State ex rel. Averill v. Smith

• Decision Date: 06 December 1943
• Docket Number: 38532
• Citation: 175 S.W.2d 831,352 Mo. 23
• Parties: State of Missouri, at the Relation of Roy Averill, Secretary-Treasurer of the State Board of Registration for Architects and Professional Engineers, Relator, v. Forrest Smith, State Auditor of the State of Missouri
• Court: Missouri Supreme Court

175 S.W.2d 831

352 Mo. 23

State of Missouri, at the Relation of Roy Averill, Secretary-Treasurer of the State Board of Registration for Architects and Professional Engineers, Relator, v. Forrest Smith, State Auditor of the State of Missouri

No. 38532

Supreme Court of Missouri

December 6, 1943

Peremptory writ of mandamus issued.

A L. McCawley for relator.

(1) The Constitution of Missouri is not a grant of legislative power to the General Assembly. It is a limitation upon legislative power. 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. 59 C.J., p. 238, sec 382b; 7 Words and Phrases, p. 370; Constitution, Sec. 1, Art IV; Slack v. Jacob, 8 W.Va. 612; Glover v. Sims, 128 W.Va. 407; Brams v. State, 262 N.W. 89; State v. Shelby, 333 Mo. 1036. (2) Relator's demand on the respondent is not based on any claim arising out of any contract or agreement entered into violation of the provisions of Section 48, Article IV of the Constitution, or in violation of the provisions of Chapter 105, Revised Statutes of Missouri, of 1939, the State Purchasing Agent Law. 14 C.J.S., p. 1182; 13 C.J., p. 634; sec. 703f; Fullington v. Ozark Poultry Co., 327 Mo. 1167. (3) The burden rests upon the party questioning the constitutional validity of an act of the Legislature to establish its unconstitutionality beyond a reasonable doubt and if its constitutionality remains in doubt, such doubt must be resolved in favor of its validity. Graves v. Purcell, 337 Mo. 574; State v. Ward, 328 Mo. 658; State v. Adkins, 284 Mo. 680; State ex rel. Crutcher v. Koelin, 332 Mo. 1229; State v. Adington, 77 Mo. 110; State v. Cantwell, 179 Mo. 245. (4) The construction given to a constitutional provision by the Legislature in passing a law, and by the Governor in approving it, though not binding on the courts is persuasive. Gantt v. Brown, 244 Mo. 271. (5) Fees collected by a self-sustaining board, though under the management of the State, are not State Funds within the meaning of any provision of Article IV, or of Article X, of the Constitution. Ex parte Lucas, 160 Mo. 218. (6) The State Board of Registration for Architects and Professional Engineers is a self-sustaining board, and fees collected by it are not State Funds within the meaning of any provision of Article IV, or of Article X, of the Constitution. Laws 1941, Secs. 5, 8, pp. 665, 669. (7) An appropriation made by the General Assembly to discharge a moral obligation of the state or any of its departments is not a grant of public money within the meaning of Section 46, Article IV of the Constitution. State ex rel. Baird v. Holliday, 66 Mo. 385; 59 C.J. 198, sec. 342-B; State ex rel. Crow v. St. Louis, 174 Mo. 125; Gross v. Gates, 194 A. 465; State ex rel. Kelly v. Hackmann, 275 Mo. 636; State ex rel. Meals v. Hackmann, 217 S.W. 271; Miller v. Dunn, 14 P. 27. (8) A state officer is not excused from the performance of his duty prescribed by legislative mandate for the reason the General Assembly failed to appropriate funds necessary to pay the expenses of such performance. State ex inf. McKittrick v. Williams, 144 S.W.2d 98; Commonwealth ex rel. School District v. Tice, 128 A. 506; Crane v. Fromiller, 45 P.2d 955; Wiggins v. Kerby, 38 P.2d 315.

Roy McKittrick, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.

(1) Before a department may incur a legal obligation against the State there must be a substantive law authorizing the department to incur the obligation. State ex rel. Kelly v. Hackmann, 275 Mo. 636, 205 S.W. 161; State ex rel. Bybee v. Hackmann, 276 Mo. 110, 207 S.W. 64; State ex rel. Bradshaw v. Hackmann, 276 Mo. 600, 208 S.W. 445; Sec. 48, Art. 4, Mo. Constitution. (2) The agreement or contract creating the obligation must be entered into in strict compliance with the requirements of law. Sec. 48, Art. 4, Mo. Constitution; State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007; Spitcaufsky v. Highway Comm., 349 Mo. 117, 159 S.W.2d 647; Sager v. Highway Comm., 349 Mo. 341, 160 S.W.2d 757; Dement v. Rokker, 126 Ill. 174; Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186; Carter-Waters Corp. v. Buchanan County, 129 S.W.2d 914. (3) There must be an appropriation with a sufficient unencumbered balance in the quarterly allotment thereof, and a sufficient unencumbered cash balance in the treasury to the credit of the fund out of which the obligation is to be paid. Art. 1, Chap. 73, R.S. 1939; Laws 1933, p. 459; Secs. 10902, 10906, 10907, 10909, R.S. 1939. (4) An additional requirement in creating an obligation against the State, when department creating the same had no funds appropriated. Thatcher v. St. Louis, 343 Mo. 597, 122 S.W.2d 915; Clas v. State, 220 N.W. 185; Dickinson v. Edmondson, 178 S.W. 930; Fergus v. Brady, 115 N.E. 393; Sec. 44, Art. 4, Mo. Constitution; 7 Debates, Mo. Const. Convention of 1875, pp. 326-335, 344-352, 368-375; 59 C.J., p. 222, sec. 368; Sec. 48, Art. 4, Mo. Constitution; Sec. 12, Art. 10, Mo. Constitution; Clarence Special Sch. Dist. v. School Dist., 341 Mo. 178, 107 S.W.2d 5; Trask v. Livingston County, 210 Mo. 582, 109 S.W. 656. (5) These conditions did not exist when relator's obligations were incurred. Batesville Casket Co. v. Fields, 155 S.W.2d 743; Sec. 5, Laws 1941, p. 657; Sec. 8, Laws 1941, p. 659; Sec. 6, Laws 1941, p. 658; Secs. 10907, 14590, 14599, R.S. 1939; Sec. 44, Art. 4, Mo. Constitution. (6) The claims of relator are "claims" against the State, created under "agreements or contracts" within the meaning of Section 48 of Article 4 of the Constitution. United States v. Classic, 313 U.S. 299, 85 L.Ed. 1368, 61 S.Ct. 1031; 7 Words and Phrases, p. 353; State ex rel. McKinley v. Hackmann, 314 Mo. 33, 282 S.W. 1007; Sage v. Wilcox, 6 Conn. 81; Southern Ry. Co. v. Huntsville Lbr. Co., 67 So. 695; Windsor v. International Life Ins. Co., 325 Mo. 722, 29 S.W.2d 1112; Bates v. St. Louis, 153 Mo. 18, 54 S.W. 439; State ex rel. Chapman v. Walbridge, 153 Mo. 194, 54 S.W. 447; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857; Primm v. City of Carondelet, 23 Mo. 23; 9 Words and Phrases, p. 262; Laclede Const. Co. v. Tudor Iron Works, 169 Mo. 137, 69 S.W. 384; Hirsch and Sons Iron & Rail Co. v. Paragould & M.R. Co., 148 Mo.App. 173, 127 S.W. 623; Sec. 48, Art. 4, Mo. Constitution; Secs. 5, 6, 8, Laws 1941, p. 655; Mechem on Public Officers, p. 5, sec. 4; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105; 46 C.J., p. 930, sec. 22; State ex rel. Kelly v. Hackmann, 275 Mo. 636, 205 S.W. 161; State ex rel. Meals v. Hackmann, 217 S.W. 271; Sec. 14590, R.S. 1939. (7) Section 78 of House Bill 50 cannot be said to be valid on the moral obligation theory. Slack v. Jacobs, 8 W.Va. 612; Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612; Brams v. State, 262 N.W. 89; Lustenberger v. Hutchinson, 343 Mo. 51, 119 S.W.2d 921; Sec. 48, Art. 4, Mo. Constitution; Lyon v. Patterson, 87 S.E. 306; Stanton v. State, 5 S. Dak. 515; State ex rel. Coffin v. Horton, 34 Nev. 316; State ex rel. Crow v. Hostetter, 137 Mo. 636, 39 S.W. 270; State ex rel. Meals v. Hackmann, 217 S.W. 271; State ex rel. Kelly v. Hackmann, 275 Mo. 636, 205 S.W. 161; State ex rel. Baird v. Holliday, 66 Mo. 385; State ex rel. Crow v. St. Louis, 174 Mo. 125, 73 S.W. 623. (8) Section 78 of House Bill 50, 62nd General Assembly, is void and unconstitutional because enacted in violation of paragraph 32 of Section 53, Article 4 of the Constitution. Secs. 48, 53, Art. 4, Mo. Constitution.

OPINION

Douglas, C.J.

This is an original proceeding in mandamus brought by the secretary-treasurer of the Board of Registration of Architects and Professional Engineers to compel the State Auditor to issue two warrants requisitioned by the board for the payment of obligations incurred by the board.

The board was created by the legislature in 1941. 1941 Laws, 655. The act creating it directed the board to appoint a secretary-treasurer, authorized it to employ assistants, and to purchase supplies. Money collected by the board was to be kept in a separate fund and none of its expense was to be paid out of any other fund. Payments from the fund were to be made by warrants of the State Auditor issued upon the requisition of the board.

On November 24, 1941 the board appointed relator secretary-treasurer at a salary of $ 4,200 per year. One of the warrants requisitioned is to pay relator's claim for salary from the date of his appointment to October 31, 1942 in the sum of $ 3,931.66. The other warrant is to reimburse relator for a typewriter purchased by him for the board for $ 93.56. To pay these and other obligations of the board the legislature in extra session appropriated $ 30,393.01. The governor vetoed all but $ 3,000 of the appropriation. 1942 Laws Extra Session, 18, 19. The next legislature (1943) appropriated from the fund collected by the board, the balance of $ 27,393.01 to cover obligations incurred during the period from the appointment of the board to December 31, 1942. The governor gave only qualified approval of this appropriation stating he had the assurance of the State Auditor that no warrant for any part of the appropriation would be issued until the validity of the appropriation for the payment of these and other claims was determined by this court. The record before us carries a statement of the State Auditor that he is refusing to issue the warrants on the advice of the attorney general.

Section 48, Article IV of the Constitution provides "The General Assembly shall have no power to . . . pay nor authorize the payment of any claim . . . created against the State . . . under any agreement or contract made without express authority of law; and all such...