State ex rel. R. Newton McDowell, Inc. v. Smith

• Citation: 67 S.W.2d 50,334 Mo. 653
• Parties: State of Missouri at the Relation of R. Newton McDowell, Inc., a Corporation, Relator, v. Forrest Smith, State Auditor of Missouri
• Decision Date: 22 December 1933
• Court: United States State Supreme Court of Missouri

67 S.W.2d 50

334 Mo. 653

State of Missouri at the Relation of R. Newton McDowell, Inc., a Corporation, Relator, v. Forrest Smith, State Auditor of Missouri

Supreme Court of Missouri

December 22, 1933

Peremptory writ issued.

Blatchford Downing and McCune, Caldwell & Downing for relator.

(1) Relator's claim is not against the State as such, but is against the State Highway Commission, a separate entity, and the procedure before the State Auditor provided by Section 11416 et seq., Revised Statutes 1929, is not applicable. State ex rel. State Highway Comm. v. Bates, 317 Mo 696. (2) Approval for payment of claims for the purchase price of road materials furnished under contract with the State Highway Commission is to be by the commission itself and not by the State Auditor. Sec. 44a, Mo. Const.; Secs 8118, 11404, R. S. 1929; State ex rel. Holman v Trimble, 316 Mo. 1041. (3) Exclusive discretionary control with reference to the disbursing of state highway funds for proper highway purposes, is vested in the State Highway Commission. Art. 12, Ch. 42 (Sec. 8094 et seq.), R. S. 1929; Sec. 44a, Art. IV, Mo. Const.; State ex rel. State Highway Comm. v. Thompson, 323 Mo. 742, 19 S.W.2d 642; Secs. 8104 (10), 8114, 8134, 8118, 8106, R. S. 1929. (4) The Federal Highway Act requires that state highway funds be under direct control of State Highway Departments. Federal Highway Act (23 U.S.C. A., sec. 7); Secs. 8092, 8106, R. S. 1929; Logan v. Matthews, 330 Mo. 1213, 52 S.W.2d 989. (5) The mere drawing of a warrant by the State Auditor for payment of the purchase price for road materials furnished the State Highway Commission, against a bill of particulars and voucher previously certified and approved by the Highway Commission is purely a ministerial act. Sec. 8118, R. S. 1929; State ex rel. Holman v. Trimble, 316 Mo. 1041; State ex rel. Bell v. Holman, 222 Mo.App. 531; State ex rel. Kansas Ins. Agents Assn. v. Kansas City, 319 Mo. 386; State ex rel. Treasurer State Lunatic Asylum v. State Auditor, 46 Mo. 326; State ex rel. Hawes v. Mason, 153 Mo. 23; State ex rel. McAnally v. Goodier, 195 Mo. 551; State ex rel. Johnston v. Lutz, 136 Mo. 633. (6) Relator is without an adequate remedy except by mandamus and the public interest involved is such as to justify this court's exercise of its jurisdiction. (a) An appeal to the General Assembly is inappropriate and would not be an adequate remedy at law. Sec. 55, Art. IV, Mo. Const.; Sec. 11422, R. S. 1929. (b) A suit against the Highway Commission is unnecessary and might be unavailing; mandamus is the appropriate remedy where the commission has approved relator's claim for payment. County of Boone v. Todd, 3 Mo. 140; State ex rel. Holman v. Trimble, 316 Mo. 1041; State ex rel. Kansas City v. Renick, 157 Mo. 292. (c) The public interest is such as to make imperative a speedy and conclusive judicial determination of the constitutional validity or invalidity of the State Purchasing Agent Act of 1933 as applied to purchases of road material by the Highway Commission. (7) On the allegations of the petition for the writ admitted by the motion to dismiss, relator shows a clear legal right to have a warrant issued in payment of its claim. Sec. 44a, Art. IV. Mo. Const.; State ex rel. State Highway Comm. v. Thompson, 323 Mo. 742; Federal Highway Act (23 U.S.C. A., sec. 7); Secs. 8092, 8106, R. S. 1929.

Roy McKittrick, Attorney-General, Edward C. Crow, James L. HornBostel and Harry G. Waltner, Jr., Assistant Attorney-General, for respondent.

(1) Relator admits on pages 15 and 39 of its printed "Suggestions" herein that it seeks an adjudication in this mandamus proceeding upon the constitutionality of the State Purchasing Agent Act insofar as it relates to the Highway Commission. Such an adjudication cannot be had in a mandamus proceeding. State ex rel. v. McIntosh, 205 Mo. 609; Wright v. Kelley, 4 Idaho. 633; Merrill on Mandamus, sec. 56, pp. 63, 64. (2) Mandamus is not only an extraordinary but in most respects a summary, remedy, and cannot be made an instrument for giving a court jurisdiction of litigation on collateral matters in an irregular way. Spelling on "Extraordinary Relief," sec. 1386; State v. Douglas County, 18 Neb. 506. (3) Relator has adequate remedy at law and cannot maintain this mandamus proceeding. Sec. 11422, R. S. 1929; State ex rel. Gehner v. Auditor, 316 Mo. 1187; Merrill on "Mandamus," sec. 209; Sec. 10, "State Purchasing Agent Act," Laws 1933, p. 413; Am. F. Co v. Police Commrs., 285 Mo. 595. (4) State ex rel. Commission v. Bates, 317 Mo. 696, merely decides, first: Commission is a legal entity -- can sue and be sued; second: It must be sued in Cole County Circuit Court. This case decides nothing else and a decision is a precedent only on the points arising in the particular case, and general language and argument of a writer of an opinion does not constitute a precedent. State ex rel. v. St. Louis, 241 Mo. 231. (5) The highway funds belong to the State and are owned by the State and not by the Highway Commission. Any claim against these highway funds is a claim against the State. Section 44a, Article IV, of the State Constitution does not make of the State Highway Commission one State government within another. Section 44a creates no imperium in imperio. Section 44a provides that the said bonds and interest thereon shall be paid out of a fund to be provided by the levy and collection of a direct annual tax upon all taxable property in the State. This last clause, above mentioned, enabled the State to acquire the highway funds by sale of State bonds. The State, not the Highway Commission, furnished the money and it is the money of the State and a claim to be paid from this money is a claim against the State. The Highway Commission is but an agency of the State. The Highway Commission is not the master but the servant of the State. The fund arising from use of fuel and gasoline by vehicles, and sums paid for registration are but taxes and as such are with all other taxes paid into the State Treasury and are moneys of the State. Railroad Co. v. Commission, 287 S.W. 621; Sec. 44a, Art. IV, Mo. Const.; State ex rel. McKinley Publishing Co. v. Hackman, State Auditor, 314 Mo. 33; Bush v. Highway Comm., 329 Mo. 843. (6) Division Two, of this court, and this Court en Banc, has held the State Highway Department is a subordinate branch of the Executive Department of the State and on that ground, the court held the Highway Department was not liable in tort for acts of its agents and employees because of the public policy that the State is exempt from liability for the torts of its officers and agents. If the Highway Commission is a subordinate branch of the executive department of the State, then a claim against the department is a claim against the State, as much so as a claim for supplies furnished any other executive branch of the State government would be a claim against the State. State ex rel. McKinley Co. v. Hackman, 314 Mo. 44; Bush v. Highway Comm., 329 Mo. 854; Sec. 14, Laws 1921 (1st Ex. Sess.), p. 137. (7) The money for maintaining the Highway Commission and the money it spends constructing roads is as much public or state revenue as any money coming into the treasury of the State. After maintenance and operating expenses are paid, all highway money from any source is, by the Constitution, to be applied to payment of the State Road Bonds and therefore the people are vitally interested in the expenditure of this money by the commission and this court has so said in positive language. State ex rel. Publishing Co. v. Hackman, 314 Mo. 47. (8) Relator bases his claim on a contract with the Highway Commission and asserts the commission is not the State. If the claim is not against the State, then relator is not entitled to a writ of mandamus because this court holds it will not issue a writ of mandamus to enforce simple common-law rights between private parties. State ex rel. v. County Court of Howard County, 39 Mo. 377. (9) The statute laws of Missouri as to duty and power of Auditor to audit accounts and pass on legality thereof has been practically the same since January 26, 1825, when by Sections 9 and 17 of an Act of the General Assembly of Missouri, passed on January 26, 1825, the Auditor was given power to audit, approve or reject claims and to subpoena witnesses and was given power of a court of record therefor and authorized to judicially pass on claims against the State just as he is given that power by Sections 11399, 11404, 11418, Revised Statutes 1929. R. S. 1825, Vol. 2, pp. 772-774, Secs. 9, 17; R. S. 1929, secs. 11399, 11404, 11418, 11422; R. S. 1835, art. 3, Treasury Department, pp. 608, 609, secs. 4-7; R. S. 1845, ch. 178, secs. 3, 9, 13; R. S. 1855, ch. 160, art. 2, sec. 1, art. 3, secs. 11, 16, and same sections carried forward to 1929 statutes. (10) This court held under the Statute of 1835, as this court now holds, the State Auditor has the right to pass on the legality of the claim. State v. Hinkson, 7 Mo. 353. (11) Under the Statutes of 1855, the Supreme Court of this State, in an opinion by Scott, J., held a certificate signed by the Speaker of the House of Representatives and attested by the Chief Clerk under an act fixing the pay of the General Assembly was not conclusive upon the Auditor and that he could inquire into the facts or determine the legality of the certificate of the Speaker and the Chief Clerk. Morgan v. Buffington, 21 Mo. 549; State ex rel. Nolen v. Hackmann, 276 Mo. 180. (12) Under these same statutes, in a claim against a county for services of a sheriff's posse protecting a Board of Registration under Wagner's Statute, 1157, section 36, this court held mandamus would not issue because a private citizen (as relator herein is), holding an ordinary claim...