I do not concur in the majority opinion. The facts as I glean them from the record are as follows: The county court, under Sections 9582-9586, Revised Statutes 1919, advertised for bids for the use of the county money by depositories to be selected by the court; and that such money would be let in two parts. The trust company bid four and three-fourths per cent for the use of one part of the money; its bid was accepted, and it was designated by the court as the county depository for the money belonging to the road construction fund. The company thereupon filed its bond as such depository, and the county court ordered the treasurer to transfer all of the county money belonging to said fund to the company, which was done, and the latter accepted the trust and used the funds thus transferred to it from May 10, 1917, to July 1, 1919. The county contends that the interest at the rate of four and three-fourths per cent per annum on said funds required by law to be paid by the company for the use of same should be computed on daily balances on the entire amount deposited under the law governing county depositories.
The company admits that the county court selected the former as the depository of all money belonging to the road construction fund for a period of two years *Page 243 from May 10, 1917; and that on May 9, 1917, it filed a bond which was approved by the county court for the faithful performance of its duties as such depository, and that the funds belonging to the road construction fund were thereupon turned over to and accepted by it as such depository in the sum of $266,487.17; and that said funds were so kept and used by it from May 10, 1917, to July 1, 1919; and that it has paid the county for the use of said money during said period the sum of $8,086.79, which it claims is in full of the amount due the county during the period stated; it denies that it became, was or is indebted to the county for interest on said funds computed on daily balances, or that there is now due and owing by it to the county the sum of $7,876.82, or any other sum, as contended by the county.
As a further defense, designated as "Second" in the company's answer, it says its bid of four and three-fourths per cent was not in response to the county's advertisement; that the road construction fund was not a part of the county money to be let May 7, 1917; that another bank received all of the county funds let at said May term of the court; that the company became the depository of the road construction fund, pursuant to an agreement by it with the county court which began in the fall of 1916 and ended in February, 1917, by which the company, among other things, purchased the entire issue of certain bonds of Cole County in the sum of $300,000, which bonds bore five per cent interest; that by this agreement the company took up this entire issue, and the county court entered an order to retire or refund all of same by the issuance in lieu thereof of bonds of the county in a like sum bearing four and three-fourths per cent interest, and delivered them to the company at par and accrued interest in exchange for the original issue; that in addition to buying these bonds it was agreed with the county court that the company was to act as the depository of the fund arising from the sale of the bonds, which it is alleged was afterwards designated *Page 244 as the "Road Construction Fund," and that the company would pay interest for the use of said fund at the rate of four and three-fourths per cent on such part of same as the county deposited with it in the form of time certificates; that it was agreed that the company was not to pay on any money belonging to the road construction fund kept on open account; that the company should then and there submit and file a bid with the county court bidding four and three-fourths per cent interest, and that such a bid was filed in February, 1917, by which the company agreed to become depository of the road construction fund when the county moneys were let. It is further contended by the company that it has complied with its part of the agreement; has paid all of the interest due under same, and is not liable for any interest on the part of the road construction fund left on deposit as an open account. To this part of the answer marked "Second" the county demurred as constituting no defense to the action. This demurrer was overruled, and a reply filed denying the new matter set up in the answer. The record of the county court of this entire transaction stated in the chronological order of the entries, with as little prolixity as the nature of same will permit, is as follows:
"Monday, April 9, 1917. Clerk ordered to advertise for bids for County depository.
"April 12, 1917. Clerk gave notice that sealed bids would be received on May 7, 1917, interest to be computed on daily balances and payable monthly. A certified check for three hundred dollars was to accompany bid.
"Monday, May 7, 1917. Central Missouri Trust Company bids four and three-fourths per cent annual interest for one equal part of county money, advertised to be let by the county court Monday, May 7, and enclosed check for three hundred dollars called for in the advertisement.
"May 7, 1917. Ordered by the court that the Central Missouri Trust Company be designated as the county *Page 245 depository for all moneys belonging to the road construction fund for a period of two years, the company being found to be the highest bidder.
"May 9, 1917. The Trust Company files bond for the road construction fund, which was examined, filed and approved.
"May 9, 1917. It is ordered by court that the county treasurer transfer to the Central Missouri Trust Company all moneys in his hands belonging to road construction fund."
I. The company contends that the petition does not state a cause of action. Whether measured by the Common Law or the Code enough is contained therein to show that the county complied with the letter and spirit of the law directing the coursePleading. to be pursued in the selection of a county depository and in making a contract with the company by which the latter became the depository of the road construction fund. The terms of this contract are definitely stated, as well as the amount due to the county by reason of the failure of the company to comply with said terms, and the prayer is in accord with the damages alleged to have been sustained. While possibly not drawn with that meticulous regard for form which a purist in style might demand, enough is stated to comply with an intelligent interpretation of the rules of pleading, and the petition is not subject to tenable objection.
Preliminary to an analysis of the majority opinion it is pertinent to say in regard to the second part of the company's answer attempted to be woven with deftness and care into the defense of this case, that the matter therein pleaded is wholly immaterial to the issues stated in the petition, and should have been so held by the trial court, and the demurrer sustained. The company's defense is properly set forth in conformity with our procedure in the first part of the answer. More was but mud upon the chariot wheels. Thus much for the pleadings. *Page 246
II. Leaving out of consideration for the moment the mandatory statutes governing the conduct of public officials, which we will discuss later, a review of the action of the countyValidity of court in this transaction is pertinent, inContract: view of the construction placed thereon byAdmission. the majority opinion.
The futility of questioning the regularity of these proceedings, as affecting the validity of the contract with the company, is rendered apparent when this contention is considered in connection with the express admissions made by the company in its answer. Therein it is admitted that the company was selected by the county court as the depository of the road construction fund; that the company accepted the trust thus imposed, that the money belonging to the road construction fund was thereupon turned over to the company as the county depository by the treasurer under the order of the county court; that said fund thus deposited was kept and used by the company during the term of the contract. The only contested issue, therefore, under the pleadings, is as to the manner in which this contract, the terms of which are defined by the statute and cannot be varied, is to be enforced so far as concerns the compensation required to be paid by the company to the county for the use of the funds of the latter deposited with the former.
It is axiomatic as well as elementary in a legal proceeding, that matters admitted constitute issues submitted. This being true, it is, in all fairness, but chopping logic to contend that the minds of the parties never met and that there was no contract under which the county was entitled to recover. The rationale of this entire argument, from which it is sought to deduce the conclusion, despite the company's express admissions, is that the alleged failure of the county court to comply with the letter of the law in the preliminary steps leading up to the making of the contract, will effect the release of the company from any further obligation to pay interest to the county on the funds deposited with it. The vice in this argument, so far as concerns the regularity *Page 247 of the proceedings, if not disposed of by the company's admissions, is dissipated when we consider the nature of the contract and the construction required to be given to statutes authorizing the making of same. A formal consideration of this question is therefore appropriate, although its presentation may involve repetitions of reasons for our conclusions heretofore generally adduced. The county court's record entries we will review more in detail in connection with a consideration of the nature of this contract and the interpretation of the statutes authorizing the making of the same. To this let us give attention.
III. The general rule concerning the construction of statutes defining the duties of public officials is that they are mandatory. [Rock Island Co. v. United States, 4 Wall. 435, 18 L. Ed. 419.] This classification finds support in the relationship of officials to the public as one of trust, and asVariance. they act in a fiduciary as well as an official capacity, they are to be held to a strict performance of the duties imposed. Let us consider therefore whether the record entries of this transaction show such a compliance with the statute and the law in regard to the duties of public officers as is required by the rule of construction stated. [Russell v. Tate, 52 Ark. 541, 20 Am. St. 193, 7 L.R.A. 180; Hornung v. State, 116 Ind. 458, 2 L.R.A. 510.]
The company contends that the county did not plead or prove that the road construction fund constituted an equal part of the money to be let. Or, as stated in the reasons urged in support of the contention: "The petition alleged that the defendant submitted a bid for one equal part of the county's money advertised to be let by the county court, while the record introduced by the county showed that the company was designated the county depository for all money belonging to the road construction fund without either pleading or proving that the money belonging to this fund constituted one equal part of the money advertised to be let." In *Page 248 short, that this constitutes a fatal variance, precluding the county's right to recover.
It is a general rule, which has been given express approval by our Code (Sec. 1272, R.S. 1919), that a variance between allegations and proof to be fatal must be such as to mislead the adverse party to his prejudice in maintaining his action or defense on the merits. If the correctness of the contention as made by the company be conceded, in what manner is the latter prejudiced? [Goode v. Cent. C. C. Co., 179 Mo. App. 207; Olmstead v. Smith, 87 Mo. 602; Fischer v. Max, 49 Mo. 404; Bowles v. Quiney Railroad, 167 Mo. App. 268; Carson v. Quinn,127 Mo. App. 525.] The contest was as to the amount of interest due on the money deposited. Although the county advertised for bids from those desiring to become depositories of one part of its funds, and the company framed its bid in accordance with the terms used by the county, upon the acceptance by the latter of the company's bid it was stated in effect that the one part was all the money belonging to the road construction fund. Any other interpretation of the terms of its acceptance cannot well be made in view of all of the other facts in the case. We have frequently held, well in accordance with reason, that even a variance in verbiage from a statute or ordinance will not render a contract made on behalf of the public nugatory or militate against its enforcement. [State ex rel. Ford v. Ellison, 287 Mo. l.c. 689 and cases.] That the company became the depository of the money as the road construction fund is shown not only by its acquiescence in the designation given to the money by the county, but by the company's so denominating it in its bond given for the faithful performance of its duty as the depository, which is in the following language: "Comes now the Central Missouri Trust Company by Howard Cook and presents its bond as county depository for the Road Construction Fund, which bond the court examines and finds sufficient and orders approved and filed." In what manner, therefore, can it be said that the company was *Page 249 injured by the variance? No complaint was made by it at the time the contract was entered into and the money accepted for deposit, or subsequently, until interposed defensively in this action. The company received the money, employed it as it was authorized to do in the usual conduct of its business, and for aught that appears, either in evidence or by inference, the profit arising from its use was in no way impaired by the fact that it was designated in a different manner when the bid was filed than when it was accepted, the money deposited and the bond given for its safe keeping. These facts, therefore, are a far cry from a fatal variance. [Gannon v. Lac. Gas Light Co., 145 Mo. 502.]
IV. The record entries sufficiently show the nature of the contract between the company and the county. Parol evidence was therefore inadmissible to vary its terms. Especially is this true where the evidence sought to be introduced has reference to another and different agreement between theParol Evidence. parties and is connected with that at bar only by inference. The admission of testimony as to the agreement set up in the second part of the company's answer was therefore error. The county court in the selection of a depository was acting as the agent of the county within the limit of its defined powers. [Lamar Twp. v. City of Lamar,261 Mo. 171.] As such it can only speak by its records, which become articulate in the determination of a matter at issue when in conformity with the law authorizing the action.
V. The orders concerning this transaction were made contemporaneously with the county court's action at each stage of the proceeding. The authority for making the orders and their verity as representing what was really doneContemporaneous is not impugned; nor is it contended thatOrders: Subsequent there was not a substantial compliance withRecord. the statute (Sec. 2164, R.S. 1919) prescribing generally *Page 250 the course to be pursued by a county in the making of a contract.
The fact, therefore, that these orders were not formally entered upon the record but were kept on file by the clerk until some time after the consummation of the contract will in no wise affect the validity of the transaction. [Morrow v. Pike Co., 189 Mo. l.c. 620.] Where, as at bar, there is neither evidence nor claim of injury attributable to the deferred entries of the orders upon the record, a complaint in regard thereto is not entitled to consideration as affecting the validity of the contract. It cannot be seriously contended that the misprison of the clerk will suffice to modify, much less annul, the authorized and otherwise regular orders of the county court. [Henry County v. Salmon, 201 Mo. l.c. 151 and cases.]
VI. Estoppel is not an issue in this case. The county court could not make a legal contract with the company whose bid was accepted as a depository of public money, except as authorized by law. The limit of the court's authority was that itEstoppel. should enter into no contract for the letting of public money unless the interest thereon was required to be computed on daily balances. [Sec. 9584, R.S. 1919.] If therefore the court made other contracts with the company not under the statute they were void.
Persons dealing with public officials are bound by a constructive notice of the law which measures the limit of the power of such officials. The public therefore, by which is meant in this case the county, can not be estopped to deny the ultravires acts of its officers. Estoppel, under many well defined cases, constitutes no defense in this proceeding and was not an issue entitled to consideration.
This court, in the epigrammatic language of BLACK, J., in Sturgeon v. Hampton, 88 Mo. 213, said: "The county courts are not the general agents of the counties or of the State. Their powers are limited and defined *Page 251 by law. These statutes constitute their warrant of attorney. Whenever they step outside of and beyond this statutory authority their acts are void. [Saline County v. Wilson, 61 Mo. 237; Wolcott v. Lawrence County, 26 Mo. 275; Steines v. Franklin County, 48 Mo. 167.] Persons dealing with such agents are bound to take notice of their power and authority. [State v. Bank,45 Mo. 538; Andrew County v. Craig, 32 Mo. 531.] We should go far to uphold their acts when merely irregular, but in this case the right to a deed for these lands must stand upon the order of the county court discharging the company from the payment of the agreed compensation to the school fund, and the consideration of one thousand dollars paid-up stock. Both these acts were not simply irregularities, but they were without any warrant or authority in law and are void. These infirmities appear upon the face of the deeds and orders to which they make reference, and the purchaser from the company took with full notice.
"Nor is the county estopped from disputing the validity of these deeds. These quasi-public corporations are not estopped by the illegal and void acts of their limited statutory agents. The record shows that the land in question was assessed for taxes for the years 1870 to 1879, both inclusive. The taxes for 1870 were paid by plaintiffs; for the other years the taxes have not been paid. These facts do not constitute an estoppel. [St. Louis v. Gorman, 29 Mo. 593.]"
The rule is thus announced in Heidelberg v. St. Francois County, 100 Mo. l.c. 76: "But it is said, in substance, in one of plaintiff's declaration of law, that inasmuch as the bridge commissioner received and accepted the abutments and pier built by plaintiff, and the county court accepted said report and paid the Bullen Bridge Company for its work, that thereby the county is estopped from resisting a recovery by plaintiff. The doctrine of estoppel does not apply to counties. Nor could the county even by an order entered of record ratify the void act of the bridge commissioner (Wolcott v. *Page 252 Lawrence County, 26 Mo. 272), for the reasons that his acts being void, they were incapable of ratification. [Johnston v. Wilson,2 N.H. 202: Johnson v. Dist., 67 Mo. 319; Maupin v. County,67 Mo. 327 and cases cited; Bigelow on Estoppel (5 Ed.) p. 466, cited with approval in State ex rel. v. Murphy, 134 Mo. l.c. 567.] If the act undertaken was in and of itself ultra vires of the corporation, no act of the body can have the effect to estop it to allege its want of power to do what was undertaken."
A later ruling on this subject appears in Phillips v. Butler, 187 Mo. l.c. 713: "That a county court cannot even by order of record ratify the void acts of one of its officers, and it must logically follow that if it could not even by entry of record ratify the void order of one of its officers, it could not ratify one of its own void acts. There is no difference in principle. The reason is that a void act is incapable of ratification. Nor does the fact that plaintiff rendered services in assisting the prosecuting attorney of Butler County in protection of its swamp land, by and with the knowledge and consent of the county court of said county, amount to a ratification by that court of his supposed contract of employment. [Wolcott v. Lawrence County,26 Mo. 272.] Nor does the doctrine of estopped apply to counties. [Heidelberg v. St. Francois County, supra; Snyder v. Railroad,112 Mo. 527.]"
See also Subdivision V, Mullins v. Kansas City, 268 Mo. l.c. 460.
No power having been vested in the county court to act other than as directed by the statute it cannot be contended, with any regard for the rules of construction, that the cases cited in the majority opinion sustain the contention that the county is estopped from denying the authority of the county court in the matter. These cases only have reference to irregularities in the performance of authorized duties and not to ultra vires acts.
VII. The terms of the letting of the public money by the county court to another depository is invoked by *Page 253 analogy to aid in determining the meaning of the contract made with the company. Reasoning by analogy is at best but aAnalogy. form of inference. It is based upon the theory, that if two contracts agree with each other in certain respects they will probably agree in other respects. The degree of this probability, in logic or in law, must depend upon the number and importance of their recognized agreements. Although they may, as at bar, embody the same subject-matter, if their terms are clear and definite, no room is left for the determination of the meaning of one by a reference to the other. The application in this instance of the trite, but none the less true, aphorism is peculiarly appropriate that what is clear within itself requires no ulterior aid to render it more clear.
The fact, therefore, that the county court let the public funds at a certain rate of interest on daily balances to one depository and let like funds to the company at a different rate of interest likewise on daily balances, for the court was not otherwise empowered and in each case the rate of interest was definitely stated, leaves no room for the reference of one of these contracts to the other to determine their respective meanings. An attempt to reason by analogy therefore to sustain the contention is not only unnecessary but unauthorized.
VIII. We come now to a consideration of the question as to the manner in which the interest should be computed upon public funds let by a county court to a depository. In addition to what has been stated as to the authority of officials whenInterest. acting for the public, it may be added that in the care and custody of public funds they have no power other than that expressly conferred by law. This salutary limitation, in view of the nature of the subject-matter, should require no argument to sustain it. Public funds are the fruits of taxation imposed upon the people to maintain that intangible thing we call the government, through the instrumentality of which the affairs of the public are conducted. *Page 254 Other than for this purpose the use of such funds is not authorized. The Legislature in recognition of the sacred character of these funds and to insure their safe-keeping has prescribed with discriminating care the manner in which they shall be kept. [Art. 8, chap. 86, supra.] A material part of the duty thus defined is the exacting of interest of the depository for the use of the money. Concerning this, the statute leaves no room for cavil. It provides that: "The interest upon each fund shall be computed upon the daily balances with the depository, and shall be payable to the county treasurer monthly." [Sec. 9584, R.S. 1919.]
Under no other conditions than those prescribed can public funds be deposited. [Henry County v. Citizens Bank, 208 Mo. l.c. 226.] An attempt therefore, of which there was no convincing testimony, to enter into or consummate a contract with the depository for the deposit with it of public funds free from the burden of interest or to be calculated upon it as a time deposit finds no sanction in the law. The contract entered into, when rightly construed, conforms to the requirements of this statute. Its enforcement therefore according to its unequivocal terms is authorized. The action of the trial court in ruling to the contrary was therefore error and the judgment should have been reversed and the cause remanded, with directions that a judgment be entered in favor of the county in the amount of its claim with interest from the date of the filing of this suit at the rate of six per cent per annum.
Headnote 1: Counties, 15 C.J. sec. (1926 Anno); Headnotes 2 and 3: Evidence, 22 C.J. secs. 163, 69; Headnotes 4 and 5: Estoppel, 21 C.J. sec. 219.