State ex rel. Tolerton v. Gordon

Decision Date03 July 1911
Citation139 S.W. 403,236 Mo. 142
PartiesTHE STATE ex rel. JESSE A. TOLERTON, State Game and Fish Commissioner, v. JOHN P. GORDON, State Auditor
CourtMissouri Supreme Court

Peremptory writ issued.

Lon O Hocker and R. T. Railey for relator.

(1) Art. 2 of Chap. 49, R. S. 1909, contains the law of this State in reference to the preservation of fish and game specifies the salary of the game warden, and provides that it shall be paid out of the game protection fund by warrant drawn by the State Auditor on said fund in the hands of the State Treasurer. When the above act became effective, Aug 16, 1909, it required no further appropriations by the Legislature, or any other body, to pay the salary and expenses incurred by the State Game and Fish Commissioner. Sec. 43, Art. 4, Constitution of Missouri; sec. 19, art. 10 of Constitution; Ex parte Lucas, 160 Mo. 218; State ex rel. v. Mason, 153 Mo. 59; Reynolds v. Taylor, 43 Ala. 420; Nichols v. Comptroller, 4 Stew. & P. 157 (Ala.); State v. Weston, 4 Neb. 216; Gilbert v. Moody, 25 P. 1092; San Francisco v. Dunn, 69 Cal. 73; State ex rel. v. Hickman, 9 Mont. 370; State ex rel. v. Hickman, 10 Mont. 497; State ex rel. v. Grimes, 7 Wash. 193; State ex rel. v. Eggers, 91 P. 819; State ex rel. v. Goodykoontz, 22 Colo. 507; Goodykoontz v. Acker, 19 Colo. 360; Henderson v. Monument, 129 Ind. 92; Campbell v. Monument, 115 Ind. 591; State ex rel. v. Maddox, 11 Mont. 555; State v. Bordelon, 6 La. Ann. 68; State ex rel. v. King, 108 Tenn. 271; Kendall v. Rayland, 13 Utah 226; Donnellan v. Nicholls, 1 Wyo. 61; State ex rel. v. Burdick, 4 Wyo. 272; State ex rel. v. Westerfield, 23 Nev. 468; Bryan v. Menefee, 95 P. 471; In re Groff, 21 Neb. 647; Leadville v. Matthews, 10 Colo. 125; Bishop v. Lambert, 114 Mich. 110; Proll v. Dunn, 80 Cal. 220; People ex rel. v. Brooks, 16 Cal. 11; Humbert v. Dunn, 84 Cal. 57; Carr v. State, 127 Ind. 204; Ristine v. State, 20 Ind. 204. (2) The power of appointment and removal of State Game and Fish Commissioner is vested in the Governor alone. The proviso at the conclusion of Sec. 62, House Bill 1200, is therefore void, as the Legislature had no legal right to enact the same. Art. 3, Constitution of Missouri; State ex inf. v. Washburn, 167 Mo. 691; State ex rel. v. St. Louis, 216 Mo. 96; State ex rel. v. Judge, 47 La. 59; State ex rel. v. Dougerty, 13 Am. Rep. 131; State ex rel. v. Peelle, 8 L. R. A. 231; State ex rel. v. Carr, 13 L. R. A. 181; McCornick v. Pratt, 17 L. R. A. 248; Clayton v. Territory, 132 U.S. 642; People ex rel. v. Howland, 155 N.Y. 270; Reid v. Smoulter, 128 Pa. St. 324. (3) That part of Sec. 62, providing that no part of the ninety thousand dollars appropriated should be used while relator was in office, is illegal and void, but the remainder of the act can be upheld. If it was the duty of the Legislature to make an appropriation then it did so in setting apart the ninety thousand dollars to be used for the purpose of enforcing the game law of this State. The Legislature had no right to limit the use of this fund any more than it had the right to remove relator from office. The action of the General Assembly in respect to said proviso can, therefore, be treated as a nullity, and the balance of the act sustained, if it be held that an appropriation was necessary. State ex rel. v. Taylor, 224 Mo. 473; Gracy v. St. Louis, 213 Mo. 397; State ex rel. v. Corcoran, 206 Mo. 1; State ex rel. v. Comrs., 184 Mo. 134; State ex inf. v. Washburn, 167 Mo. 681; State ex rel. v. Walbridge, 153 Mo. 203; State ex rel. v. Field, 119 Mo. 612; Clayton v. Territory, 132 U.S. 642; State v. Carr, 28 N.E. 88; State ex rel. v. Carr, 13 L. R. A. 181; State ex rel. v. Westerfield, 49 P. 121. (4) The provision attached to Sec. 62, House Bill 1200, is not within the title to the appropriation bill, and is in direct conflict with Sec. 28, Art. 4, Constitution. State ex rel. v. County, 41 Mo. 40; State ex rel. v. Herrmann, 75 Mo. 341; State v. Persinger, 76 Mo. 346; State ex rel. v. Baker, 129 Mo. 486; Witzmann v. Railway, 131 Mo. 618; Henderson v. Koenig, 168 Mo. 370; State v. Coffee Co., 171 Mo. 634; State v. Fulks, 207 Mo. 206; State ex rel. v. Turner, 210 Mo. 83; St. Louis v. Wortman, 213 Mo. 131.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for respondent.

(1) The conditional appropriation made by the Legislature to the Game and Fish Department is presumed to be valid. The burden rests upon relator to prove it invalid beyond a doubt. Before the court can declare it invalid it must contravene some constitutional provision. (a) Under the decisions of this honorable court, every presumption is indulged in favor of the validity of the act of the Legislature in making the conditional appropriation to the game department, and that presumption continues until its invalidity is made to appear beyond all doubt. State v. Douglass, 50 Mo. 597; State v. Thompson, 144 Mo. 314; State ex rel. v Aloe, 152 Mo. 477; In re Hill, 200 Mo. 646; State v. Hope, 100 Mo. 347; State v. County, 102 Mo. 531; Murnane v. St. Louis, 123 Mo. 479; State v. Warner, 197 Mo. 650; State v. Layton, 160 Mo. 488. (b) It devolves upon the relator to establish the invalidity of the condition in the appropriation made by the General Assembly beyond a doubt. We undertake to say that the relator has in no way presented any reason or argument against the validity of the appropriation as made. State v. Ranson, 73 Mo. 78; State v. Laughlin, 75 Mo. 147; State v. Addington, 77 Mo. 110; Phillips v. Railroad, 86 Mo. 540. (c) When substantial doubt exists as to the duty whose performance it is sought to coerce, or as to the right or power of the officer to perform the duty, relief by mandamus will be withheld. State ex rel. v. Buhler, 90 Mo. 570; State ex rel. v. Bridge Co., 206 Mo. 133; State ex rel. v. Wilder, 211 Mo. 305; State ex rel. v. McIntosh, 205 Mo. 589. (d) It is immaterial what views this honorable court may entertain about the wisdom of the condition contained in the appropriation, or whether it is unjust or unreasonable. Such matters are not for the courts. It is for the Legislature alone to determine these matters. Although, in the opinion of the court, a legislative act is unjust, oppressive and unreasonable, yet it cannot declare the same invalid unless it contravenes some provision of the Constitution. Court v. Griswold, 58 Mo. 175; Railroad v. Little, 45 Ga. 388; State ex rel. v. McClelland, 138 Ind. 395; Horton v. Comrs., 43 Ala. 605; Comm. v. Hartman, 17 Pa. St. 119; People v. Railroad, 34 Barb. 138. (2) Relator is not now and never has been legally appointed and commissioned as Game and Fish Commissioner. Relator states in his petition that the law under which he was appointed and commissioned took effect August 16, 1909. Respondent admits, and the court will take judicial notice, that said law became effective upon that day. Relator further alleges in his petition, and it is admitted by respondent, that relator was appointed and commissioned Game and Fish Commissioner by the Governor on July 27, 1909. Upon that day his commission was issued, signed by the Governor, attested by the Secretary of State and bore the great seal of the State of Missouri. It therefore appears that relator was appointed to an office twenty days prior to the time when the law became effective, and twenty days before there was any such office, and therefore his appointment and commission were invalid. Rhodes v. Hampton, 101 N.C. 629; State ex rel. v. Meares, 116 N.C. 582; State ex rel. v. Court, 91 P. 4; State ex rel. v. Boecken, 56 Mo. 1. (3) (a) The Legislature had the right to make the appropriation to the game department and in so doing could make it absolute or conditional. Railroad v. Kirkwood, 159 Mo. 239; State ex rel. v. Clifford, 228 Mo. 208; Blanding v. Burr, 13 Cal. 343; State v. Holder, 76 Miss. 181. (b) If the condition in Sec. 62, House Bill 1200, is invalid for any reason, then the whole section is invalid, and the appropriation to the game department must fail. Railroad v. Kirkwood, 159 Mo. 253; State ex rel. v. Clifford, 228 Mo. 194; State v. Moore, 69 N.W. 377; Pickle v. Finley, 44 S.W. 481; Lukens v. Nye, 156 Cal. 503; State v. Holder, 76 Miss. 181; Porter v. Hughes, 4 Ariz. 1; Sprague v. Thompson, 118 U.S. 90; Warren v. Mayor, 2 Gray (Mass.) 84; Slauson v. Racine, 13 Wis. 398; State v. Dousman, 28 Wis. 541; Hinze v. People, 92 Ill. 406; Ex parte Frazer, 54 Cal. 94; Eckhart v. State, 5 W.Va. 515; Cooley's Con. Lim., 179; Reed v. Railroad, 33 Cal. 212; Campau v. Detroit, 14 Mich. 276; State v. Com., 5 Ohio 497; Tel. Co. v. State, 62 Tex. 630; Copeland v. St. Joseph, 126 Mo. 417. (c) The proviso and the appropriation in Sec. 62, House Bill 1200, are so inseparably connected that one cannot stand without the other. Copeland v. St. Joseph, 126 Mo. 428. (d) The court will look to the legislative history of the bill in order to determine whether or not the proviso or condition in the appropriation constituted the inducement or consideration for the Legislature to make the appropriation. Church v. U.S. 143 U.S. 463; Ex parte Helton, 117 Mo.App. 609. (4) (a) The Legislature in adopting the proviso or condition contained in Sec. 62 aforesaid did not interfere with nor in any way usurp any of the powers properly belonging to the Executive Department nor infringe upon the provisions of Art. 3 of the Constitution. Sec. 19, art. 10, Constitution; sec. 43, art. 4, Constitution; State ex inf. v. Shepherd, 177 Mo. 269; State v. Moore, 69 N.W. 377; Pickle v. Finley, 44 S.W. 481. (b) Relator's claim to compensation being subject to legislative control, and the Legislature having refused to appropriate money in payment thereof for this biennial period, two courses are open to him. He can resign or...

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