State ex rel. Blakeman v. Hays

Decision Date31 March 1872
PartiesTHE STATE OF MISSOURI ex rel. T. Z. BLAKEMAN, Relator, v. SAMUEL HAYS, STATE TREASURER, Respondent.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

T. Z. Blakeman, with Krum & Patrick, for relator.

“The intention of the Legislature is to be found in the statute, itself, and there only” (Sedgw. Stat. and Const. Law, 230, 243; In re Powers, 23 Verm. 265; Hadden v. The Collector, 5 Wall., U. S, 111; Fisher v. Blight, 2 Cranch, 358, 399; Brown v. Bough, 14 Pet. 198; Ellis v. Payne et al., 1 Pick. 43; Story on Cont., § 624.)

“But bare knowledge on the part of a vendor, that the vendee intends to put the goods to an illegal use, will not vitiate the sale and deprive the vendor of all remedy for the purchase-money.” (See Kreiss v. Seligman, 8 Barb. and authorities cited.)

A. J. Baker, Attorney-General, for respondent.

BLISS, Judge, delivered the opinion of the court.

This writ was sued out to compel the payment of a warrant upon the State treasurer, issued May 16, 1861, by the auditor of public accounts, to E. J. Dupont & Co. for $5,000. The petition sets forth the organization of the ““military fund” under the act of May 11, 1861; shows that under the act it became the duty of the auditor, upon the governor's order, to draw his warrant upon the treasurer; that this warrant was regularly drawn; that there was then money in the treasury appropriated to its payment, and that there has ever since remained in the treasury, so appropriated, sufficient to pay the same, but that the treasurer refuses to pay it.

The return admits the passage of the act, the issue of the warrant and the refusal to pay it, and proceeds to show, in substance, that previous to its passage a large number of citizens of the United States had risen in rebellion, to suppress which the President had called in service 75,000 men, and for their supply had made a requisition upon the governors of the States; that Governor Jackson of Missouri expressly refused to obey the requisition, placed himself in open rebellion, called an extra session of the Legislature, who passed the act spoken of to aid him in waging war against the United States, under which act troops were raised for the purpose; and that the warrant in question was drawn in payment for powder and munitions of war furnished in furtherance of said design. The return further states, in the nature of a second count, that at the date of the warrant, the United States were engaged in a war for the suppression of the rebellion, and and her troops were occupying portions of the State of Missouri; that Claiborne F. Jackson, governor, for the purpose of resisting said troops in their efforts to suppress the rebellion, called out the militia of the State, and with them did resist said troops and engaged in hostilities; that said warrant was drawn to pay for powder and munitions of war for the use of the militia so engaged in hostilities, which facts were known to the relator and to all through whom he claims title to said warrant. The respondent further denies that there has remained in the treasury, or is now in it, any money appropriated to pay said warrant, or appropriated to said military fund. To this return the relator demurs.

The treasurer cannot be required to pay out the funds intrusted to his keeping unless appropriated; as the minister of the State, with no discretionary powers, he must disburse when and as, and only when and as, the law-making power shall direct. (Const. Mo., art. XI, § 6.) He usually looks only to the warrant, but is not bound by that if drawn without an appropriation. And if an appropriation lawfully made be exhausted, his payments must necessarily stop. Hence that part of the return denying, in effect, that there is money in the treasury appropriated for the purpose, furnishes a complete excuse for his refusal. But inasmuch as the relator criticises the form of this denial, I will consider another question raised by the return. I do not feel called upon to express any opinion upon the character of the legislative act of May 16, 1861, or the status of those called into the field before engaging in hostilities. Yet, saying nothing as to whether the legislative intention can be inquired into, except as shown in the act--a question pertaining rather to enactments in a state of peace that of civil war--we, doubtless, can consider all the circumstances surrounding and prompting the act, in showing the animus of those who took the field under it, and who furnished them with supplies.

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6 cases
  • State v. Missouri Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • May 7, 1912
    ... ... Railroad, 94 N. E. (N.Y.) 431; ... Wynehamer v. People, 13 N.Y. 378; People ex rel ... v. Otis, 90 N.Y. 48; In re Jacobs, 98 N.Y. 98; ... People v. Gillson, 109 N.Y. 389; ... Brown v. Cape Girardeau, 90 Mo ... 383; County v. Griswold, 58 Mo. 192; State v ... Hays, 49 Mo. 604; Bennett v. Boggs, 1 Baldwin ... (U.S.) 74; Atkins v. Kansas, 191 U.S. 207; ... ...
  • Merchants Exchange of St. Louis v. Knott
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    • June 6, 1908
    ...91 Mo. 228; State ex rel. v. Lesueur, 141 Mo. 29; Hannum v. Waddill, 135 Mo. 153; Reichenbach v. Ellerbe, 115 Mo. 588; State ex rel. v. Hays, 49 Mo. 604; State ex rel. v. Walker, 78 Mo. 139. (b) Held, the following cases, that suits against the State officers named therein were not against ......
  • The State ex imf. Barker v. Merchants' Exchange of St. Louis
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    • Missouri Supreme Court
    • December 21, 1916
    ...which may have superinduced the passage of the act. Brown v. Cape Girardeau, 90 Mo. 383; County v. Griswold, 58 Mo. 192; State v. Hayes, 49 Mo. 604; v. Boggs, 1 Baldwin (U.S.), 74; Atkins v. Kansas, 191 U.S. 207; Munn v. Illinois, 94 U.S. 131. (4) The power of the Legislature is unlimited e......
  • The State v. Scullin-Gallagher Iron & Steel Co.
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    • May 31, 1916
    ...which may have superinduced the passage of the act. Brown v. Cape Girardeau, 90 Mo. 383; County v. Griswold, 58 Mo. 192; State v. Hayes, 49 Mo. 604; Bennett v. Boggs, 1 Baldwin (U.S.), 74; Atkins v. Kansas, 191 U.S. 207; Munn v. Illinois, 94 U.S. 113. (4) The act is not a special act but re......
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