State ex rel. Kelly v. Hackmann
| Decision Date | 06 August 1918 |
| Citation | 205 S.W. 161,275 Mo. 636 |
| Parties | THE STATE ex rel. WILLIAM G. KELLY et al. v. GEORGE E. HACKMANN, State Auditor |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed and remanded.
George Kingsley, Reed & Harvey for appellants.
(1) Courts reluctantly declare unconstitutional any legislative enactment. State ex rel. v. Gordon, 245 Mo. 35; State v. Smith, 233 Mo. 264; State v Railway, 242 Mo. 354. (2) The contention of the State Auditor that all the moneys in the Capitol Building Fund constitute a trust fund for the construction of the Capitol the furnishing and equipment thereof, and that a warrant against the same cannot be drawn in favor of relators, and that attempt to do so would constitute an illegal diversion of the fund, is without merit. Church v. Hadley, 240 Mo. 692. (3) Section 59 is not in contravention of Section 20 of Article 10 of the Constitution. Church v. Hadley, 240 Mo. 692. (4) The contention of the State Auditor that the act of appropriation to relators is in contravention of Sections 46 and 48 of Article 4 of the Constitution is without merit. Ex parte Renfrow, 112 Mo. 591; Cutcher v Crawford, 105 Ga. 180; Waterloo v. Shanahan, 128 N.Y. 345; Stevenson v. Colgan, 91 Cal. 649; Kadderly v. Portland, 44 Ore. 120; Davis v. Gaines, 48 Ark. 370; Hanson v. Hodges, 160 S.W. 395; In re Senate Resolution, 54 Colo. 270; Oklahoma City v. Shields, 22 Okla. 305; Lavin v. Bacon, 14 S.D. 405; Farquharson v. Yeargin, 24 Wash. 549; Lusher v. Sitz, 4 W.Va. 11; DeCamp v. Eveland, 19 Barb. 81. (5) The undisputed facts in the case and the findings of fact by the trial judge completely demolish the defense that there is no money available in the Capitol Building Fund with which to pay relators, and that any payment thereof impairs the obligations of contracts between the State of Missouri and Kelly & Kelly and other persons.
Frank W. McAllister, Attorney-General and John T. Gose, Assistant Attorney-General for respondent.
(1) In the extraordinary remedy of mandamus the following may be said to be elementary: (a) The writ is never granted in doubtful cases; (b) relator must establish his clear legal right; (c) where the underlying proceedings are unauthorized or illegal, the writ will be denied; (d) the writ will never issue where the act commanded would result in the violation of a constitutional provision. High, Extraordinary Remedies, p. 12; 26 Cyc. 150, 151; 19 Am. & Eng. Ency. Law (2 Ed.), 725; State ex rel. v. Thomas, 245 Mo. 71; State ex rel. v. Appling, 191 Mo.App. 592. (2) A fund set aside by direct vote of the people for certain specific purposes is in the nature of a trust fund and cannot, by the General Assembly, be applied to any other purpose than that for which it was created, except by the consent of the people. In re Statehouse Fund, 19 R. I. 391; In re Statehouse Fund, 20 R. I. 707; Graham v. Horton, 6 Kan. 353; Trustees v. Bailey, 81 Am. Dec. 194; State ex rel. v. Cardozo, 28 Am. Rep. 274. (3) The act is violative of Section 20 of Article 10 of the Constitution. The Capitol Building Fund consists of moneys arising from a loan, debt or liability, and can only be applied to the purposes for which they were obtained, or to repay the indebtedness. The Legislature could not touch the fund for any other purpose. "Moneys arising from any loan, debt or liability contracted by the State shall be applied to the purposes for which they were obtained, or to the repayment of such debt or liability, and not otherwise." Sec. 20, art. 10, Mo. Const. (4) The act is in violation of Sections 48 and 46 of Article 4, Constitution of Missouri. There was no express authority of law for a contract or agreement with the Fund Commissioners for the submission of a plan, consequently the Legislature had no power to pass the act in question. Sec. 48. art. 4, Mo. Const.; State ex rel. v. Walker, 85 Mo. 47. The alleged contract or agreement being null and void, there was no liability created against the State, and the act of the Legislature was in effect a mere grant or gift to an individual. Sec. 46, art. 4, Mo. Const. (5) The act violates the obligations of State contracts. No state shall pass any law impairing the obligation of a contract. Sec. 10, art. 1, U. S. Constitution. No law impairing the obligation of contracts can be passed by the General Assembly. Sec. 15, art. 2, Mo. Constitution. "The obligation of a contract is found in the terms in which the contract is expressed." Barlow v. Gregory, 31 Conn. 265. Existing laws which touch and affect the subject matter of a contract are as much a part of the contract as if they were expressly written therein. 6 Ruling Case Law, sec. 243, par. 855; Armour Packing Co. v. United States, 209 U.S. 56; 14 L. R. A. (N. S.) 400; Kessler v. Clayes, 147 Mo.App. 95; McCracker v. Haward, 2 How. (43 U.S.) 611. Constitutional provisions which deny to the state the power to pass laws impairing the obligation of contracts apply as well to contracts made by the state as to those made by individuals. Dartmouth College v. Woodward, 4 Wheat, 519; Cooley's Const. Limitations (6 Ed.), sec. 329; New Jersey v. Wilson, 7 Cranch, 164; Fletcher v. Peck, 6 Cranch, 135; Hartman v. Greenhow, 102 U.S. 672.
OPINION
In Banc.
An alternative writ of mandamus was issued June 12, 1917, by the judge of the circuit court of Cole County, commanding the respondent, as State Auditor, to sign and deliver to the relators, Kelly & Kelly, a warrant for twenty thousand dollars upon the Capitol Building Fund of the State, or to show cause in term time, for refusing. The writ was granted upon a petition containing these averments: The petitioners were partners under the style of Kelly & Kelly; the sum of twenty thousand dollars was appropriated to them out of the Capitol Building Fund by the General Assembly at its last session to pay money due petitioners by the State of Missouri; said appropriation was part of the General Appropriation Act and was approved by the Governor; prior to his approval petitioners agreed with him to reduce their claim to twenty thousand dollars; petitioners were and are willing to accept the State Auditor's warrant for that sum in satisfaction of the appropriation, had so advised him and had demanded that he issue a warrant in petitioner's favor in accordance with the terms of the appropriation, but he had refused.
The item of the General Appropriation Act of April 11, 1917, on which this proceeding is based, reads:
"There is hereby appropriated out of the State Treasury chargeable to the Capitol Building Fund the sum of twenty-five thousand dollars for the relief of Kelly & Kelly of Kansas City, Missouri, in full payment of their claim against the State of Missouri for the plan submitted to the Board of Fund Commissioners for the sale of State Capitol bonds." [Laws 1917, p. 21, sec. 59.]
That part of the Appropriation Act is the only evidence in this case of an agreement between relators and the State and of what the agreement was.
In his return to the writ the State Auditor set forth ten reasons why he had not issued the warrant in question and should not be compelled to issue it. They were in substance as follows:
A denial that the appropriation was to pay money due to the relators from the State, or that there was any money in the Capitol Building Fund to pay a warrant for the appropriation;
Averments that the Capitol Building Fund was in the nature of a trust fund, set apart by a vote of the people for these specific purposes, first, to build a new State Capitol; second, to furnish and equip it; third, to purchase any additional premises that might be needed as a site for the Capitol; that, therefore, the Legislature was without power to divert any part of the Capitol Building Fund to other purposes;
That as the Capitol Building Fund consisted of money derived from a liability contracted by the State, for the three purposes aforesaid, it could not be appropriated for any other than those purposes, or to repay the debt of the State, without violating Section 20 of Article 10 of the State Constitution. This section of the State Constitution provides, in effect, against the use of any money arising from a loan, debt or liability contracted by the State, for any purposes other than that for which the debt was contracted, or for the repayment of the debt;
That the appropriation for relators was contrary to the provisions of Section 48 of Article 4 of the Constitution, which reads: "The General Assembly shall have no power to grant, or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into and performed in whole or in part, nor pay nor authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void."
That the appropriation amounted to a grant to the relators of public money, in violation of the inhibition of Section 46, Article 4, of the State Constitution;
That the appropriation impaired the obligation of contracts previously made by the State, for the construction and furnishing of the Capitol, and finally,
Averments to the effect that the claim of relators for which the appropriation was made, did not arise under a contract made with the State Capitol Commission Board, nor was the relators' demand allowed...
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