. Ginger v. Palmer, Mo., 198 S.W. (2d) 10, issues'similar to those on this appeal were involved. That ease was transferred to this court by the St. Louis Court of Appeals (194 S.W. (2d) 736) on the ground that the interpretation of the Budget Law was in issue. This court en banc assumed jurisdiction and decided the case on the merits. In the case now before us, we are called on to interpret various sections of the Budget Law and, therefore, the appeal was properly lodged in this court for the reason that the revenue laws of the state are directly concerned. In State ex rel. Martin v. Childress, 345 Mo. 495, 134 S.W. (2d) 136, l.c. 138 (2,3), the court approved the following statement taken from State ex rel. Hadley v. Adkins, 221 Mo. 112, l.c. 118, 119 S.W. 1091, l.c. 1093: “ ‘that the term “revenue law” covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy, and collection of it * * ” See also State ex rel. Pullum v. Consolidated School Dist. No. 5 of Stoddard County, 361 Mo. 114, 233 S.W. (2d) 702.

Appellant Cribb, in his brief, states his position as follows:

“In this case the respondents are attempting to avoid or evade the County Budget Law, Ch. 50, Secs. 50.670-50.740 RS 1949, by an arrangement they choose to term a ‘Lease Agreement’. We believe that this Court should not permit any such avoidance or evasion.

“Appellant submits that the ‘Lease Agreement’ provides for one or the other of two alternatives:

“First — It provides for the payment of $16,026.78 for certain equipment; or

“Second — It provides for the payment of County funds in 1953 and 1954.

“As we will point out herein, the fir si alternative makes the agreement void as the payment exceeds the 1952 budget, and the second alternative makes the agreement void as it anticipates County revenues for future years. ’ ’

Romet Bradshaw, the County Clerk of Macon County, and the County Treasurer, H. B. Clarkson, were the principal witnesses. From their evidence and'the county records under their control, we learn the following facts: The fiscal year of 1952 was commenced with a “carry-over” of $115,533.98. There were outstanding obligations so that the unencumbered balance was $55,471.95. The estimated revenue for 1952 was placed at $250,588.71. The estimated expenditures for 1952 were fixed at $250,588.7.1. We do not think it necessary to go into details as to the expenditures during the year 1952.. We deem it sufficient to show the financial standing at the end of the year. Leaving out of consideration the contract in question in this suit, there was a balance in the treasury of Macon County at the end of 1952 in the sum of $98,941.11. That was explained by the following examination of the witness, Romet Bradshaw:

“Q. Now, continue to leave that out. Was there a balance, and, if so, how much, in the treasury of Macon County, Missouri, made up of the 1952 revenues and the 1951 balance that was carried over? Is that this sum of $98,941.11 that you gave me?

“A. That would be the Treasurer’s balance. That would be the Treasurer’s balance as soon as he gets the Collector’s turn-over.

“Q. Well, the Collector’s turn-over included the months of November and December, did they not ?

“A. That’s right. ■

‘ ‘ Q. Which came in later, but were 1952 reirenues ?

“A. That’s right.

“Q. Well, does this figure of $98,941.11 include the $39,152.00 of protested warrants ?

“A. That does. They have been deducted. They have been paid before that figure is arrived at.

“Q. When this balance of $98,941.11 is reached, what other claims or obligations or orders of any kind incurred by Macon County in 1952 remain unpaid ?

“A. There would be none. They would all be paid.

“BY THE COURT: (To Mr. Rendlen) Is that your understanding of it ?

“BY MR. RENDLEN: Yes, sir.

“BY THE COURT: (To Mr. Hess) Is that your understanding of it ?

“BY MR. HESS: Yes, sir, Judge, on the basis of Mr. Bradshaw’s figures.”

Further examination showed the following:

“Q. (By Mr. Rendlen) Now then, as I understand you, at the end of the year you had, the Treasurer had a balance in the Common Fund of some $29,000.00, and in Class 3 the sum of $6,000.00?

“A. Yes, sir.

“Q. Or a total of around $35,000.00?

“A. Yes, sir.

“Q. Now then, one further thing: You began the year 1952 with a carry-over of $115,533.98 ?

“A. Yes, sir.

“Q. And you ended the year of 1952 with a carry-over of $98,941.11?

“A. I believe that’s right.

“Q. So that you spent $16,592.87 more than you received during 1952?

“A. Yes, sir.”

It is our understanding from the evidence that the last question referring to the amount received during 1952 did not include the $55,471.95 of unencumbered balance on hand at the beginning of 1952. It is evident that the over-all expenditures for the year did not exceed the income for 1952 within the meaning of Sec. 26(a) of Article VI, Missouri 1945 Constitution. That section reads as follows:

“Section 26(a). No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.” (Emphasis ours)

Appellant Cribb, in his brief, attempts to demonstrate that the Budget Law was violated in that the road and bridge fund, which is Class 3 of Section 50.680, VAMS, was overdrawn or overspent. If the total amount ($14,426.78) agreed to be paid to Relator under the contract for the three years be charged against the amount of the budget of 1952 in Class 3, that.budget item would be overdrawn. An exhibit in evidence showing the County’s financial standing at the end of 1952 disclosed a balance of $12,154.83 in Class 3.

While Mr. Bradshaw, the County Clerk, was testifying and being examined as to whether the amount allotted to Class 3 had been overspent, the witness made the following statement:

“A. Well, Your Honor, may I answer it this way! I know certain bills were there, the amount of which I did not know. I say it this way in order to — well, I want to protect my budget, so to speak — up until this time all lease agreements, with the exception of one, to my knowledge, had been paid out of Class 6 for the year but we are now drawing against 3; therefore, I still contend that we didn’t overdraw Class 3.”

There is definite evidence that some items of expense generally charged to Class 3, the road and bridge fund, were paid out of Class 6 funds. From the cross-examination of the County Clerk, we have the following:

“Q. (By Mr. Hess) Mr. Bradshaw, with respect to Respondent’s Exhibit 2 and the figures concerning the lease payments in February and March, 1953, in the amount of $16,930.72, when was that payment made, or those payments made ?

“A. I believe the warrants were drawn the last week in January. I am not quite certain.

“ Q. Some time in January of 1953 ?

“A. That’s right.

“Q. From what were they paid?

. “A. They were paid from 1952 revenue out of Class 6.”

■Was it a violation of the Budget Law to pay such items out of the fund in Class 6 ? We do not think so. That portion of Sec. 50.680, supra, designated Class 6, reads as follows:

“Class 6. After having provided for the five classes of expenses heretofore specified, the county court may expend any balance for any lawful purpose; provided, 'however, that t-he county court shall not ■ incur any expense under class six unless there is actually on hand in cash funds sufficient to pay all claims provided for in preceding classes together with any expense incurred under class six; provided, that if there be outstanding warrants constituting legal obligations such warrants shall first be paid before any expenditure is authorized under class six. ”

It will be noted that the funds assigned to Class 6 may be expended with certain restrictions for “any .lawful purpose.” (Emphasis ours) One of the restrictions imposed is that “there is actually on hand in cash funds sufficient to pay all claims provided for in preceding classes together with any expense incurred under class six; * * In other words, the funds in Class 6 may not be depleted unless the funds in the other classes are sufficient to pay all claims contracted to be paid out of the funds in such classes. The intention of the Legislature, as evidenced by the provisions supra, established Class 6 somewhat as a guarantee that all claims in the preceding classes shall be paid. It is common knowledge that unforeseen events often occur which require expenditures in excess of the amount assigned to a certain class such as Class 3, the bridge and road fund. If the budget for such class is not sufficient to take care of the unforeseen expense, the county court may use money in Class 6, provided there is a sufficient sum in that class that is not subject to the restrictions mentioned in the statute. It is apparent that that was done in this case when it became evident that Class 3 expenditures might exceed the sum allocated to that class by the budget.

The object of the constitutional provision, Sec. 26(a) of Article YI, and the “County Budget Laws,” supra, is to compel counties and municipalities to operate on a cash basis. In other Avords, the governing body may not obligate the county or municipality in a sum in excess of the revenue proAÚded for any one year. The sum available to be spent in any one year is the revenue provided for that year “plus any unencumbered balances from previous years.” Sec. 26(a), supra. We rule that the County Court of Macon County in 1952 did not, in the matter of expenditures, violate the provisions of the Budget LaAAr.

We need not pass on the question of whether the so-called “Lease Agreement” was in fact a sale and not a rental of the road eqAÚpment mentioned in the contract. Granting' for the sake of argument that it was a sale and not a rental, as appellant contends, there remained in the county treasury, at the end of 1952, a sum unencumbered sufficient in amount so that the County Court, constituting the governing- body for the year 1952, could, if it saAV fit, pay the entire amount due under the contract out of the unencumbered balance. Appellant says this court in the past has required “strict compliance with the County budget law.” In the case oE Adair County v. Urban, Mo., 250 S.W. (2d) 493, l.c. 495 (2), cited by appellant, we cited a number of cases which declared the law to be that a strict compliance with the Budget Law was required. We have followed that rule in deciding this case.

The only defense presented by the Presiding Judge, appellant Cribb, was that the signing of the warrant constituted a-violation of the Budget Laws. The trial court ruled that the defense was without merit. We have found that the trial court was correct. Therefore, appellant as Presiding Judge of the County Court was required by law (Sec. 50.190, RSMo 1949, YAMS) to sign the warrant. The act of signing the warrant which had been ordered to be drawn by the County Court was a ministerial act on part of appellant as Presiding Judge and mandamus was the proper remedy. 55 C.J.S. 125, Sec. 72.

The judgment of the trial court issuing the' peremptory writ of mandamus is hereby affirmed.

It is so ordered.

Leedy, Acting C. J., Hollingsworth, Ellison, JJ., and Anderson, Special Judge, concur; Hyde, J., dissents; Dalton, J., not sitting.

PER CURIAM: — The foregoing opinion by Westhues, C., is adopted as the opinion of the Court en Banc.