State ex rel. Lindley v. Clark

• Decision Date: 31 October 1875
• Citation: 61 Mo. 263
• Parties: STATE OF MISSOURI ex rel. EZEKIEL LINDLEY, Plaintiff in Error, v. GEORGE CLARK, STATE AUDITOR, Defendant in Error.
• Court: Missouri Supreme Court

61 Mo. 263

STATE OF MISSOURI ex rel. EZEKIEL LINDLEY, Plaintiff in Error,

v.GEORGE CLARK, STATE AUDITOR, Defendant in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Cole County Circuit Court.

Hockaday, Attorney General, for Plaintiff in Error.

I. The Auditor being the general accountant of the State, and responsible for the manner in which its funds are disbursed, is not concluded by the certificate of the Governor, from going behind his indorsement of a claim, and passing independently upon its allowance. (Wagn. Stat., 1333, § 10; Id., 1334, § 13; State vs. Hinkson, 7 Mo., 353; Morgan vs. Buffington, 21 Mo., 549; State ex rel. vs. Thompson, 41 Mo., 13; State ex rel. vs. McMurtry, 37 Mo., 176.)

II. For the purposes of investigation into the legality and justness of claims presented for his official action, the Auditor is clothed with judicial authority, and can issue subpœnas, and compel the attendance of witnesses and examine them in relation thereto. (Wagn. Stat., 1337, § 26.)

III. The Governor had the right to revoke his approval of the claim. The first indorsement was made under a misapprehension of the facts. And the presentation of the certificate to the warrant clerk, who had no legal power to act in the premises, in no sense deprived the Governor of his authority over the paper. Only the Auditor, or his chief clerk, could audit the claim, and, before they acted upon it, the Governor could withdraw it. (Wagn. Stat., 1334, §§ 14, 15; see also, People ex rel. vs. Hatch, 19 Mo., 290.)

Johnson & Botsford, and H. Clay Ewing, for Respondent.

I. After the claim with the Governor's certificate had been deposited in the office of the defendant in error, to enable him to draw a warrant thereon, the power of the Governor over it ceased, and it was the duty of the defendant in error to draw the warrant, notwithstanding the subsequent revocation of the Governor. (Wagn. Stat., 1119, §§ 22, 23; Marbury vs. Madison, 1 Cr., 49; Martin vs. Mott, 12 Wheat., 19; Hodley vs. Mayor, 33 N. Y., 603; Ex parte Randolph, 2 Brock., C. C. R., 472; Bowen vs. Hixon, 45 Mo., 343; State ex rel. vs. Draper, 48 Mo., 215; Boone Co. vs. Todd, 3 Mo., 140.) The Auditor was not acting in this case under his general powers, but under a special statute, and he was conclusively bound by the certificate of the Governor who is invested with full power and control over the matter of rewards.

II. Thompson testified at the close of his testimony, that he was authorized to receive accounts. The law would infer this from his employment in the Auditor's office, and presentation to Thompson was a presentation in law to Clark.

III. The State Auditor is not a clerk or subordinate of the Governor, but is an independent officer, created by law, and whose duties are pointed out and defined by statute. (Wagn. Stat., 1119, § 23; Marbury vs. Madison supra.)

IV. The action of Governor Fletcher in issuing a proclamation, was in the nature of an adjudication that Fisher was a murderer and a fugitive from justice, which cannot be disputed collaterally against the relator, and the proclamation still continuing in force, and not having been recalled by the Governor, the fact that the Morgan county sheriff may not have performed his duty, cannot affect the relator's right to a warrant for his services under said proclamation. (Martin vs. Mott, supra.)

V. The statute provides that “the Governor on the production of such certificate shall certify the amount,” and evidently contemplates that the only evidence to be brought before him is the sheriff's certificate, and that being satisfied of the genuineness of the signature and certificate of that officer, nothing remains but to give the certificate.

NAPTON, Judge, delivered the opinion of the court.

As there is no discrepancy between the witnesses in this case, the facts may be stated as follows: In 1866, in the month of February, the Governor of the State issued a proclamation reciting that four persons named were guilty of murder; that they had all fled from justice and were still at large, a reward of $300 was offered for the apprehension of any one of them, and a delivery to the sheriff, and a particular description of each fugitive was appended to the proclamation.

On the 14th of April, 1873, more than seven years after the date of this proclamation, the relator appeared at Jefferson City, and going into the office of the Secretary of State, requested of the chief clerk a copy of this proclamation, which was furnished. The relator had a certificate from the sheriff, made in accordance with the statute (Wagn. Stat., 1119, § 23), of the delivery to him of one of the fugitives described in the proclamation. An account was prepared by a clerk in the office against the State for $300, on the same paper which contained the certificate of the sheriff, and at the request of the relator, the clerk took this account into the office of the Governor and presented the account and certificate to him, who inquired if the proclamation had been issued, and upon being informed that it had, indorsed below the account, “correct. Silas Woodson.” Upon a return to the Secretary's office the relator signed his name on the back of this paper thus certified by the Governor, according to the custom prevailing in the Auditor's department, and the clerk took said paper into the Auditor's office and handed it to a warrant clerk in that office and requested him to issue a warrant. This clerk was busy at the time and requested the clerk from the Secretary's office to come in after dinner--the above transaction having occurred about 11 o'clock in the morning.

Afterwards, and during the same morning, the Governor's Private Secretary called at the Auditor's office, and upon being informed that the Governor had approved a warrant for the relator, requested that the warrant be withheld until the Secretary could see the Governor, and thereupon the clerk took the paper to the Governor's office, and the Governor said he would revoke the order, and he did so by indorsing on the paper the words: “The above certificate is hereby revoked, Silas Woodson, April 14, 1873.”

When the Auditor returned after dinner to the office, the paper was presented to him in this shape, and after an examination into the facts, he refused a warrant.

The facts agreed on by the attorneys on both sides are that “at the time of the arrest of said Fisher, (the person named in the proclamation of 1866) he was in Morgan county, Missouri, (the venue of the offense) where he had been indicted before the proclamation of Governor Fletcher, and had resided openly in said Morgan county for at least one year before his arrest--that such residence was all that time known to the sheriff of Morgan county, and he could have been at any time arrested by said sheriff of Morgan county.”

The circuit court, to whom an application for a mandamus on the Auditor was made, ordered the mandamus, and a writ of error has brought in review the decision of that court.

The statute under which this claim...