State ex rel. Kellogg v. Bishop

• Decision Date: 31 March 1867
• Citation: 41 Mo. 16
• Parties: STATE OF MISSOURI ex rel. SANDFORD B. KELLOGG, Petitioner, v. WILLIAM BISHOP, State Treasurer, Respondent.
• Court: Missouri Supreme Court

41 Mo. 16

STATE OF MISSOURI ex rel. SANDFORD B. KELLOGG, Petitioner,

v.WILLIAM BISHOP, State Treasurer, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Petition for Mandamus.

Knox & Smith, for petitioner.

The act of March 9, 1863, under which the Union military bonds were issued, created a fund called the “Union military fund,” and pledged the same for the payment and redemption of all the bonds issued, principal and interest.

The act appropriates certain taxes “levied and to be collected” to that fund; in like manner it appropriates “all money that may come into the treasury of the State from appropriations made by the Congress of the United States to the State of Missouri for the purpose of paying the military forces thereof, or for indemnity for expenses incurred in suppressing the rebellion.” All money appropriated to, said fund “shall be set apart by the Treasurer for that purpose only;” that is, for the redemption of Union military bonds, principal and interest.

Congress, by an act passed April 17, 1866, made an appropriation to the State of Missouri, for the purpose of paying the military forces thereof, and for expenses incurred in suppressing the rebellion, to the amount of six and a half millions, and $600,000 of it has been paid into the treasury of the State. By the act of March 9, 1863, that money is not only pledged for the payment and redemption of outstanding overdue Union military bonds, but the Treasurer is directed to set it apart for that purpose only.

In contemplation of law, the appropriation by Congress, as soon as made was set apart and pledged in good faith most sacredly for the payment of the Union military bonds. When the draft for $600,000 was signed and delivered, payable to the order of the State Treasurer, in contemplation of law the money was in the Union military fund, available for the payment or redemption of said bonds. The act of March 12, 1866, directs how said fund shall be applied or paid out in redemption of overdue Union military bonds. The treasurer has no discretion.

The question now arises, have those two acts of March 9, 1863, and March 12, 1866, or either of them, been repealed? The recent acts of March 11 and 12, 1867, creating the School fund, and to provide for the payment of the State indebtedness, do not in terms repeal them. In the absence of express words, a subsequent act in regard to the same subject matter will not be construed to repeal the former unless totally inconsistent with it; in other words, the court will carry out and give effect to both laws if such construction be possible. But when the repeal of a law is in direct violation of the pledged public faith, and will work injustice and injury to the State credit and creditors, and in violation also of the vested rights of those who received and hold said Union military bonds, relying upon their prompt redemption out of a special appropriation made by Congress to the State, and guaranteed or set apart for that purpose only, nothing less than clear, express words to that effect would warrant the conclusion that the Legislature intended to repeal the law

An apparent inconsistency or contradiction consists in the use of the word ““first,” in the act creating or providing a “School fund,” to designate the moneys set apart and to be invested in United States bonds. The object of the law is effected if $1,500,000 are set apart out of the appropriation made by Congress from the Union military fund after redeeming the pledged faith of the State in the payment of the Union military bonds. The time in this case is not material; the U. S. bonds can be purchased at any time, and the interest accruing is alone applicable for the use of the Public Schools. The amount appropriated by Congress is ample for the purpose of said law, being six and a half millions.

The word “first,” in said act providing for a School fund, obviously should be construed to mean the first money received from the appropriation by Congress available for the purpose of the law. The word “first” was used in said law in reference to the pending act for the payment of the State indebtedness out of the surplus received from Congress after paying the Union militay bonds. It is a well known fact that it was so used, and the passage of the law providing for a State School fund was insisted upon by its friends as a condition precedent to the passage of the law to pay the State overdue coupons out of the surplus of said appropriation.

Attorney-General, for respondent.

HOLMES, Judge, delivered the opinion of the court.

The petitioner states that, on the first day of May, 1867, he presented at the office of the State Treasurer certain “Union military bonds” of the issues of 1863 and 1865, amounting in all to some forty thousand dollars, and requested the Treasurer to receive, arrange and pay the same as required by law; that on that day the State Treasurer had in the treasury, or subject to his order, besides other money, the sum of six hundred thousand dollars received from the appropriations made by Congress to the State of Missouri for expenses incurred in suppressing the rebellion, and being money which had been appropriated and pledged by the act of the General Assembly of the State, approved March 9, 1863 (Laws of 1863, p. 25), for the purpose of redeeming Union military bonds; that said money, so being in the treasury was sufficient to pay all the bonds presented by the petitioner on the day aforesaid, and that the Treasurer had refused to pay the same; wherefore, he prays for a writ of mandamus.

The answer of the defendant admits the facts stated in the petition, but alleges in justification of his refusal to pay said bonds, that the money received out of the appropriation by Congress had been specifically disposed of and appropriated under the acts of the General Assembly of the State. The one entitled “An act creating a permanent School fund,” approved March 11, 1867; and the other act entitled “An act to provide for the payment of the interest upon the State debt,” approved March 12, 1867 (pp. 166, 168, Laws 1867)--first, for a permanent School fund, and second, “for the Seminary fund and to pay outstanding Union military bonds,” and for the payment of interest on the public debt incurred on account of railroads; that the said sum of six hundred thousand dollars was the first and only money yet received into the treasury from the United States under the act of Congress, and that, therefore, he was not required nor permitted by law to pay these bonds of the plaintiff out of this money. The act of March 9, 1863, created a...