State ex rel. Cobb v. Thompson
| Decision Date | 17 March 1928 |
| Docket Number | No. 28641.,28641. |
| Citation | 5 S.W.2d 57 |
| Parties | THE STATE EX REL. ROBERT S. COBB v. L.D. THOMPSON, State Auditor. |
| Court | Missouri Supreme Court |
Freeman L. Martin, DeWitt F. Lawson and Benj. F. Wilson for relator.
(1) When any office shall become vacant the Governor, unless otherwise provided by law, shall appoint persons to fill such vacancies, who shall continue in office until a successor shall have been duly elected or "appointed and qualified according to law." Constitution, art. 5, sec. 11; Laws 1919, p. 82, sec. 1. (2) Even if the peculiar phraseology of the act does make it appear to be a bit ambiguous, then the legislative intent is necessary in order to arrive at a just, reasonable and intelligible construction and interpretation of said act, and such just, reasonable and intelligible construction is ascertainable only by the cardinal rules of construction and interpretation, to-wit: (a) When the terms of statutes are ambiguous, resort may be had to its title as a clue or guide to its meaning. Dablin v. Mo. Comm. for Blind, 262 S.W. 420; State ex rel. Bixby v. St. Louis, 241 Mo. 231; Glaser v. Rothchild, 221 Mo. 180; Straughan v. Meyers, 268 Mo. 580. A careful reference to the title of said act fails to disclose the slightest inference that it is temporary; but, on the other hand, all of the words or terms used in said title import permanency. (b) The intention of the Legislature being ascertained with reasonable certainty, words may be supplied in the statute so as to give it effect and avoid any repugnancy or any inconsistency with such intention. The meaning of words may be limited, restrained or expanded by the construction of the court when it becomes necessary in order to make the law harmonize with reason and properly express what was in fact intended by the lawmakers in enacting the law. St. Louis v. Christian Brothers College, 257 Mo. 541; Stack v. General Baking Co., 283 Mo. 410; State ex rel. Tadlock v. Mooneyham, 212 Mo. App. 573; State ex rel. Eaton v. Gmelich, 208 Mo. 152. To accomplish the same purpose, words omitted may be read into the statute. Lewis' Sutherland, Stat. Const. (2 Ed.) sec. 382; State ex rel. Ins. Co. v. King, 44 Mo. 283; State ex rel. Harvey v. Sheehan, 269 Mo. 427. (c) Legislature inadvertently omitted the phrase (and until their successors are appointed and qualified); and which, under the foregoing and well-established rules of construction and interpretation, should be read into said statute. Straughan v. Meyers, supra. "That construction of a statute which would make it unreasonable and absurd should not be given." Rowe v. Tuck (Ga.), 99 S.E. 303; Thompson v. State, 20 Ala. 62; Darlington Lumber Co. v. Mo. Pac. Ry. Co., 216 Mo. 658; Perry v. Strawbridge, 209 Mo. 621; State v. Wiggins Ferry Co., 208 Mo. 622; State v. Reynolds, 209 Mo. 161; Reddick v. Territory, 1 Mo. 147. "A thing which is in the object, spirit and meaning of the statute is as much within the statute as if within the letter." Bryant v. Russell, 127 Mo. 422; Buck v. St. Louis Union Tr. Co., 267 Mo. 644; Lewis-Sutherland, Stat. Const. (2 Ed.) sec. 379. (d) Actual construction given a statute for a long time by those charged with its determination, acquiesced in by courts and legislatures, is strong evidence of its true meaning. Macon County v. Williams, 224 S.W. 835; Lewis-Sutherland, Stat. Const. (2 Ed.), sec. 472; Opinion of Justices, 126 Mass. 551; Pennoyer v. McConnaughy, 140 U.S. 1; Hahn v. United States, 107 U.S. 402.
North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.
(1) The act creating the State Negro Industrial Commission was temporary and has expired by limitation of its terms. Laws 1919, p. 82. (2) It is a well settled rule of law and policy that any person attempting to put his hand into the public purse must show a clear right so to do, nor should the court grant the public moneys to any person unless it affirmatively appears that the Legislature so intended. (3) A temporary act cannot be extended beyond the limitation of its terms by subsequent appropriations, purporting to provide for the carrying out of its terms. Leake v. Colgan, 125 Cal. 413.
By our writ relator seeks to compel respondent to issue a warrant in his favor for $11.50, expenses incurred in connection with the performance of his duties as secretary of the Missouri State Negro Industrial Commission. The pleadings are usual, not challenged, and the facts are admitted as follows:
On February 12, 1918, the Governor appointed certain persons, one from each congressional district, members of an unofficial body, to be known as the Negro Industrial Commission. The persons selected organized and functioned as such. The commission was legalized by the next General Assembly enacting a law creating the Missouri State Negro Industrial Commission (Laws 1919, p. 82), which act is as follows:
Thereafter the commission was officially organized and held regular meetings, for which the members received their actual expenses. Relator was elected secretary, and incurred, as such, actual expenses amounting to $11.50, which was certified by the commission to respondent as State Auditor, with a request that he issue a warrant therefor, to be paid by the State Treasurer. Respondent refused and still refuses to issue such warrant.
Succeeding governors appointed new commissioners at the end of each four-year period, and succeeding legislatures made appropriations to carry out the provisions of the act. Respondent, as State Auditor, regularly issued warrants in payment of the salary of the secretary and the actual expenses of the commissioners. The State Treasurer paid the warrants.
Four years after the enactment of the law, its author introduced a bill to repeal it, which was defeated. Since the enactment of the law the commission has been functioning as one of the state boards.
Respondent contends the commission expired at the end of the four-year period by the terms of the act.
Relator contends the intention of the Legislature was to create a permanent commission.
The validity of the law is not challenged. There is no conflict in its provisions, and it is not afflicted with either clerical errors, ambiguous words or phrases. Relator points to no defect in the language of the statute. His contention is limited to the claim that the phrase "and until their successors are appointed and qualified" was inadvertently omitted after the word "Senate" in the last line of Section 1 of the act. The reasons given are:
(a) That it would be "absurd, unjust and unreasonable to charge that the Legislature intended to and did enact a statute to discover, ferret out, survey and recommend remedies, educational, moral and industrial, for the betterment of the negroes of Missouri for only a period of four years."
(b) "That the work to be accomplished by the...
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