State ex rel. Davis v. Smith

• Decision Date: 13 October 1934
• Docket Number: 33739
• Citation: 75 S.W.2d 828,335 Mo. 1069
• Parties: State of Missouri at the Relation of J. Frank Davis, Relator, v. Forrest Smith, State Auditor
• Court: Missouri Supreme Court

75 S.W.2d 828

335 Mo. 1069

State of Missouri at the Relation of J. Frank Davis, Relator, v. Forrest Smith, State Auditor

No. 33739

Supreme Court of Missouri

October 13, 1934

Alternative writ quashed.

Ragland Otto & Potter for relator.

(1) The appropriation act passed at the 1933 Extra Session is not violative of any provision of the Constitution. (2) Appropriation act in question not an attempted amendment of an existing statute. (3) The act made an additional appropriation of $ 3,000.

Roy McKittrick, Attorney-General, Olliver W. Nolen and Harry G. Waltner, Jr., Assistant Attorneys-General, for respondent.

(1) Respondent may raise the issue of constitutionality of Section 12B of House Bill 127, Fifty-seventh General Assembly in Extra Session, when acting upon the opinion of the Attorney-General. State ex rel. Wiles v. Williams, 232 Mo. 56; State ex rel. Equality Savs. & Bldg. Assn. v Brown, 68 S.W.2d 55. (2) As a separate, distinct and additional appropriation Section 12B is unconstitutional as violating the provisions of Section 19 of Article X of the Constitution of the State of Missouri. Sec. 19, Art. X Const. of Mo.; Sec. 33, Art. IV, Const. of Mo.; State ex rel. Broadwater v. Seibert, 99 Mo. 122; Peabody v. Russell, 302 Ill. 111; Dickinson v. Clibourn, 125 Ark. 101; People ex rel. Hopkins v. Kings Co., 52 N.Y. 556. (3) Section 12B does not purport to be an additional appropriation, but is simply a transfer of moneys from the general revenue fund to the Board of Barber Examiners Fund. Sec. 10a, p. 12, Laws 1933-34, Ex. Sess. (4) Section 12B is void and ineffectual as authorizing a transfer of funds from the general revenue fund to the Board of Barber Examiners Fund in that such transfer is violative of the intent and purpose of Section 13525, Revised Statutes 1929. Sec. 13525, R. S. 1929; State ex rel. Hueller v. Thompson, 289 S.W. 338. (5) The acts of the State Board of Fund Commissioners in authorizing the transfer of the $ 3,000 referred to in Section 12B are, (a) indicative of the legislative intent to simply authorize a transfer of moneys from one fund to another; (b) illegal, null and void insofar as they are done under authority of a law which is void and ineffectual by reason of a conflict with the intent and purpose of Section 13525, Revised Statutes 1929; (c) not binding upon respondent concerning the matter here at issue.

Frank, C. J. Gantt, Tipton, Hays and Atwood, JJ., concur; Leedy, J., dissents in separate opinion; Ellison, J., dissents and concurs in dissenting opinion of Leedy, J.

OPINION

FRANK

Mandamus against the State Auditor to compel him to issue to relator a warrant for $ 125 for personal services rendered by relator in April, 1934, as a member of the Board of Barber Examiners.

The pleadings sufficiently present the issues. Respondent adopts the statement of facts made by relator. We also adopt it, in substance, without using quotation marks.

The General Assembly at its regular session in 1933 passed an act, effective February 28, 1933, authorizing and directing the State Treasurer to transfer to the general revenue fund of the State all sums of money in the state treasury to the credit of the following named funds. Then follows the names of numerous funds, including Board of Barbers Fund. [Laws 1933, p. 416.] "At its Extra Session, which convened October 17, 1933, the same General Assembly passed the following Act which became effective January 25, 1934:

"There is hereby appropriated out of the state treasury, chargeable to the general revenue fund, the sum of three thousand ($ 3,000.00) dollars to the Board of Barber Examiners Fund." [Laws 1933-34, Ex. Sess., p. 12.]

On the 19th day of February, 1934, the State Board of Fund Commissioners of the State of Missouri duly made and entered of record an order directing and authorizing the State Treasurer and the State Auditor to transfer upon their respective books from the general revenue fund to the Board of Barber Examiners Fund the sum of $ 3,000, in conformity with the appropriation act last referred to. In accordance with the said order and pursuant thereto, the State Treasurer and the State Auditor on February 27, 1934, transferred the sum of $ 3,000 from the general revenue fund to the Board of Barber Examiners Fund. After passing the act transferring to the general revenue fund all moneys in the state treasury to the credit of the various state boards and commissions, the General Assembly at its regular session duly appropriated out of the state treasury, chargeable to the State Board of Barber Examiners Fund, for the personal services of the members of the State Board of Barber Examiners, the sum of $ 8,550, and for the general expenses of said board the sum of $ 9,450. [Laws 1933, p. 92.] The said appropriation for personal services on the 1st day of May, 1934, had been exhausted. But the $ 3,000 which had been appropriated at the extra session to the Board of Barber Examiners Fund and subsequently transferred to that fund from the general revenue fund by the Board of Fund Commissioners, as heretofore stated, was then, and now is, in the state treasury to the credit of the Board of Barber Examiners Fund.

On the -- day of May, 1934, there was due relator, under the provisions of Section 13525, Revised Statutes 1929, for personal services rendered during the month of April, 1934, while engaged in his duties as a member of the said Board of Barber Examiners, the sum of $ 125. On said date he filed with respondent, as State Auditor, a statement setting forth the services so rendered and the amount due him therefor, duly approved by the secretary of said board, and requested respondent to issue a warrant upon the State Treasurer for the payment thereof. But respondent, notwithstanding, refused, and still refuses, to issue a warrant for the payment of petitioner's salary as aforesaid.

Upon the refusal of respondent to issue a warrant for the salary due relator, the latter instituted this proceeding in mandamus. Upon the filing of the petition respondent entered his voluntary appearance in the cause, waived the issuance of an alternative writ and made return to the petition as and for the writ. The return admitting the allegations of fact in the petition, relator moved for judgment on the pleadings. Only issues of law therefore are presented for determination.

Respondent makes the point that it is apparent from the provisions of Section 13525, Revised Statutes 1929, that the Legislature intended that the salary of the members of the board as well as all expenses of the board should be paid out of the fund created from fees collected by the board or its treasurer, and out of that fund only, and for that reason the Legislature had no authority to appropriate money out of the general revenue fund to pay such compensation or expenses.

The section of the statute in question reads as follows:

"The remuneration of each member shall not exceed the sum of five dollars per day while engaged in their duties as such, exclusive of the necessary traveling and other expenses, to which they shall also be entitled: Provided, however , that all moneys collected by the board or its treasurer shall be paid into the state treasury, there to constitute a fund for the purpose of carrying out the provisions of this chapter. The State Auditor is hereby directed to issue his warrants monthly, upon the State Treasurer out of this fund only, for the payment of the salaries, office and all other necessary expenses of said board. A detailed statement of the expenses incurred by the board, approved by the secretary of said board, shall be filed with the State Auditor before warrants are drawn for the payment of same by the State Auditor, and any surplus remaining in said fund annually after payments above authorized shall be paid into the public school fund of this State."

When the Legislature provided in this section of the statute that the State Auditor should issue his warrants monthly, upon the State Treasurer "out of this fund only," it evidently meant out of the fund theretofore described. Turning to a description of that fund in the same section of the statute, we find it to be a fund created from money collected by the board and deposited in the state treasury. The provision that the salaries and expenses of this board should be paid by warrants drawn on the fund created from the money collected by the board and deposited in the state treasury, and that fund only, evinces a legislative intent that the board should be self-sustaining.

Relator makes a contention that the power of the General Assembly with respect to the public funds raised by general taxation, subject to express constitutional limitations, is supreme. In this connection it is also contended that the Constitution does not restrict the power of the Legislature to make appropriations from the general revenue to compensate public officers for services rendered the public and reimburse them for expenses incurred in the performance of such service.

We agree that the power of the Legislature over these matters subject to constitutional limitations, is supreme. We also agree that the Constitution does not prevent the Legislature from providing that public officers' salaries and expenses shall be paid out of the general revenue. This being true, the Legislature had authority to provide that all or any specified part of the salary and expenses of the Barber Board should be paid out of the general revenue, but it did not do so. On the contrary, it has provided, in express terms, by Section 13525, Revised Statutes 1929, that the salaries and expenses of such board shall be paid by warrants drawn against the fund created from fees collected by the board and paid into the state...