Township Board of Education v. Boyd

Lewis, Judge,

.delivered the opinion of the court.

In 1866, Robert N. and William C. Martin bécame purchasers, in the usual manner, of the school section in- township 36, range 2, east, giving their note with personal security to Washington County, for the use of the inhabitants of the township. In May, 1868, the note remaining unpaid, the *278 County Court required additional séeurity, which was hot given. A second order being made, also without effect, the court directed suit npon the note with an application for injunction against the makers to prevent their committing waste upon the land. The injunction bond was executed by F. 1L Boyd and J. B. Johnson, two of the justices of the County Court, with other parties. Upon dissolution of the injunction, the Martins obtained a judgment for damages against the obligors, in the sum of $563.08, including costs. This judgment being paid and satisfied by Justice Boyd, the County Court subsequently, by ordér on the county treasurer, re-imbursed him out of the funds pertaining to the school tówhship: The relators, constituting thé board of education, thereupon demanded of the court an order directing the treasurer to re-imburse to their township out of the county treasury, the sum so paid to Boyd. The court refused to make such an order, ahd this proceeding by mandamus was instituted to compel it. The defendant’s return upon the alternative writ set out substantially the above facts, and the relators filed a motion to strike out the return for insufficiency in the facts stated, and for a peremptory mandamus. The court below overruled the motion, and, in the same entry, denied the prayer for mandamus. The relators insist here upon their right to the writ.

The defendants in error call our attention to several imperfections in the bill of exceptions, some of which embody at least a departure from wholesome precedent. But, as our views upon the merits of the relator’s application may more effectually prevént further litigation on the subject, it seems best to avoid disposing of the case upon purely technical grounds.

The County Court was a trustee for the “ care and management ” of the school fund of the township. In this capacity, and in the exércise — 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 *279 was given. A judgment against the surety following, which judgment he was bound to pay, and did pay, it would be strange if the law should refuse to indemnify him from the interest which his suretyship had so served at a sacrifice. "We are not called upon to decide tha't Boj'd could have sued and recovered his money back from the township fund. But it is sufficient to perceive that the County Court may well have believed so, and that, as guardian of the fund, its duty was to avoid the expense of useless litigation by paying the demand without it. If the court did wrong in this, there was, at the utmost, only a case of misappropriation by a trustee.

The County Court was, at the same time, a trustee or agent of the State for certain well defined purposes, in the affairs of Washington County. The two charges it held were as distinct and separable as two agencies of different mercantile firms can be held in one man.- That this controlling fact appears to have escaped attention, is not a little remarkable, after the clear expositions by this court, in several cases, of the relations held by the County Courts to the counties and the school townships respectively. (Reardon vs. St. Louis Co., 36 Mo., 555 ; Ray County vs. Bently, 49 Mo., 236 .)

The court, in its management of the township fund, does not represent the county, nor has the county, as such, any voice, right, or responsibility in the matter. To hold the county answerable from its treasury for a misappropriation by the township’s trustee, because the county’s financial affairs happen to be managed by the same party, would be anomalous, to say the least. As well might an insurance company be held liable upon a risk it had never taken, on the ground that its agent was also agent of another company which had issued the policy.

These considerations, even if they accomplish nothing more, may serve to show that the relators have mistaken their remedy; which is as much as this opinion need undertake to settle. They show that, if the relators have any right which ought to be enforced, it is in the shape of a common law demand against somebody for a misappropriation of their money *280 by tbe party having it in lawful charge for specific purposes. It cannot be a demand against the Connty Court; for that is not a corporation capable of incurring such a liability. If it is one against Washington County or against tbe justices personally, the law provides ample means for its enforcement, of which mandamus is not one. Nor is tbe alleged claim of relators to a re-imbursement, from the county treasury, a clear and unquestionable one, which the law bas specifically defined, or which bas been determined by an adjudication. It is at least open to grave doubts, which the unreasoning procedure by mandamus is unfitted to solve.

Because the remedy sought was not applicable to the case presented, the judgment below is affirmed, with the concurrence of the other judges.