State ex rel. Baird v. Holladay

• Decision Date: 31 October 1877
• Citation: 66 Mo. 385
• Parties: THE STATE ex rel. BAIRD v. HOLLADAY, State Auditor.
• Court: Missouri Supreme Court

66 Mo. 385

THE STATE ex rel. BAIRD

v.HOLLADAY, State Auditor.

Supreme Court of Missouri.

October Term, 1877.

Petition for Mandamus.

John F. Williams and Jas. Ellison for relator.

A payment made on a illegal demand cannot be afterwards applied to a legal demand. Treadwell v. Moore, 34 Me. 115. Respondent's return does not allege that the $5,000 paid January 1st, 1877, was paid on the appropriation of April 6th, 1877, but says that by reason of that payment he will rebate from the appropriation of April 6th. The Legislature on April 6th, 1877, set apart $7,500, then in the treasury, or to be in it, for the Normal School. That appropriation certainly did not appropriate out of money that had been paid out three months before. An appropriation is the setting apart of a specific amount for a specific purpose.

Thomas Holladay pro se.

The appropriation act of April, 1877, was made for the fiscal year of 1877, commencing 1st January and ending December 31st, 1877, and hence it relates back to January 1st, 1877, and although the warrant for the $5,000 was drawn in January for the first six months of the year on the proper requisition and demand of the officers of said Normal District, it must go as a credit on said appropriation, and the relator, inasmuch as he got the money and used it for said Normal School, is estopped from gainsaying the transaction on the ground of irregularity, or otherwise.

SHERWOOD, C. J.

The object sought to be accomplished by the present writ is to compel respondent to pay to relator, as treasurer of the Normal School at Kirksville, certain money, alleged to be due under appropriations made by the Legislature.

The demurrer to the Auditor's return, admits the truth thereof. It is admitted thereby, that under the act of April 6th, 1877, the relator is entitled to the sum of $7,500, for the year 1877; that under the act of March, 1873, relator was authorized to present to respondent, every six months, (January and July,) his claim for $5,000, and receive a warrant therefor; but the last named act was abrogated by the adoption of the new Constitution, November 30th, 1875; that relator did, in January, 1877, present to respondent his claim for $5,000, which was duly audited, and a warrant therefor issued; that there then remained still due to relator, for the fiscal year 1877, under the act of April 6th of that year, the sum of $2,500; that since the passage of that act, relator had made a demand of $3,750, which respondent refused to audit, because, with the $5,000 previously paid, the sum demanded would exceed the amount due relator under the act of 1877, in the sum of $1,250. Respondent concludes by averring his willingness to draw his warrant in favor of relator for $2,500, being the balance due under the act of April, 1877.

In the case of the St. Joseph Board of Public Schools v.Patten et al., (62 Mo. 444,) we had under discussion, the effect produced by the new Constitution in respect to two acts of the Legislature, one of date March 3rd, 1866, the other March 20th, 1872, requiring the county court of Buchanan county, upon annual estimates furnished by that board, to levy a tax, not exceeding seven mills on the dollar, to meet such estimates. The county court being furnished with such estimates for 1876, refused to obey the legislative mandate, and levy a tax as high as seven mills, but levied one for four mills only, and we upheld that court in its action, and refused to compel a tax-levy to the extent claimed by the relator, and allowed by the statute; holding that the present constitution having gone into effect on the 30th of the preceding November, became, so far as concerned the point then under discussion, immediately and not prospectively, operative; needed no legislation in its aid; extinguished the legislative limit and measure of taxation, and substituted in lieu thereof, that ordained by the organic law. And this ruling was made, notwithstanding it was strenuously insisted that as there was a proviso which allowed the constitutional rate of taxation to be increased, which could not be accomplished but by subsequent legislation, that, therefore, both restriction against, and proviso for, an increased rate, had alike to invoke and to await subsequent ancillary legislation.

To such argument this court replied that the effect thereof would be to make the constitutional provision there mentioned, as well as others, “mere abstractions, mere declarations of opinion of the convention which framed the constitution, * * effecting no constitutional barriers against legislative extravagance, or constitutional assurances of retrenchment in public expenditures, and taxation consequent thereon;” and that “any construction which makes these constitutional restrictions dependent on legislative action destroys their vitality,” and renders them “lifeless.” That case affords a very marked instance of an organic law, not operating on the future alone; not being merely of prospective operation, but springing into efficient being on the instant of its adoption, overturning and hurling from its pathway, every antecedent inconsistent statute. Unless it can be successfully shown that the rule asserted in the Patten case rests upon a different foundation than that presented by the facts in this one; unless, in short, it can be...