The State ex rel. Bybee v. Hackmann

• Decision Date: 12 December 1918
• Parties: THE STATE ex rel. JOHN Q. BYBEE v. GEORGE E. HACKMANN, State Auditor
• Court: Missouri Supreme Court

207 S.W. 64

276 Mo. 110

THE STATE ex rel. JOHN Q. BYBEE v. GEORGE E. HACKMANN, State Auditor

Supreme Court of Missouri

December 12, 1918

Writ Issued.

A. T Dumm for relator.

(1) The State Board of Equalization had both constitutional and statutory authority to employ relator for the purposes for which he was employed. Sec. 18, art. 10, Constitution 1875; Secs. 11410, 11577, R. S. 1909; Railway Co. v. State Board of Equalization, 64 Mo. 294; Washington Co. v Railway Co., 58 Mo. 378; State ex rel. v Gates, 67 Mo. 143; State ex rel. v. Reber, 226 Mo. 237; 23 Am. & Eng. Ency. Law (2 Ed.), p. 364; Laws 1917 p. 46; Laws 1917, p. 545, sec. 15. (2) Mandamus is relator's proper and only remedy. And the State Board of Equalization which employed him pursuant to law, having approved his account, it became the duty of respondent to audit the account and draw his warrant on the treasury for its payment; and having refused to do so, the peremptory writ of mandamus should be awarded. State ex rel. v. Mason, 153 Mo. 56; State ex rel. v. Wilder, 199 Mo. 470; 19 Am. & Eng. Ency. Law (2 Ed.), p. 782; Sec 11813, R. S. 1909.

Edward W. Foristel for respondent.

(1) The State Auditor may refuse to draw a warant, although the correctness of the expense is certified to. State ex rel. McMurty v. Thompson, 37 Mo. 176; State ex rel. Lindley v. Clark, 61 Mo. 263. (2) The State Auditor was justified in refusing to draw the warrant because the State Board of Equalization had no authority to employ a stenographer at the expense of the State. Benton v. Decatur County, 36 Iowa 504; Cohen v. Commonwealth, 6 Pa. 111; Laws 1917, sec. 14, p. 545; Laws 1917, sec. 15, 545; R. S. 1909, sec. 11807; R. S. 1909, sec. 11411.

FARIS, J. Bond, C. J., Walker, Woodson and Williams, JJ., concur.

OPINION

In Banc

Mandamus.

FARIS J. --

This is an original proceeding by mandamus to compel respondent as State Auditor to audit for payment an account of the relator for services rendered by him as stenographer in taking down in shorthand and transcribing the evidence heard by the State Board of Equalization.

The petition filed herein upon application for our alternative writ makes clear the grounds upon which the relief prayed for is bottomed. Pertinent parts of that petition read thus:

"Your petitioner says that pursuant to said constitutional and statutory provisions, above cited and quoted, said State Board of Equalization, acting by and through its duly and legally constituted agent, the secretary of said board of equalization, on the 2nd day of July, 1918, employed your petitioner as an expert shorthand reporter or stenographer to take stenographic notes of the evidence taken before said board and to transcribe the same; and that on the 9th day of July, 1918, the said State Board of Equalization, by order duly entered on the records of said board, duly approved the appointment and employment of your petitioner for the purposes aforesaid.

"Your petitioner alleges that pursuant to said appointment and employment as aforesaid, he entered upon the duties of said employment on the 8th day of July, 1918, and continued to take the evidence at hearings before said board for seventeen days thereafter, which, at $ 10 per day, amounts to the sum of $ 170; that your petitioner was ordered by said board to transcribe the evidence taken by him at the hearing before said board, and to deliver to said board, for the use of the members thereof, one original copy and five carbon copies of said evidence so transcribed, and that your petitioner, in obedience to said order of said board, did furnish to said board one original copy and five carbon copies of said evidence so taken and transcribed by him as aforesaid, charging therefor 15 cents per folio, or 45 cents per page, for said original copy and 5 cents per folio, or 15 cents per page, for each of said five carbon copies; that there were 330 pages of said evidence, so taken and transcribed by him as aforesaid, which, at 45 cents per page for said original copy, amounts to $ 148.50; and that the five carbon copies, furnished for him as aforesaid at 15 cents per page for each copy, amounts to $ 247.50; and that the items of said account of your petitioner for his services aforesaid more fully and particularly appear from an itemized statement hereto attached and made a part of this petition and marked 'Exhibit A.'

"Your petitioner says that the total of all the items of said account, for the services rendered by him as aforesaid, is $ 566; and your petitioner says that he presented said account to said State Board of Equalization for its approval, and that on the 24th day of September, 1918, said board duly approved your petitioner's account in said sum of $ 566; and your petitioner says that said charges, so made by him as aforesaid, were and are the legal and reasonable charges for such services.

"Your petitioner says that, on the 27th day of September, 1918, he duly presented to and filed with the said George E. Hackmann, State Auditor as aforesaid, said itemized statement and account (so approved by said State Board of Equalization, as aforesaid) in said sum of $ 566, for audit, allowance and payment as a claim against the State of Missouri, and to be paid out of the moneys appropriated for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the State Board of Equalization, said moneys being appropriated by Act approved April 9, 1917, entitled, 'An act to appropriate money for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the State Board of Equalization, with an emergency clause,' and being Section 1, page 46, Laws of Missouri 1917; that at the time your petitioner presented and filed said account with the said George E. Hackmann, State Auditor as aforesaid, for audit, allowance and payment, there was and is now in the State Treasury, to the credit of the appropriation for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the State Board of Equalization, more than sufficient money to pay said account for said sum of $ 566, and that it then and thereupon became the duty of the said George E. Hackmann, State Auditor as aforesaid, to audit and allow said account in said sum of $ 566, and to draw his warrant upon the State Treasury in favor of your petitioner for the payment of the same; but your petitioner says that the said George E. Hackmann, State Auditor as aforesaid, wrongfully failed and refused, and does still wrongfully fail and refuse, to audit and allow said account and to draw his warrant upon the State Treasury in favor of your petitioner for the payment of the same, in said sum of $ 566, or in any other sum."

The return to our writ is signed and was filed herein by private counsel and not by the chief law-officer of the State. However, absent any objection, we assume of course ample authority in private counsel to appear here and represent respondent, even though the statutes in such cases made and provided might lead us to expect to see the State Auditor represented by the Attorney-General in a case like this. Be all this as may be, this return serves to make clear the...