Washington County ex rel. School Fund of Township 36, Range 2 East v. Boyd , 64 Mo. 179 ( 1876 )

Henry, Judge,

delivered the opinion of the court.

In November, 1868, and for a long time prior thereto, the defendants were justices of the county court of Washington county. Robert N. and William C. Martin had purchased the sixteenth section of township 36, range 2 east, for which they had with sureties executed their bond to the county for about five thousand dollars ; and at the November term, 1868, of said county court, an order was made by said court directing a suit to be instituted in behalf of said county to the use of said township against said Robert N. and William O. Martin and others, to enjoin them from cutting and wasting the timber on said land.

Tiie defendants, Boyd and Johnson, with D. E. Perryman and Harvey S. Hutchinson, in behalf of said county for the benefit of said township, executed the bond required by the statute in such cases, and at the April term of the circuit court of Washington county the injunction was by the court dissolved, and damages assessed against the makers of said bond at five hundred dollars, and judgment rendered against them for that sum and $63.08 costs, which was paid by defendant Boyd. At the November term, 1870, of said county court, the purchase money for said land, $5,446.90, having been paid, the court made an order upon the treasurer of said county to pay to said Boyd, out of the purchase money so received, $563.08 so paid by him on said judgment, and this suit is brought to recover the money so paid to Boyd from the defendants, the members of said county court.

The petition substantially states the foregoing facts, and charges that the order upon the treasurer was wilfully, illegally and knowingly made.

There was a demurrer to the petition, which, being sustained, plaintiff has brought the case here by writ of error.

There is no fraud alleged against the defendant, nor is there any allegation that the suit instituted against the Martins was recklessly undertaken, or that it was productive of no good results to the township for whose benefit it was commenced ; and the only question presented by the record for consideration, necessary to notice, is the legality of the action of the court in reimbursing Boyd out of the funds of the township.

The principal proposition discussed in the appellant’s brief is, that the county court is a court of limited jurisdiction and anything done in excess of its jurisdiction is coram non judice and void.

We may admit the general proposition, but insist that it has-no application to this case.

It has been repeatedly held by this court, that there is nothing judicial in the functions exercised by the court in regard to these school lands. (Ray Co. to use, &c. vs. Bently, et al., 49 Mo., 236; Town Board of Education, etc. vs. Boyd, et al., 58 Mo. 279; Cedar Co. vs. Johnson, et al., 50 Mo, 227; Marion Co. vs. Moffet, 15 Mo. 406.)

In the ease in 15 Mo. supra, Judge Scott said, “ The school lands were vested in. the Srate in trust for the benefit of the inhabitants of the township in which they are respectively situated. The State vested in the county court the management of this trust. Those courts are the agents of the State for this purpose.” Bliss, J. in Cedar Co. vs. Johnson et al. said: The county court, it is true, has the custody of these school funds, yet not for the county, but for the people of these several districts. The court is so far not a county agent, etc.”

In 49 Mo. 336, Wagner, Judge, said : “In the management and control of the fund the county court acts piirely in an administrative capacity, not as the agent of the county, but in performance of a duty specially devolved upon it by the laws of the State. There is nothing judicial in the exercise of its functions in this respect.”

It will be observed that in all these cases the county court is spoken of as an agent. Scott, J. says ; “ The courts are the agents of the State for this purpose.” Bliss, J. says ; “ The court is so far not a county agent.” Wagner, J. : “The court acts not as the agent of the county.” It does not act judicially in the management of these school funds, but ministerially, and in the character of an agent for the State.

It is authorized to sell the lands, to lease them, to receive and sue for the purchase money, and if there be danger of loss of a debt contracted for the purchase of these lands, the court, we think, might resort to those extraordinary remedies provided for creditors generally. It might sue by attachment, and, if the purchaser is stripping the land of its timber, and thereby endangering the security for the debt, must the agent of the State stand by and witness this spoliation, and trust to the criminal law to idemnify the township by the fine imposed against persons committing waste on such lands ? Five hundred dollars is the extreme penalty, while the timber destroyed might be worth five times that amount. As careful and honest agents they will guard the interests of their principal as if the property were their own, and as long as they are actuated by an honest purpose to subserve that interest, to hold that they must answer, out of their own means, for any costs or expenses honestly incurred in the endeavor to protect that interest, would tend far more to jeopardize the.~e funds than to hold them entitled to remuneration for such outlays when they have been judiciously and honestly made.

The Township Board of Education, etc., vs. Boyd, et al. (58 Mo. 279) was this identical case in another form. It was a proceeding by mandamus to compel the county court of Washington county, by an order on her treasurer, to reimburse township No. 36, range 2 east, for the money paid to defendant in this case, Boyd. The peremptory writ was refused. Judge Lewis, who delivered the opinion of the court, held the following language pertinent to the question we are considering :

“ The county court was a trustee for the ‘care and management’ of the school fund of the township. In this capacity, and in the exercise, for aught that appears to the contrary, of its soundest judgment and discretion, it instituted certain injunction proceedings for the protection of the fund. The law required personal security for the purpose, which was given. A judgment against the surety following, which he was bound to pay and did p'ay, it would be strange if the law should refuse to idemnify him from the interest'which his suretyship had so served at a sacrifice.”

It is urged that two of the defendants, Boyd and Johnson, were a maj ority of the court and sat as judges in their own case in making the order.

It was not a judicial proceeding but a ministei ial act, and if not prompted by corruption, which is not charged, but made in goqd faith to reimburse Boyd for money judiciously and honestly expended for the benefit of the school fund, it should be replaced.

Admitting that he was entitled to be reimbursed, how else could it have been accomplished ? And if the order were irregular, yet if it be admitted that Boyd was entitled to the money, shall it be recovered back in this suit for a mere informality, when he could immediately sue for and recover it from the township with interest and costs ?

The simple question is, has Boyd received money from that fund to which in equity and good conscience he is not entitled ?

From the record we think that he was clearly entitled to indemnity for what he had paid out, and the judgment is affirmed

with the concurrence of all the court except Judge Sherwood who dissents.