State ex rel. Gold v. Dunne, 52801

• Decision Date: 11 December 1967
• Docket Number: No. 2,No. 52801,52801,2
• Citation: 421 S.W.2d 268
• Parties: STATE of Missouri ex rel. Julius GOLD, Appellant, v. Thomas C. DUNNE, Treasurer of St. Louis County, Missouri, Respondent
• Court: Missouri Supreme Court

Page 268

421 S.W.2d 268

STATE of Missouri ex rel. Julius GOLD, Appellant, v. Thomas C. DUNNE, Treasurer of St. Louis County, Missouri, Respondent.

No. 52801.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1967.

Byron L. Kinder, David Brydon, Jefferson City, for appellant.

Joseph B. Moore, St. Louis County Counselor, Murry A. Marks, Asst. County Counselor, Clayton, for respondent.

HYDE, Special Commissioner.

Mandamus to compel the Treasurer of St. Louis County to comply with an order of the Governor of Missouri to issue a draft for $15,000.00 to relator. The Governor acting under authority of Sec. 549.020 (statutory references are to RSMo and V.A.M.S.) ordered a remitter of $15,000.00 of $20,000.00 paid on a judgment of forfeiture of a bond for appearance of one Thomas E. Galloway charged with second degree murder. Relator appeals from the judgment dismissing his petition and quashing the writ.

The first question is our jurisdiction which is invoked on the ground that 'the construction of the revenue laws of this state' is involved. Sec. 3, Art. V, Const. Sec. 7, Art. IX, Const., provides 'the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state * * * shall be distributed annually to the schools of the several counties according to law.' See also Sec. 165.637. In State ex rel. Hadley v. Adkins, 221 Mo. 112, 119, 119 S.W. 1091, 1093, it was held 'that the term 'revenue law' covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy, and collection of it,' regardless of 'where the law is to be found, whether under the title of 'revenue' or any other title, so long as it relates to the subjectmatter of revenue.' See also State ex rel. Ginger v. Palmer, Mo.App., 194 S.W.2d 736, decided Mo.Sup.Banc, 198 S.W.2d 10; Pullum v. Consolidated School District No. 5, Stoddard County, 357 Mo. 858, 211 S.W.2d 30, 32; Mathison v. Public Water Supply Dist. No. 2 of Jackson County, Mo.Sup., 401 S.W.2d 424. The Governor's authority of remission of forfeited funds affects both disbursement and preservation of funds to be used as revenue for operation of schools. Therefore, we hold we have jurisdiction.

The case was submitted on an agreed statement of facts from which the following appear:

March 7, 1963, one Thomas E. Galloway was indicted in St. Louis County for second degree murder.

March 15, 1963, Relator and others signed Galloway's bail bond, Relator acting as attorney in fact for other sureties obligated for $20,000.00.

October 28, 1963, Galloway failed to appear for trial and his bond was ordered forfeited. A motion was filed by the Prosecutor for judgment of bond forfeiture which was sustained November 15, 1963, and execution issued on December 3, 1963, returnable March 2, 1964, prior to which time Relator paid into court $20,000.00.

January 20, 1964, the State filed a motion for the Circuit Clerk to pay the $20,000.00 to the Treasurer of St. Louis County for the School Fund, which was sustained February 7, 1964, and payment was made. Thereafter, Galloway was recaptured, tried and found guilty of second degree murder and is serving sentence therefor in the Missouri Penitentiary.

August 24, 1964, Relator made application to the Governor of Missouri for remitter of the bond forfeiture under the provisions of Sec. 549.020, RSMo V.A.M.S.

September 22, 1964, the St. Louis County Council made an order for the Treasurer to distribute the amount paid by the Relator and other amounts held by him to the school districts of the county and this was done.

January 8, 1965, Honorable John M. Dalton, then Governor of Missouri, issued an order remitting to relator $15,000.00 of the $20,000.00 forfeiture; and ordering the Treasurer of St. Louis County to issue his draft for that amount. The order recited that 'Julius Gold expended a great deal of time, money and effort in attempting to locate the said Thomas E. Galloway and return him to the State of Missouri'; that 'a great hardship would be suffered' by the sureties 'if the forfeiture was not remitted'; and that 'equity and good conscience entitle' the sureties 'to a remitter.'

It was further stipulated: 'Respondent, as County Treasurer, has the duty of collecting all such forfeitures as this one and there constantly accrues to him fines, forfeitures and penalties which are to be credited to the school fund and paid out from time to time, as provided by law. At all distribution times since January 1, 1963, this fund, composed of fines, forfeitures and penalties, has far exceeded Fifteen Thousand Dollars ($15,000.00).'

The view of the trial court was 'that the respondent lacks authority to make the payment requested by relator after distribution of the fund to the beneficiaries, the school districts, from other funds subsequently obtained.' However, it appears that application for remission was made to the Governor the month before the order of the St. Louis County Council distributing the funds to the school districts. Moreover, Relator had no good basis for applying for a remitter until Galloway had been recaptured and returned for trial. Furthermore, 'funds of school districts are the property of the state, and not the private property of the school districts,' School District of Mexico, Missouri, No. 59 v. Maple Grove School District No. 56 of Audrain County, Mo.Sup., 359 S.W.2d 743, 746; School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909, 915.

The Governor's authority is stated in Sec. 549.020, as follows: 'For any fine imposed by any statute, and for any forfeiture of a recognizance, where the securities are made liable, the governor shall have power to grant a remitter, when it shall be made to appear to him that there is by such fine or forfeiture an injustice done, or great hardship suffered by the defendant or defendants, which equity and good conscience would seem to entitle such defendant or defendants to be relieved from.'

In State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, 932, we said this section 'vests the governor with power, on ex parte hearing, to grant remitter event though the defendant is never produced and even after final judgment on the recognizance.' See also Annotation, 77 A.L.R.2d 988--991, for cases permitting remitter after final judgment on order of a governor. Respondent, however, claims the governor has no authority to do so after final judgment when rights of third parties (school districts as distributees) have intervened; and that mandamus is not the proper remedy for relator. Respondent argues that the funds he receives from fines, forfeitures and penalties are trust funds 'under jurisdiction of the county court' as provided by Sec. 171.060 (in St. Louis County the County Council, Sec. 6, Art. III, Charter) and are 'to be collected annually and distributed as provided in Sec. 161.051' ('at the time of the distribution of state school moneys'). See also 163.081 as to state aid, Laws 1963, p. 200. Respondent further contends the rights of third parties, the school districts of the county, have intervened and this terminates his authority, citing Summit Fidelity & Sur. Co. v. Police Jury of Rapides Parish, La.App., 145 So.2d 395, and Byrum v. Turner, 171 N.C. 86, 87 S.E. 975. In the Louisiana case, the governor did not remit the forfeiture of a bail bond until eight months after the amount of the bond had been paid. The sheriff was entitled to a statutory commission of ten per cent and the district attorney twenty per cent of the amount of the bond and these commissions had been paid to them. The court said: 'In the case now before this court, the Governor did not exercise his pardoning power and remit the forfeiture of the bail bond until some eight months after the amount forfeited had been paid to the police jury. The thenvested property rights of this governmental body and of the public officers entitled to commissions or fees for the amount thus collected, could not subsequently be divested by the exercise of the Governor's pardoning power, which extends only to criminal liabilities and which cannot destroy vested civil property rights of individuals or of other governmental units.' 145 So.2d l.c. 398. The court mainly relied on cases as to the effect of a pardon to authorize recovery of a fine.

The North Carolina case was such a case, where the appellant after being pardoned by the governor sought return of a fine, which had been paid to the treasurer of board of education, the Court held against the appellant's right to recover it, saying 87 S.E. l.c. 976: '* * * If a fine has been imposed and has been paid into the treasury of the state, or in this state to the treasurer of the board of education, before the pardon is granted, the money cannot be recovered back. (Citations.) But a pardon will work a remission of a fine, although it has been paid, and will entitle the person pardoned to have the money returned if it...