Kavanaugh v. Gordon

• Decision Date: 02 July 1912
• Parties: WILLIAM K. KAVANAUGH et al., Constituting the Missouri Waterways Commission, v. JOHN P. GORDON, State Auditor
• Court: Missouri Supreme Court

149 S.W. 587

244 Mo. 695

WILLIAM K. KAVANAUGH et al., Constituting the Missouri Waterways Commission, v. JOHN P. GORDON, State Auditor

Supreme Court of Missouri

July 2, 1912

Appeal from Cole Circuit Court. -- Hon. J. M. Williams, Judge.

Affirmed.

Lon O Hocker and W. M. Williams for appellants.

(1) The part of Sec. 63 of the appropriation bill directing the payment of $ 7000 for the salary and expenses of John H Nolen "as special agent of the State and the commission and expert in the work of said commission" is violative of the Constitution, null and void. Sec. 63, p. 18, Laws 1911; Par. 15, Sec. 53, Art. 4, Constitution 1875; Par. 26 Sec. 53, Art. 4, Constitution 1875; Sec. 46, Art. 4, Constitution 1875; Sec. 28, Art. 4, Constitution 1875; Art. 3, Constitution 1875; Sec. 46, Art. 4, Constitution 1875; Pars. 15 and 26, Sec. 53, Art. 4, Constitution 1875; State ex rel. v. St. Louis, 216 Mo. 94; State ex inf. v. Washburn, 167 Mo. 393; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Herrman, 75 Mo. 353. (2) There is first directly appropriated by the Act of 1911 the sum of seventeen thousand dollars to the Missouri Waterway Commission. This appropriation is complete in itself and may stand notwithstanding the subsequent provision is stricken out as invalid and unconstitutional. State ex rel. v. Taylor, 224 Mo. 474; State ex rel. v. Field, 119 Mo. 593. (3) The plaintiffs' petition does not seek to remove Nolen from office, or to interfere in anywise with any official function or duties that he may be performing. The sole purpose of the bill is to prevent the use for other purposes of money appropriated for the Waterway Commission. The degree, under the petition, can only go to that extent and no further. An injunction is the only remedy that will give that relief, and, while the decree cannot oust an incumbent from an office, it does not follow that equity can grant no relief against the misapplication of public funds because the right to an office may incidentally arise. Johnston v. Jones, 23 N.J.Eq. 216; Huntington v. Cast, 48 N.E. 1025. (4) There is no such office created by law as "special agent of the State and the commission and expert in the work of said commission," and where there is no de jure office there can be no de facto officer under the rule in this State. Ex parte Snyder, 64 Mo. 62; State ex rel. v. Nast, 209 Mo. 723. (5) Plaintiffs constitute "The Missouri Waterway Commission," which is charged with the duty and responsibility of properly expending, for the benefit of the people of the State, the seventeen thousand dollars appropriated for that purpose. It is incumbent upon the members of this commission to see to it that the money committed to their charge by the General Assembly is used for the legitimate purposes for which it was set apart and appropriated. "A public office is a public trust" and as trustees of this fund the plaintiffs are responsible to the people of the State for its use, and have such an interest in their official capacity as authorizes them to invoke equitable aid for its protection. Throop on Public Officers, Sec. 544; Bank v. Houser, 42 N.E. 753; Auditor v. Railroad, 46 N.W. 730; Todd v. Birdsall, 1 Cowen, 257; Supervisors v. Stimson, 4 Hill, 137; State ex rel. v. Court, 107 Mo. 291; State ex rel. v. Fidelity Co., 236 Mo. 364. (6) Plaintiffs as taxpaying citizens of the State have the right to maintain this action. Cooley on Taxation (2 Ed.), 767; 2 Joyce on Injunctions, 1382; Crampton v. Zabriskie, 101 U.S. 601; Winn v. Shaw, 25 P. (Cal.), 969; Adams v. Brenan, 42 L.R.A. (Ill.) 721; Savidge v. Village, 70 N.W. 426. (7) A State officer is not exempt from suits to restrain the improper application of public funds. A suit against a State officer in such instances is not a suit against the State. Exchange v. Knott, 212 Mo. 647. (8) Nolen was not a necessary party. No relief is sought against him. Plaintiffs do not seek to deprive him of any office, or to prevent him from exercising any official function that he may claim. He has no power to draw warrants upon the State Treasurer, which is the only thing sought to be enjoined in this proceeding. The defendant, as State Auditor, is the only person who has the power to do that which plaintiffs seek to prevent. Black v. Cornell, 30 Mo.App. 641; Black v. Ross, 37 Mo.App. 250.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for respondent; T. S. Mosby of counsel.

(1) Equity is without jurisdiction to test the right of Nolen to the office which he holds by legislative appointment. The court cannot try Nolen's right to his salary without trying his title to his office, the right of a public officer to the compensation of his office being incidental to and dependent upon his title to the office. The legality of an appointment or election to any office can be tested only by quo warranto or other adequate and specific legal remedy, and where such remedy is provided injunction will not lie. The right of a person claiming an office by color of title and exercising it de facto cannot be collaterally attacked. State ex rel. v. Gordon, 236 Mo. 165; State ex rel. v. Johns, 81 Mo. 13; State ex rel. v Aloe, 152 Mo. 478; State ex rel. v. Withrow, 154 Mo. 397; Arnold v. Henry, 155 Mo. 48; White v. Berry, 171 U.S. 377; Greene v. Knox, 175 N.Y. 432; People ex rel. v. Comrs., 174 N.Y. 450; Dayton v. Carter, 206 Pa. 491; Brower v. Kantner, 190 Pa. 182; Lavin v. Comrs., 245 Ill. 505; People v. Lieb, 85 Ill. 484; Grove Dist. v. Myles, 109 Ia. 541; State v. Alexander, 107 Ia. 177; Corcoran v. Pittston, 11 Kulp (Pa.), 81; Hullman v. Honcomp, 5 Oh. St. 242; Updegraf v. Crans, 47 Pa. 103; Hinckley v. Breen, 55 Conn. 119; Butler v. Ellerbe, 44 S.C. 256; Cornish v. Young, 1 Ashm. (Pa.) 153; Hagner v. Heyberger, 7 W. & S. (Pa.) 104; Campbell v. Comm., 96 Pa. 344; Bean v. Thompson, 19 N.H. 290; Morse v. Calley, 5 N.H. 223; Plymouth v. Painter, 17 Conn. 585; Douglas v. Wickwire, 19 Conn. 492; Coolidge v. Brigham, 1 Allen (Miss.), 336; Fowler v. Bebee, 9 Mass. 231; Aulanier v. Governor, 1 Tex. 653; Crosier v. Cornell, 27 Hun (N.Y.), 215; Snyder v. Schram, 59 How. Pr. (N.Y.) 404; Golden v. Bressler, 105 Ill. 419; People v. Weber, 86 Ill. 283; Desmond v. McCarthy, 17 Ia. 525; Leach v. Cassidy, 23 Ind. 449; State v. Pertsdorf, 33 La. Ann. 1411; Ex parte Parks, 3 Mont. 426; 22 Cyc. 775; High, Extr. Leg. Rem. (3 Ed.), Secs. 49, 619; Pomeroy, Eq. Jur., Sec. 336; High, Injunctions (4 Ed.), Sec. 1312; In re Sawyer, 124 U.S. 200; 5 Am. and Eng. Ency. Law, p. 106. (2) Plaintiffs have no such interest as will entitle them to injunctive relief and are without legal capacity to sue. It appearing on the face of plaintiff's petition that the $ 7000 could not be used by them as such commissioners, and they having neither alleged nor shown any other special interest or prospective injury from the payment of this money to Nolen for the work in which he is now engaged; and it appearing upon the face of the bill that plaintiffs have no right to sue as individual taxpayers, nor as the Missouri Waterway Commission, nor as the trustee of an express trust, and it fully appearing upon the face of the bill that they have no interest, either remedial or beneficial, they can have no legal capacity to sue. Commonwealth v. Barnett, 199 Pa. 161; Denz v. Kremer, 142 Wis. 1; Acheson v. Railroad, 140 S.W. 467; Sanderson v. Cerro Gordo, 80 Iowa 89; Western v. Dalton, 122 Ga. 774; Rutherstrom v. Peterson, 72 Kan. 679; Amusement Co. v. Topeka, 68 Kan. 802; Packard v. Jefferson Co., 2 Colo. 338; Grant v. Cook, 7 D. C. 165; Sidener v. Haw Creek Co., 91 Ind. 186; Craft v. Comr's, 5 Kan. 518; Pierce v. Smith, 48 Kan. 331; Delaware Co. v. Stump, 29 Am. Dec. 561; Allen v. Board, 13 N.J.L. 68; Smith v. Lockwood, 13 Barb. 209; Doolittle v. Broome Co., 18 N.Y. 155; Manhattan Co. v. Barker, 36 How. Pr. 233; Atlanta Co. v. Bank, 75 Ga. 40; Voisin v. Leche, 23 La. Ann. 25; Normond v. Otoe Co., 8 Neb. 18; Cady v. Cogner, 19 N.Y. 256; 22 Cyc. 910, 760, 761; 30 Cyc. 21; High, Injunct., Sec. 1560; Joyce, Injunct., Secs. 345, 361, 361a; Pomeroy, Equity Jur., Sec. 327; Kerr on Injunct., p. 22; Pom., Eq. Rem., Sec. 326. (3) Plaintiffs have a specific remedy at law by means of quo warranto. That remedy being complete and adequate in all respects, it ousts the equitable jurisdiction of the case. Sec. 2631, R. S. 1909; McCarty v. McKinney, 77 S.E. 394; Commissioners v. Griffin, 134 Ill. 330; Hinze v. People, 92 Ill. 406; Updegraf v. Crans, 47 Pa. 103; Davis v. Council, 90 Ga. 817; Gilmore v. Wells, 78 Ga. 197; Bronk v. Riley, 105 Hun 489; Lockwood v. Lawrence, 77 Me. 297; Spelling, Extra. Rel., Secs. 16 and 694. (4) John H. Nolen is the de facto incumbent of a public office, and equity will not intervene to determine the legality of his commission. Sec. 63, p. 18, Laws 1911, appropriating $ 7000 for salary and expenses of said Nolen "as special agent of the State and the commission and expert in the work of said commission," created a public office. The appropriation was for a necessary public purpose, within the meaning of the seventh clause of Sec. 43, Art. 4, Missouri Constitution. The duties of the office are made sufficiently clear by the language of Sec. 63, supra, and by the statute creating the waterway commission (Laws 1909, p. 902, Sec. 2.) The duration of the office is fixed by both the statutory limitation upon the life of the waterway commission and the constitutional limitation upon the appropriation itself. The compensation is clearly specified. The office is created by legislative act, and that act is presumptively valid. Nolen is in possession of the office, exercising its functions under color of title and with the acquiescence of the public. His title cannot be impeached in this...