State ex rel. Gass v. Gordon

• Citation: 181 S.W. 1016,266 Mo. 394
• Parties: THE STATE ex rel. HOWARD A. GASS, State Superintendent of Public Schools, v. JOHN P. GORDON, State Auditor
• Decision Date: 22 December 1915
• Court: United States State Supreme Court of Missouri

181 S.W. 1016

266 Mo. 394

THE STATE ex rel. HOWARD A. GASS, State Superintendent of Public Schools, v. JOHN P. GORDON, State Auditor

Supreme Court of Missouri

December 22, 1915

A. T Dumm for relator.

(1) The terms "ordinary revenue," as used in section 6 of article 11 of the Constitution of 1875 and in the Appropriation Act of 1915 (Laws 1915, p. 89), and "State revenue," as used in section 7 of article 11 of the Constitution, are synonymous, and include all receipts into the State Treasury to the credit of the revenue fund. Secs. 6 and 7, art. 11, Constitution 1875; Laws 1915, p. 89; Laws 1895, p. 18; 34 Cyc. 1691; United States v. Bromley, 12 How. (U.S.) 97; Bates v. Porter, 74 Cal. 224; People ex rel. v. Supervisors, 4 Hill (N. Y.), 23; People v. Railroad, 34 Barb. (N. Y.) 134; Iverson Brown's Case, 91 Va. 779; State ex rel. v. School Fund, 4 Kan. 268; Commonwealth v. Bailey, 3 Ky L. R. 117; Brown v. Elder, 32 Colo. 535; United States v. Mayo, 1 Gall. 396; State v. Ewing, 22 Kan. 708; Donelson v. State, 3 Lea (Tenn.), 695; Yancey v. Mfg. Co., 33 Ga. 624; Lamar W. & E. L Co. v. Lamar, 128 Mo. 202. (2) Section 7 of article 11 of the Constitution of 1875 is a mandate to the Legislature to appropriate not less than twenty-five per cent of the State revenue, exclusive of the interest and sinking fund, to be applied annually to the support of the public schools. And the exclusion of the "interest and sinking fund" is the inclusion of all other receipts into the treasury to the credit of the revenue fund.

Robert Burkham, Attorney for the Board of Education of the City of St. Louis; Gage, Ladd & Small, Attorneys for the School District of Kansas City; H. K. White, Attorney for the School District of the City of St. Joseph; Ed. D. Merritt, Attorney for the School District of Springfield; Kelsey & Cameron Attorneys for the School District of Joplin; Mahan, Smith & Mahan, Attorneys for the School District of Hannibal; Charles E. Yeater, Attorney for the School District of Sedalia; A. G. Young, Attorney for the School District of Webb City; and Arthur B. Chamier, Attorney for the School District of Moberly, Amici Curiae.

(1) The expression "ordinary revenue" employed in the Act of 1915 is necessarily equivalent to the expression "State revenue" as used in article 11, section 7, of the Constitution. (2) "State revenue" includes inspection fees and the like whether this expression be considered, 1st, independently: State ex rel. v. Ewing, 22 Kan. 708; United States v. Bromley, 12 How. (U.S.) 88; Van Sant v. Stage Co., 59 Md. 330; Power & Conduit Co. v. Buffalo, 131 A.D. 485; or, 2nd, in connection with the context: Art. 11, secs. 6, 8, Constitution.

OPINION

In Banc.

Mandamus.

For judgment see opinion, page 422.

FARIS J.

-- This is an original proceeding by mandamus, brought by relator as State Superintendent of Public Schools, to compel respondent, as State Auditor, to set apart and certify for payment to the relator for the use of the public schools of the State, the sum of $ 496,587.34, under the Act of February 12, 1915 (Laws 1915, p. 89), which required the State Auditor to ascertain and set apart one-third of the ordinary revenue for the support of the public schools.

The case is here upon the pleadings and an agreed statement of facts. The pleadings are conventional, and since no point is made touching them, we need not cumber the books with them. The agreed statement of facts, which we apprehend will be found sufficient to convey an understanding of the conditions and issues, runs thus:

"It is agreed that during the fiscal year ending June 30, 1915, there were paid into the State Treasury to the credit of the General Revenue Fund, the following sums from the different sources mentioned:

1.

From county collectors (tax on real and per-

sonal property)

$ 3,851,174 61

2.

County foreign insurance tax

365,449 17

3.

Private car tax

9,870 90

4.

Express companies' tax

44,737 68

5.

Notaries' commissions

12,336 00

6.

Land Department fees

556 22

7.

Fees earned in office of State Auditor

8,380 88

8.

Fees earned by office of Secretary of State

9,719 30

9.

Incorporation tax (fees paid by corporations

upon their incorporation and upon their in-

crease of capital stock)

87,017 50

10.

Fees from Excise Commissioner of city of St.

Louis

42,462 00

11.

Proceeds of sale of beer stamps

460,858 27

12.

Interest received from State depositaries

147,223 35

13.

Sale of oil stamps (being fees from oil inspec-

tions)

150,466 80

14.

Interest on deposit of fees by St. Louis Excise

Commissioner

47 17

15.

Interest on deposit of Fish Commission

18 74

16.

Excess fees from clerk of Supreme Court, clerk

of St. Louis Court of Appeals, clerk of Spring-

field Court of Appeals, clerk of Kansas City

Court of Appeals

3,573 62

17.

Fees collected by Excise Commissioners of St.

Louis county

3,713 02

18.

Receipts from sale of laws

2,018 50

19.

Receipts from old bond and coupon account

15,270 43

20.

Receipts from amounts refunded

36,032 06

21.

Receipts from fines assessed against lumber

companies for violation of Anti-Trust Act

252,728 65

22.

Receipts from fees of Poultry Experiment Sta-

tion

5,280 96

23.

Receipts from fees of Warehouse and Grain

Department

127,123 37

24.

Moneys earned by State Auditors' Examiners

6,702 08

25.

Receipts from insurance on Federal Soldiers'

Home

2,308 92

26.

Receipts from sale of old furniture

165 00

27.

Receipts for Itinerant Vendors Licenses

25 00

28.

Receipts from fees of Bureau of Labor

2 07

29.

Receipts from fees of Board of Agriculture

25 00

30.

Receipts from fees of Fruit Experiment Station

299 72

31.

Receipts from Fish Commissioner's refund

301 05

32.

Transferred from Insurance Department Fund

125,000 00

33.

Transferred from Factory Inspection Fund

6,271 93

34.

Transferred from Text-Book Fund

990 00

35.

Receipts from fees of Public Service Commission

36,946 87

"The aggregate of the items enumerated above, numbered 1, 2, 3 and 4, is $ 4,271,232.36. The respondent, State Auditor, did on July 3, 1915, set apart and certify to the relator one-third of said sums, that is to say, $ 1,423,744.12, as the total amount to be apportioned by relator for the benefit of the public schools of the State.

"The respondent, as State Auditor, and his predecessors in said office, have continuously annually for many years prior to the present year, set apart and certified to the relator and the predecessors of the relator in the office of State Superintendent of Public Schools, in addition to one-third of the moneys derived from the first four sources above mentioned, one-third also of the moneys derived from the following sources, to-wit:

5. Notaries commissions.

6. Land Department fees.

7. Fees earned in office of State Auditor.

8. Fees earned by office of Secretary of State.

9. Incorporation tax.

10. Fees from Excise Commissioner of city of St. Louis.

11. Proceeds of sale of beer stamps.

12. Interest received from State depositaries.

13. Sale of oil stamps.

14. Interest on deposit of fees by St. Louis Excise Commissioner.

15. Interest on deposit of Fish Commission.

16. Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals.

17. Fees collected by Excise Commissioners of St. Louis county.

"That the moneys derived from said sources, numbered 5 to 17, both inclusive, and paid into the State Treasury to the credit of the General Revenue Fund during the year ending June 30, 1915, amounted in the aggregate to $ 926,372.87, no portion of which has been set apart and certified by respondent as State Auditor to the relator, for the year ending June 30, 1915.

"Neither the respondent, as State Auditor, nor any of his predecessors in said office, have heretofore set apart or certified to the relator or his predecessors in the office of Superintendent of Public Schools, any portion of the moneys derived and paid into the State Treasury to the credit of the General Revenue Fund from the following sources:

18. Receipts from sale of laws.

19. Receipts from old bond and coupon account.

20. Receipts from amounts refunded.

21. Receipts from fines assessed against lumber companies for violations of Anti-Trust Act.

22. Receipts from fees of Poultry Experiment Station.

23. Receipts from fees of Warehouse and Grain Department.

24. Moneys earned by State Auditors' Examiners.

25. Receipts from insurance on Federal Soldiers' Home.

26. Receipts from sale of old furniture.

27. Receipts from Itinerant Vendors' Licenses.

28. Receipts from fees of Bureau of Labor.

29. Receipts from fees of Board of Agriculture.

30. Receipts from fees of Fruit Experiment Station.

31. Receipts from Fish Commissioner's refund.

32. Transferred from Insurance Department Fund.

33. Transferred from Factory Inspection Fund.

34. Transferred from Text-Book Fund.

35. Receipts from fees of Public Service Commission.

"Some of the laws from which these moneys were derived and paid into the State Treasury are of comparatively recent enactment, as will be pointed out in the briefs to be filed.

"The relator here expressly waives and abandons any claim to a setting apart or a certificate to him by respondent of any part of the moneys derived from the sources now to be mentioned and already referred to in this statement by numbers, as follows:

19. Receipts from old bond and coupon account.

20. Receipts from amounts refunded.

25. Receipts from insurance on Federal Soldiers' Home.

26. Receipts from sale of old furniture.

27. Receipts from Itinerant Vendors' Licenses.

31. Receipts from Fish Commissioner's refund.

And it is agreed that the relator's petition be taken and regarded as amended by striking...