State ex rel. Armontrout v. Smith

• Decision Date: 13 October 1944
• Docket Number: 39201
• Citation: 182 S.W.2d 571,353 Mo. 486
• Parties: State of Missouri, at the relation of Gilbert G. Armontrout, Relator, v. Forrest Smith, State Auditor of the State of Missouri
• Court: Missouri Supreme Court

182 S.W.2d 571

353 Mo. 486

State of Missouri, at the relation of Gilbert G. Armontrout, Relator, v. Forrest Smith, State Auditor of the State of Missouri

No. 39201

Supreme Court of Missouri

October 13, 1944

Writ issued.

George A. Spencer for relator.

(1) The General Assembly of Missouri has the power to, and may, pass any law not forbidden by the state Constitution or the Constitution of the United States. The Constitution is a limitation upon and not a grant of legislative power. State ex rel. Gordon v. Becker, 49 S.W.2d 146; State ex rel. Critcher v. Koeln, 61 S.W. 750; State v. Dixon, 73 S.W.2d 385. (2) The burden rests upon the party questioning the constitutional validity of an act of the Legislature to establish unconstitutionality beyond a reasonable doubt and if its constitutionality remains in doubt, such doubt must be resolved in favor of its validity. State v. Addington, 77 Mo. 110; Kellogg v. Murphy, 164 S.W.2d 285; Poole & Creber Market Co. v. Brashears, 125 S.W.2d 23. (3) The construction given to a constitutional provision by the Legislature in passing a law, though not binding in the courts, in persuasive. State v. Riedel, 46 S.W.2d 131; State v. Kirby, 163 S.W.2d 990. (4) Relator's demand on the respondent is not in violation of the provisions of Section 48, Article IV of the Constitution. Secs. 14209, 14210, 14211, R.S. 1939; State ex rel Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857; State ex rel. Kelly v. Hackman, 275 Mo. 236 205 S.W. 161; Slack v. Jacobs, 8 W.Va. 612. (5) Assuming that there was an agreement, "meeting of the minds", or a contract, the constitutional prohibition would not apply because it was an authorized agreement. Secs 14209, 14210, 14211, R.S. 1939; State ex rel. Averill v Smith, 175 S.W.2d 831; State ex rel. Kelly v. Hackman, 275 Mo. 636, 205 S.W. 161; Miller v. Dunn, 14 P. 27. (6) Section 44 of Article IV of the Constitution does not apply to the claim herein made. State ex rel. Averill v. Smith, supra. (7) The power of the General Assembly with respect to public funds is supreme. State ex rel. Davis v. Smith, 75 S.W.2d 828. (8) The provisions of the present Budget Act do not cover the payment of this claim. Secs. 10895-10909, R.S. 1939; State ex rel. Averill v. Smith, supra.

Roy McKittrick, Attorney General, B. Richards Creech and Ralph D. Lashly, Assistant Attorneys General, for respondent.

(1) Relator's claims were made without express authority of law, therefore the appropriation made by the Sixty-Second General Assembly to provide funds to pay such claims, and other claims in similar position to relator's, is contrary to Section 48, Article IV, of the Constitution of Missouri. Sec. 48, Art. IV, Constitution of Mo.; Sager v. State Highway Comm., 349 Mo. 341, 160 S.W.2d 757; Spitcaufsky v. State Highway Comm., 349 Mo. 117, 159 S.W.2d 647. (2) The claims upon which the relator relies are based upon contracts or agreements within the meaning of Section 48, Article IV, of the Constitution of Missouri. 17 C.J.S., p. 310; Art. 11, Chap. 102, R.S. 1939; Secs. 14209, 14210, 14211, 14212, R.S. 1939; Sec. 21, Art. II, Constitution of Mo.; 1 Webster's New International Dictionary, Second Edition; Sec. 48, Art. IV, Constitution of Mo. (3) Section 10907, R.S. 1939, which is a part of the Budget Act, requires that no expenditure shall be made or obligation incurred unless a certificate first be issued by the State Auditor. This was not done, therefore the section was not complied with. Secs. 10902, 10906, 10907, 10909, R.S. 1939; State ex rel. Averill v. Smith, 175 S.W.2d 831; State ex rel. McKinley Publishing Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007; Spitcaufsky v. Highway Comm., 349 Mo. 117, 159 S.W.2d 647; Sager v. State Highway Comm., 349 Mo. 341, 160 S.W.2d 757; Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186; Carter-Waters Corp. v. Buchanan County, 129 S.W.2d 914; Sec. 48, Art. IV, Constitution of Mo. (4) Section 14209, R.S. 1939, the section under which relator's claims were attempted to be based, expressly limits the parties to only expend or receive moneys within the amount which may be appropriated. Sec. 14209, R.S. 1939; Sec. 23A, of House Bill 581, 61st General Assembly appropriation; Sec. 43, House Bill 657, 62nd General Assembly appropriation; Sec. 19, Art. X, Constitution of Mo.; Secs. 20, 43, Art. IV, Constitution of Mo.; State ex rel. v. Holladay, 64 Mo. 526; State ex rel. v. Gordon, 139 S.W. 403, 236 Mo. 142; Jobe v. Caldwell and Drake, 136 S.W. l.c. 967; Sec. 48, Art. IV, Constitution of Mo.; White v. Jones, 177 S.W.2d 603.

OPINION

Hyde, J.

This is an original proceeding in mandamus to compel the State Auditor to approve relator's claim and issue a warrant therefor. The question involved is the validity of a deficiency appropriation.

The parties have filed an agreed statement of facts. The Sixty-first General Assembly appropriated $ 25,000.00 for the 1941-1942 biennium to pay indemnities to owners of cattle, slaughtered as reactors to Bang's disease (contagious abortion), to cooperate with the program of the United States Department of Agriculture for controlling this disease. Relator, a farmer, in April, 1942 disinfected his premises as instructed by inspectors and in September and October, 1942 had blood tests of his cattle taken by them. Three cows reacted to the tests and were appraised, shipped to market and slaughtered at a loss of more than $ 25.00 each. Relator's claim for $ 24.99 ($ 8.33 each), for this state's share of the indemnity due him, was approved by the State Veterinarian, by the Commissioner of Agriculture and by the Governor. However, the $ 25,000.00 appropriation had been expended to pay prior claims before relator's claim came into existence. Thereafter, in 1943, the Sixty-second General Assembly appropriated $ 32,323.80 "for indemnity and relief of persons, firms and corporations, for their cattle condemned and slaughtered as reactors of the agglutination blood test for Bang's disease and in cooperation with the United States department of Agriculture for the period from January 1, 1941 to December 31, 1942, as per accounts now on file in the office of the State Auditor". This disease is not only disastrous to cattle owners, but the use of milk from cows infected with it is believed to be the cause of undulant fever in human beings. The 1939 Act for control of Bang's disease was enacted with an emergency clause, reciting that it was "required for the preservation of the public health, safety and general welfare." (Laws 1939, p. 240.) A deficiency appropriation of $ 50,793.06 was made in 1941 (Laws 1941, p. 252) to pay claims for cattle slaughtered under this program between June 15, 1939 and December 31, 1940.

The validity of this appropriation being questioned, it was approved by the Governor upon the assurance of the State Auditor that no warrant would be issued for such claims unless "it shall have been adjudged by the Supreme Court of Missouri that such warrant should be issued". The Attorney General contends that the General Assembly did not have the authority to make this appropriation because of the limitation of its powers stated in the second clause of Sec. 48, Art. IV of our Constitution, as follows: "The General Assembly shall have no power to . . . authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void."

It is argued that relator's claims are based on contracts or agreements within the meaning of this Constitutional provision; that they were unauthorized because Sec. 10907 (this and all other references are to Mo. R.S. Ann. and R.S. 1939), a part of the Budget Act, provides: "No expenditure shall be made and no obligation incurred by any department without the certification of the auditor that there is a sufficient unencumbered balance in the allotment and a sufficient unencumbered cash balance in the treasury to the credit of the fund from which such expenditure or obligation is to be paid, each sufficient to pay the same"; and that this is recognized in Sec. 14209 (authorizing Bang's disease control) by the following limitation therein: "Within the amounts, which may be appropriated for this purpose, the State may pay such proportion of the indemnity and of the expenses incurred in suppressing or combating such disease under the provisions of this section as shall be determined by and mutually agreed upon with the United States Department of Agriculture, provided, however, that such amounts paid for indemnity on each individual animal by the state shall not exceed the amount paid by the United States."

Participation in this program is purely voluntary on the part of the farmer. He must request the inspection and is not compelled to accept the appraisement after it is made. There is nothing in any of the papers signed to prevent his withdrawal from further participation in the program at any time. Nevertheless, he does accept the result when he ships his cattle for slaughter. Therefore, the arrangement made between relator, with representatives of this state and the United States Department of Agriculture, for shipment and slaughter of his cattle, may properly be considered as an agreement or contract within the meaning of Sec. 48, Art. IV, but we do not see how it can reasonably be said to be lacking express authority of law. Sec. 14211 specifically provides such express authority as follows: "The Commissioner of Agriculture is hereby authorized to enter into an agreement with the cooperating agencies of the ...