State ex rel. Kinneard v. Jackson County Court

• Decision Date: 20 May 1929
• Docket Number: 16541
• Citation: 17 S.W.2d 572
• Parties: STATE ex rel. KINNEARD v. COUNTY COURT OF JACKSON COUNTY et al.
• Court: Kansas Court of Appeals

17 S.W.2d 572

STATE ex rel. KINNEARD v. COUNTY COURT OF JACKSON COUNTY et al.

No. 16541

Court of Appeals of Missouri, Kansas City

May 20, 1929

Mandamus proceeding by the State, on the relation of A. C. Kinneard against the County Court of Jackson County, Mo., consisting of H. S. Truman, presiding judge, and others, to require respondents to issue a warrant in payment of relator’s expense account as examiner for the state auditor. Temporary writ quashed.

Percy C. Field, of Kansas City, for relator.

Fred A. Boxley, Co. Counselor, of Kansas City, for respondents.

OPINION

LEE C.

In this case relator filed his petition for an alternative writ of mandamus, directed to the judges of the county court of Jackson county, Missouri, requiring them to issue, or show cause why they should not issue, to relator a warrant for $1,494 in payment of his expense account as examiner for the state auditor of the state of Missouri, in making an audit of said county under the provisions of R. S. Mo. 1919, § § 13302, 13306. The expense account attached to the petition was indorsed as approved by the state auditor, who also certified it as a true copy of the account as filed in his office.

Section 13306 of the Revised Statutes provides "Whenever the auditor is called upon by the county court of any county, or when petitioned by 300 taxpaying citizens of any county or the proper officers of the city of St. Louis, as provided in section 13302, to examine and audit the accounts of the officers of any county, he shall at once send an examiner or examiners to said county for said purpose, and the county so examined shall pay for the service of the examiner or examiners $7.50 per day each for each day actually used in going to and from said point or points and the time actually employed in making such examination; also including all the traveling and other necessary expenses. The examiner making such examination shall make out his account under oath and forward same in duplicate to the state auditor, one copy of which shall be filed in the office of the state auditor and the other forwarded by the state auditor to the county court of said county or the proper officers of the city of St. Louis, who shall draw a warrant at their first meeting in payment of same and remit said amount to the examiner making the examination, addressed to Jefferson City, Mo., in care of the state auditor: Provided, that any of the regularly appointed examiners whose time is spent in the auditing of accounts of any county and receives a per diem of $7.50 for same, the amount so received from the county shall be deducted from the $2,000.00 authorized by this article to be paid to him from the public treasury, in order that in no case shall an examiner’s salary be in excess of $2,000.00; and provided, further, that whenever the per diem of any regular examiner exceeds the amount of $2,000.00, the salary allowed him by this article, the excess, if there be any, shall be paid into the state treasury to the credit of the state revenue fund."

The account in question by its terms purports to be for daily "expense" at $2.50 per day for most days, but at $4 for some days, and covers generally the whole period from a date in May, 1925, to and including October 31, 1926. The petition states that the amount claimed is for "traveling and other necessary expenses, as per attached copies." The petition alleges in substance the forwarding of his verified account in duplicate to the state auditor, the auditor’s approval thereof, the filing of one copy in the office of the state auditor and of the other with the county court of Jackson county, respondents herein, on or about May 10, 1928; the duty of the county court to issue its warrant in payment of said account, at its first meeting thereafter, which has long since been held; that demand has been made, but said sum is unpaid, and has remained unpaid since said first meeting; that the issuance of the warrant is a ministerial act, to require which the writ is prayed; that relator has no other adequate remedy at law.

Respondents’ return is in the nature of a demurrer to the petition, on the grounds which may be summarized as follows:

(1) That the petition and alternative writ are not sufficient in law or equity to entitle plaintiff to the relief prayed for, or to authorize the issuance of the writ.

(2) That the petition does not show that plaintiff has exhausted or availed himself of all legal remedies (other than mandamus) or that he is without any other adequate legal remedy.

(3) That plaintiff is without legal capacity to maintain this action, because under the sections cited the audit is by the state auditor, and the compensation, if any, of individual examiners, is subject to section 13306, and that the state of Missouri is the real party in interest, for the reason that, if the amount to be paid any examiner exceeds $2,000 in any year, the excess is payable to the state.

A fourth ground, that the petition was defective on its face, in not showing that the expenses mentioned were "traveling and other necessary expenses," was cured by amendment.

The return does not set up any defense to the payment of the account; does not deny that the audit was made in connection with which the expenses were incurred; does not question the correctness or reasonableness of the expenses; does not allege lack of time or opportunity on its part to check or verify the account; does not question the validity of the law under which the audit was made, nor the authority of relator to make it as representative of the state auditor; does not allege prior payment, nor lack of money in the fund out of which such accounts are payable, and in no other way does it set up any ground why the account should not be paid and a warrant issued for that purpose, or that there is any defense to the claim which could be asserted in an appeal to, or an original suit in, the circuit court, or upon which it is desired to have a judicial determination. It does not deny the receipt of the claim from the state auditor about May 10, 1928, or at any time, and does not deny the allegation of the petition that it was the duty of the court to draw its warrant in payment of said account at its first meeting thereafter. For the purpose of its demurrer it admits all those things as matters of fact, and in effect submits its case on two questions of law.

One of these, that relator has no legal capacity to sue, and that the state of Missouri is the real party in interest, is based on the premise that the state under certain conditions might be entitled to all or part of the compensation allowed the examiner. That provision of the law relates to the examiner’s per diem of $7.50 for services, as chargeable against his annual salary, but has no bearing on his expense account, which is in addition to his salary. The present account is for expenses only, and no portion of it is for salary. The statute expressly provides that the amount shall be remitted "to the examiner making the examination." We hold that respondent’s position on that point cannot be sustained.

The only other question raised by the return is as to whether mandamus is the proper remedy. The return, for the purpose of the demurrer, admits that the claim may be a proper one, but says that the county should be made to pay in some other way; that mandamus will not lie, if any other remedy is available. Respondents suggest two other remedies as available, namely, first, an appeal from the rejection of the account; and, second, a suit against the county in a direct action at law.

R. S. Mo. 1919, § 2589, provides as follows: "If any account shall be presented against a county, and the same, or any part thereof, shall be rejected by the county court, the party aggrieved thereby may prosecute an appeal to the circuit court in the same manner as in other cases of appeal from the county to the circuit court; and the circuit court shall proceed to hear, try and determine the case anew, without regarding any error, defect or other imperfections in the proceedings of the county court."

Respondent cites numerous authorities against the propriety of mandamus as a remedy in this case. In State ex rel. Hutton v. Scott County Court (Mo. Sup.) 197 S.W. 347, the county court had received its apportionment of the taxes collected by the state from insurance companies, from time to time, for a period of 17 years, during which interest had been collected thereon, and placed in the bridge fund. In 1911, as required by law, it apportioned this fund among the corporate cities and towns in the county. The village of Commerce received its proportionate amount of the principal sum, and then demanded payment to it of its share of the accrued interest. "The county court took up the matter of this demand, considered it, and disallowed it." The claimant then filed its petition in the Supreme Court, seeking to compel the payment by mandamus. The court held:

"Mandamus will not lie in this case. It is not available as a remedy where an appeal will lie to enforce action which the mandamus seeks to compel. In ...