FARIS
J.
This is
an original proceeding by mandamus to compel the respondent,
who is the State Auditor, to audit for payment two
expense-accounts for traveling expenses incurred by the
petitioner, who is the State Superintendent of Public
Schools.
The
issuance of an alternative writ was waived by the respondent
and it was agreed that the petition for the writ should stand
for all purposes as and for the alternative writ.
The
pleadings state the case. The first count, omitting formal
parts, and parts already substantially stated, runs thus:
"Your
petitioner says that, in the month of July, 1917, in
connection with and in the discharge of the duties of his
office as Superintendent of Public Schools of Missouri, as
aforesaid, he attended the annual meeting of the National
Education Association at the City of Portland, State of
Oregon; that petitioner is, and, at the time hereinabove
mentioned was, a member of said National Education
Association; that said National Education Association is
constituted and composed of the superintendents of the public
schools of the various States of the Union, and of leading
teachers and educators throughout the United States; and that
the purpose of the organization of said National Education
Association, and of the annual meetings of the same held in
different cities of the country, is to promote, foster and
encourage the cause of public education, and to elevate the
standard and efficiency of the instruction given in the
various States of the Union, and throughout the
United States generally; and that the attendance of your
petitioner at said annual meeting of said National Education
Association, in the City of Portland, Oregon, in said month
of July, 1917, was by him believed to be, and your petitioner
alleges that it was, useful and necessary to the proper and
efficient discharge of the duties of his said office, and
tended to promote and advance the cause of public education
in Missouri, and to elevate the standard and efficiency of
the instruction given in the public schools of this State;
and that his attendance at said meeting was authorized by the
laws of this State prescribing his powers and duties, and
more particularly by the provisions of Section 10922, Revised
Statutes 1909.
"Your
petitioner says that, in attending said annual meeting of
said National Education Association, at the time and place
aforesaid, he actually expended the sum of $ 140.65, and that
said amount was the reasonable and actual expense of his said
attendance at said meeting, including necessary railroad
fare, hotel bills, and other expenses reasonably and actually
necessary to his attendance at said meeting; and that no
personal expenses were or are included in said
above-mentioned sum.
"Your
petitioner says that thereafter, and on the 5th day of
September, 1917, he presented to the said George E. Hackmann,
State Auditor as aforesaid, his account in said sum of $
140.65 (which said account had theretofore been duly approved
by petitioner as Superintendent of Public Schools of
Missouri) for allowance as a claim against the State of
Missouri, as authorized and provided by said Section 10922,
Revised Statutes 1909, and to be paid out of the moneys
appropriated for the contingent and traveling expenses of the
department of education, said moneys being appropriated by
Act approved April 11, 1917, entitled 'An Act to
appropriate money for the support of the state government,
the payment of the contingent and the incidental expenses of
the state departments,' etc., and being
Section 22, page 10, of Laws of Missouri 1917; that at the
time your petitioner presented said account to the said
George E. Hackmann, State Auditor as aforesaid, for
allowance, there was, and is now in the State Treasury, to
the credit of the traveling expense account of the moneys
appropriated for the contingent and traveling expenses of the
department of education, more than sufficient money to pay
said account of $ 140.65; and that it then and thereupon
became the duty of the said George E. Hackmann, State Auditor
as aforesaid, to audit and allow said account in said sum of
$ 140.65; but your petitioner says that the said George E.
Hackmann, State Auditor as aforesaid, wrongfully failed and
refused, and does still wrongfully fail and refuse, to audit
and allow said account in said sum of $ 140.65, or in any
other sum, for the reason, as your petitioner is informed and
believes, that it is the opinion and decision of the said
George E. Hackmann, State Auditor as aforesaid, that your
petitioner is not entitled to have audited and allowed, as a
claim against the State of Missouri, any expenses made or
incurred by him outside the State of Missouri.
"Your
petitioner says that he is remediless in
the premises by or through ordinary process or proceedings at
law, and he therefore prays this Honorable Court to issue its
writ of mandamus directing and commanding the said George E.
Hackmann, as the State Auditor of Missouri, to audit and
allow your petitioner's said claim in said sum of $
140.65, and for such other relief as to the court may seem
meet and proper in the premises."
The
second count is a substantial rescript of the first count,
except that it is bottomed upon expenses incurred in a trip
to Washington, D. C., the nature of which is thus set forth:
"First:
To consult with the Federal Board for Vocational Education
regarding the terms under which Federal money should be made
available for the State of Missouri for the purposes of
reimbursements to school districts for moneys
expended for the salaries of teachers of trade, industrial,
home economics subjects, and teachers of agriculture, and for
the training of such teachers. Your petitioner says that said
Federal Board is created by act of Congress, and is appointed
by the President to administer the Smith-Hughes Act, under
which moneys are annually granted to the various States for
the above purposes; that said Federal Board notified both
your petitioner and the Governor of Missouri that the State
of Missouri should be represented at said meeting; that the
law of Missouri (Sec. 3, page 513, Laws 1917) vests the
disbursements of moneys received by the State for the above
purposes in the State Board of Education, and that your
petitioner, as Superintendent of Public Schools, as
aforesaid, is ex-officio chairman of said State Board of
Education, and is designated by Section 11, page 516, Laws of
Missouri 1917, as the executive officer of said board for the
administration of said act.
"Second:
To attend, at the same time and place, a conference of State
Superintendents of seven States, Missouri being one of them,
said conference being called by Hon. P. P. Claxton, United
States Commissioner of Education, appointed by the President,
and directing general educational affairs throughout the
United States, said conference being called to consider the
condition of the public schools and the work of the public
schools in said seven States during the period of the war and
immediately following the war."
To this
petition and to both counts thereof respondent demurred. His
demurrer, omitting formal parts, runs thus:
"1st.
Because neither said first nor second count states facts
sufficient to constitute a cause of action against this
respondent.
"2nd.
Because neither said first nor second count is sufficient in
law.
"3rd. Because it appears upon the face of said first and
second counts and each of them, that the...
