Lincoln University v. Hackmann

• Decision Date: 19 June 1922
• Docket Number: No. 23708.,23708.
• Citation: 243 S.W. 320,295 Mo. 118
• Parties: LINCOLN UNIVERSITY v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

243 S.W. 320

295 Mo. 118

LINCOLN UNIVERSITY v. HACKMANN, State Auditor.

No. 23708.

Supreme Court of Missouri, in Banc.

June 19, 1922.

Motion for Rehearing Denied July 18, 1922.

Mandamus by the Lincoln University, a corporation, against George E. Hackmann, State Auditor. Writ denied.

George V. Berry, of St. Louis, for relator.

Jesse W. Barrett, Atty. Gen., and Merrill E. Otis, Asst. Atty. Gen., for respondent.

HIGBEE, J.

This is an original action in this court by the relator to require the state auditor to honor a requisition for the sum of $4,287.40 and to draw a warrant upon the state treasury for that sum in favor of the treasurer of relator. The respondent entered his appearance, waived the issuance of the alternative writ, and filed his return.

It will not be necessary to refer to the pleadings.

An act of the General Assembly, approved April 15, 1921 (Laws 1921, p. 86), repealed article 17a, c. 102, R. S. 1919, and enacted a new article in lieu thereof, providing for the higher education of the negro race. The act changed the name of Lincoln Institute to Lincoln University, vested the control thereof in a board of curators, and authorized the board to reorganize the institution so that it shall afford the negroes of the state opportunity for training up to the standard furnished at the State University of Missouri, to purchase additional land and erect necessary additional buildings, and conferred upon the board of curators the same powers prescribed by statute for the board of curators of the State University of Missouri, except as stated in the act. Section 8 reads:

"To enable the board of curators to carry out the purposes of this act, as stated specifically in section 3, and subject to the provisions of section 6 of the same, there is hereby appropriated from any unappropriated portion of the general school funds the sum of five hundred thousand ($500,000.00) dollars."

Relator's statement proceeds:

"Upon being notified by the state auditor that this money was available for the purposes mentioned in section 3, the board of curators employed E. C. Janssen, an architect, to draw plans for and superintend the construction of certain new buildings to be erected on the grounds of the university. On April 26, 1922, having become indebted to E. C. Janssen in the sum of 84.287.40, and the same being due, the board issued a requisition upon respondent directing him to issue a warrant upon the state treasury for that amount in favor of A. A. Speer, treasurer of Lincoln University, and charge the same against the $500,000 appropriated by the act for this purpose. This the respondent refused to do, contending that no portion of the public school funds or moneys was unappropriated at that time, and, therefore, there were no funds out of which to pay this requisition."

By an act with an emergency clause, approved February 21, 1921 (Laws 1921, p. 62), one-third of the ordinary revenue paid into the state treasury for the fiscal years from July 1, 1920, to June 30, 1922, was appropriated to the support of the public schools of the state, to be apportioned according to law. By section 11179, R. S. 1919, this is required to be done annually by the state superintendent before August 15. It is admitted the apportionment has not been made.

The learned Attorney General states his views as follows:

"As respondent understands relator's position, it is that the Legislature intended that the $500,000 appropriated to Lincoln University should be paid, not out of any unappropriated part of the public school funds (since it is clear that all of the public school funds had been appropriated to the support of the public schools), but out of the funds theretofore appropriated from the public treasury but not yet actually apportioned to the various counties as required by section 11179, R. S. Mo. 1919. This view presents two questions for consideration: First, may the words `from any unappropriated portion of the general school funds' be construed to mean `from any portion of the general school funds not specifically appropriated'; and second, did the Legislature have the authority, having already appropriated all of the one-third part of the ordinary revenue set apart for the support of the public schools, thereafter to again appropriate a portion of such revenue to a particular educational institution.

"With respect to the first of the two questions mentioned respondent is inclined to agree with the relator that the Legislature meant by the language used that the appropriation to Lincoln University should be taken from the one-third part of the ordinary revenue of the state set apart for the support of public schools, which was not otherwise specifically appropriated by sections 36 to 70, inclusive, appearing in the Laws of Missouri for 1921, at pages 29 and 30. If the Legislature did not have that intention, then it must be clear that the appropriation was intended to be ineffective, against which last construction every possible presumption would certainly exist. The appropriation is intelligible if it was intended to be paid out of the balance remaining in the one-third part of the ordinary revenue set aside for public schools, after the deduction therefrom of the five specific appropriations which total $1,047,659.64, leaving a balance of several million dollars. Otherwise the appropriation is a nullity.

"With respect to the second question, there would seem to be little doubt that the Legislature has the authority to designate to what particular purposes any portion of the one-third part of the ordinary revenue shall be applied, provided those purposes are germane to the support of public schools. Assuming, therefore, that Lincoln University is a part of the public school system of the state, it would seem that the Legislature has the same right to direct the application of a portion of the public school funds to its support that it had to direct the application of a portion of the same fund to the support of rural high schools, as in section 66, Laws of Missouri 1921, page 29, or to the support of teachers' training courses in high schools, as in section 67, Laws of Missouri 1921, or to any other of the specific purposes referred to in sections 66 to 70, inclusive, Laws of Missouri 1921, pages 29 and 30."

By the act in question a great educational institution was organized as a university, separate and apart from the State University, for the purpose of affording the negroes of our state the means and facilities of higher education. The board of curators was clothed with the powers conferred by statute on the curators of our State University, and authorized to purchase land and erect additional buildings, etc. These duties are affected with a public trust. The statute in this respect may be said to be mandatory in its nature in order that its great beneficent purposes may be carried into effect and the state realize the benefits of extending to the negroes of our state the education, culture, and training afforded by the University of Missouri.

1. As to the first question suggested we have no doubt that the word "unappropriated" was used inadvertently and should be rejected. We have held that In construing an act of the Legislature, words may be inserted or substituted when necessary to effect the manifest intention of the framers thereof. State ex rel. v. Sheehan, 269 Mo. 421, 427, 190...