State ex rel. State Bd. of Mediation v. Pigg

• Decision Date: 26 November 1951
• Docket Number: No. 42660,42660
• Citation: 362 Mo. 798,244 S.W.2d 75
• Parties: , 29 L.R.R.M. (BNA) 2145, 20 Lab.Cas. P 66,647 STATE ex rel. STATE BOARD OF MEDIATION v. PIGG.
• Court: Missouri Supreme Court

Page 75

244 S.W.2d 75

362 Mo. 798, 29 L.R.R.M. (BNA) 2145,

20 Lab.Cas. P 66,647

STATE ex rel. STATE BOARD OF MEDIATION v. PIGG.

No. 42660.

Supreme Court of Missouri, en Banc.

Nov. 26, 1951.

As Modified on Denial of Rehearing Dec. 17, 1951.

Daniel C. Rogers, Fayette, for relator.

J. E. Taylor, Atty. Gen., John R. Baty and Arthur M. O'Keefe, Asst. Attys. Gen., for respondent.

Clif Langsdale, Kansas City, and Malcolm L. Bartley, St. Louis, for Missouri State Federation of Labor, A. F. of L.

Harry C. Clark, Kansas City, Everett E. Cotter and Morris J. Levin, St. Louis, for

Missouri State Industrial Union Council, C. I. O.

Cobbs, Blake, Armstrong, Teasdale & Roos, St. Louis, amici curiae.

DALTON, Judge.

This is an original proceeding in mandamus. Relator seeks to compel the State Comptroller to approve and certify for payment relator's 'requisition (dated April 20, 1951) for the salaries, per diem and travel expenses of its board members and employees, and office rent for its board headquarters in Jefferson City, Missouri in the total amount of $1100.38.'

Respondent defends on the ground that Chapter 295, RSMo 1949, which provides for the appointment of persons to serve as a state board of mediation, fixes their compensation, provides for their expenses and designates their powers, is invalid and unconstitutional and the relator has no 'legal official existence of lawful capacity to incur the expenses aforesaid or any obligation payable out of the treasury of the State of Missouri.'

Respondent relies upon numerous provisions of the state and federal constitutions hereinafter referred to and upon alleged conflict 'with the National Labor Relations Act of 1935, 49 Stat. 449, 29 U.S.C. Sec. 151 et seq., 29 U.S.C.A. Sec. 151 et seq., as amended by the Labor Management Relations Act of 1947, 61 Stat. 136 to 161, 29 U.S.C. (Supp. III), Secs. 141-197, 29 U.S.C.A., Secs. 141-197.'

Respondent further says that the appropriation act, Laws 1949, p. 76, Sec. 4.293 is invalid, illegal and unconstitutional and in violation of Article IV, Sec. 28, Constitution of Missouri 1945, because relator had no legal existence and no appropriation could legally be made for and on account of relator. Respondent specifically attacks on numerous constitutional grounds sections 295.080, 295.090, 295.120, 295.130, 295.140, 295.150, 295.160, 295.170, 295.180, 295.200 (all references are to RSMo 1949, unless otherwise specified). Concerning the remaining sections of Chapter 295, respondent says that 'all of the sections of said Chapter 295 are dependent on each other and are inseparable as to their connection, meaning and effect; that without the inclusion of' the questioned sections, or any of them, the General Assembly would not have enacted any of the provisions of Chapter 295; and that because of the unconstitutionality and invalidity of the sections directly and specifically questioned, or any of them, all of the remaining provisions and sections of said Chapter 295 were and are inoperative, void and of no effect.

The facts upon which this action is based are not in dispute. The act in question, commonly known as the King-Thompson Act, was passed by the sixth-fourth General Assembly and approved by the Governor May 19, 1947. Laws 1947, Vol. I, p. 358. It was entitled 'An Act to provide for the mediation of labor disputes in public utilities; to create a board of mediation and to provide for the qualifications, powers, duties, compensation of the members of such board; to provide for the seizure and operation of public utilities by the state in order to insure continuous operation, to provide for the enforcement of this act and to prescribe penalties for any violation of this act.' After the effective date of the act a state board of mediation was appointed and began to function as such. Thereafter, on March 19, 1951 the attorney general gave an opinion that the act was unconstitutional and void. On April 3, 1951, the attorney general advised respondent that he 'should not approve for payment the payroll and expense accounts of the State Board of Mediation which have accrued after the opinion was given.' The opinion, in part stated: 'In the instant case there is no doubt that the Legislature enacted a statute providing for a State Board of Mediation and that the Governor, under authority of that statute, appointed members of such Board. The members of the State Board of Mediation, under color of authority of the statute and of the appointment, have in good faith held their offices and discharged the duties thereof. Until March 19, 1951, neither the members of the State Board of Mediation nor you had ever been advised either by this department or by a court that the King-Thompson Act was unconstitutional. On that date you, as Comptroller, and the members of the State Board of Mediation were notified that the law under which the Board was operating was unconstitutional.'

Acting upon the advice of the attorney general the respondent refused to approve and certify for payment the items and amounts listed in the mentioned requisition. Respondent's return admits that he refused and still refuses to approve and certify for payment the items and amount of the requisition, but alleges that he has acted upon the written opinion and advice of the attorney general the Chapter 295 is unconstitutional and void. He admits 'that, except for the unconstitutionality and invalidity of said Chapter 295, and the provisions and sections thereof as heretofore and hereinafter set forth, the items and amount as shown by said requisition marked Relator's Exhibit A would have been correct, for a lawful purpose and properly to have been approved and certified by respondent for payment, and legally payable out of the treasury of the State of Missouri.'

In considering the alleged unconstitutionality of Chapter 295, it must be remembered that, 'Only such persons as are in some way prejudiced by an unconstitutional law can complain of it.' State v. Seebold, 192 Mo. 720, 731, 91 S.W. 491, 494; State ex rel. Wiles v. Williams, 232 Mo. 56, 64-71, 133 S.W. 1, 34 L.R.A.,N.S., 1060, and cases cited. 'Ordinarily a public officer may not question the constitutionality of a statute as a defense to mandamus to compel him to perform a ministerial duty.' State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247, 249. The reason being that he has no greater interest than that of any other citizen in the constitutional questions which he invokes. State ex rel. Wiles v.Williams, supra, 232 Mo. 56, 64, 133 S.W. 1; State ex rel. Thompson v. Jones, 328 Mo. 267, 41 S.W.2d 393, 396. In this case the alleged unconstitutionality of Chapter 295, RSMo 1949 is a proper defense, because Sec. 33.200, RSMo 1949 provides that if the comptroller shall knowingly certify a claim for payment by the auditor, 'not authorized by law, he shall, upon conviction thereof, be deemed guilty of a felony'. Upon the attorney general's advice that the payment of relator's salaries and expenses was unauthorized, the respondent was justified in refusing (pending an opinion of this court) to approve and certify the items listed in the requisition. State ex rel. S. S. Kresge Co. v. Howard, supra, 357 Mo. 302, 208 S.W.2d 247, 249.

It is apparent that the issue presented is whether relator did have 'legal official existence' and lawful capacity to incur expenses and permit salaries to accrue so that the itmes listed in the requisition are valid obligations payable out of the state treasury and may be approved and certified by respondent without civil or criminal liability to himself.

It should be noticed that this action is not brought for the purpose of reviewing any action or order of the state board of mediation. No such action or order is directly involved. The validity of no labor contract is called in question. The facts presented involve no strike or lockout and no judgment of any court pertaining to any proceeding under Chapter 295. The seizure of no property of a utility is involved. No question is presented concerning the application of any penalties under the act. No labor union, utility, employee or employer directly affected by the act is a party to the action. No one compains that any proceeding under the act has infringed upon any right granted by either the state or federal constitutions. The cause is presented here solely upon the factual background of respondent's refusal to approve and certify, under the facts stated, the salaries and expenses in question here. It is solely against this factual background that respondent urges the invalidity and unconstitutionality of Chapter 295 and of each and every provision thereof.

Relator and respondent have briefed and submitted this cause upon the theory that, in this proceeding, this court must and should pass upon the constitutionality of each and every section of Chapter 295 and should finally determine the validity of each section under all factual situations that might or could arise. Briefs on behalf of interested parties as amici curiae have been filed, towit, the brief of Associated Industries of Missouri in support of the constitutionality of the act and the brief of the Missouri State Federation of Labor, A.F.L. and the Missouri State Industrial Union Council, C.I.O., contending that the act is unconstitutional. In effect the parties seek an advisory opinion concerning the validity of each and every section contained in Chapter 295.

It is well settled that constitutional questions will not be determined, unless their determination is essential to a proper determination of the case presented. State v. Vienup, 347 Mo. 382, 147 S.W.2d 627, 631; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809, 816; 16 C.J.S., Constitutional Law, Sec. 94, page 207. We have no authority to give advisory opinions on constitutional questions affecting, or which may affect, the rights of persons who are not parties to the...