State ex rel. Volker v. Carey

• Citation: 136 S.W.2d 324,345 Mo. 811
• Decision Date: 22 January 1940
• Docket Number: 35945
• Parties: State of Missouri at the relation of William Volker, James M. Kemper, Robert Nelson Spencer and John T. Harding, Trustees, Relators, v. Maurice Carey, City Treasurer of Kansas City
• Court: United States State Supreme Court of Missouri

136 S.W.2d 324

345 Mo. 811

State of Missouri at the relation of William Volker, James M. Kemper, Robert Nelson Spencer and John T. Harding, Trustees, Relators, v. Maurice Carey, City Treasurer of Kansas City

No. 35945

Supreme Court of Missouri

January 22, 1940

Permanent writ granted.

Paul V. Barnett, James A. Moore, William S. Hogsett, Hale Houts and John B. Gage for relators.

(1) Mandamus is the proper remedy, and the pleadings and the evidence present a proper case for the exercise by this court of its original jurisdiction. State ex rel. Thomas v Treasurer of Callaway County, 43 Mo. 230; State ex rel. Zimmerman v. County Court, 48 Mo. 478; Sheridan v. Fleming, 93 Mo. 321; State ex rel. Wheeler v Adams, 161 Mo. 364; State ex rel. Nolen v Nelson, 310 Mo. 534; State ex rel. Hixson v. Nerry, 105 Mo.App. 462; State ex rel. v. Tracy, 94 Mo. 221; State ex rel. Brunjes v. Brockelman, 240 S.W. 209; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 467; State ex rel. v. Mulloy, 330 Mo. 951, 52 S.W.2d 471; State ex rel. Reynolds County v. State Highway Comm., 328 Mo. 863, 42 S.W.2d 193. (2) The acts of the board of election commissioners in appointing the sixty-nine employees in question, in fixing their compensation, in auditing their claims therefor, and in issuing the sixty-nine warrants in question were fully authorized by and in full compliance with Sections 3, 89 and 92 of the 1937 Election Law (Laws 1937, p. 294). (3) The State of Missouri has power to establish a Board of Election Commissioners for Kansas City. The Election Law of 1937 is a valid law and gave the board power to draw the warrants. State ex rel. Faxon v. Owsley, 122 Mo. 78; State ex rel. Lynn v. Board of Education, 141 Mo. 45; State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Jost, 265 Mo. 51; American Fire Alarm Co. v. Commissioners, 285 Mo. 581; State ex rel. v. Beach, 325 Mo. 175, 28 S.W.2d 105; State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W.2d 79; Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 491; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex rel. Zoological Board v. St. Louis, 318 Mo. 910, 1 S.W.2d 1021; Curtain v. Zerbst Pharmical Co., 333 Mo. 349, 62 S.W.2d 772; State ex rel. Gass v. Gordon, 266 Mo. 412; Westermann v. Supreme Lodge, 196 Mo. 709; Ross v. Railroad Co., 111 Mo. 27; State ex rel. Hanlon v. Maplewood, 99 S.D. (2d) 142; Ewing v. Vernon County, 216 Mo. 689; State ex rel. Thomas v. Treasurer of Callaway County, 43 Mo. 230; State ex rel. Zimmermann v. County Court, 48 Mo. 478; Sheridan v. Fleming, 93 Mo. 321; State ex rel. Wheeler v. Adams, 161 Mo. 369; State ex rel. Nolen v. Nelson, 310 Mo. 534. (4) The funds were appropriated, an adequate cash balance was in the hands of respondent, and it was the legal ministerial duty of respondent to pay the warrants when they were presented by the payees and again when they are presented by relators. The relators are entitled to the peremptory writ of this court requiring respondent to pay the warrants. State ex rel. Moss v. Hamilton, 303 Mo. 302, 360 S.W. 471; State ex rel. Jarvis v. Deering, 274 S.W. 477; State ex rel. Summers v. Hamilton, 279 S.W. 33; State ex rel. Chaney v. Grinstead, 282 S.W. 715; State ex rel. Hart v. Ludden, 285 S.W. 421.

Sam C. Blair, Marcy K. Brown, Jr., and Wyman Wickersham for respondent.

(1) The authority to create a board of election commissioners is vested in the Legislature of the State. The power to create such a board and the power to levy taxes to meet the expenses of the board are legislative functions which may not be delegated to the board or other administrative body. This statute which gives to an administrative body the authority to incur debts against the city of Kansas City without restriction, said debts to be paid by income to be derived from taxes, is an invalid delegation of the taxing power. Mo. Const., Art. IV, Sec. 1, Art. X, Sec. 1; State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W.2d 74. (2) The statute requires the respondent to pay warrants drawn upon the city treasury in violation of the provisions of the city charter with respect to the disbursing of city funds. Charter of Kansas City, secs. 93, 94.

Gantt, J. Tipton, C. J., and Clark, Hays and Douglas, JJ., concur; Ellison, J., concurs in separate concurring opinion in which Leedy, J., concurs.

OPINION

GANTT

Original action in mandamus to compel the Treasurer of Kansas City to pay sixty-nine warrants issued by the Kansas City Election Commissioners to certain persons employed by the commission to assist in the registration of the voters of Kansas City under Laws of Missouri 1937, page 294. The commissioner, Hon. Wm. C. Lucas, reported findings of fact and conclusions of law and recommended that a peremptory writ be granted. On stipulation of the parties, Harry J. Gorman is substituted as respondent city treasurer for Maurice Carey, deceased.

The treasurer of Kansas City is a ministerial officer. Under the general rule he cannot question the constitutionality of a statute fixing his ministerial duties. However, it appears from the record that the fiscal agencies of the city directed him to refuse payment on presentation of the warrants. For this reason he is authorized to question the constitutionality of provisions of the act. [State ex rel. Wiles v. Williams, 232 Mo. 56, 71, 133 S.W. 1.]

Respondent city treasurer admits that the maintenance of an election board is a state function. Furthermore, we have ruled that the Legislature has authority to compel a city to provide for said maintenance. [State ex rel. v. Owsley, 122 Mo. 68, 26 S.W. 659; State ex rel. Lynn v. Board of Education, 141 Mo. 45, 41 S.W. 924; State ex rel. v. Mason, 153 Mo. 23, 54 S.W. 524.]

The commissioners were appointed on November 9, 1937. Under Section 3, page 297, Laws of Missouri 1937, they employed persons to assist in the registration. Under Section 89, page 339, Laws of Missouri, 1937, they fixed the compensation of said persons. Under Section 92, page 340, Laws of Missouri, 1937, they issued warrants on the city treasurer for one-half of the compensation due said persons and issued warrants on the county treasurer for one-half of the compensation due said persons. The city contended that the commission was without authority to issue the warrants, and the city treasurer refused to pay the same. The commission then certified the pay roll to the city, and it issued warrants to the employees of the commission for the months of November and December, 1937. The warrants were paid by the city treasurer. On certification of the pay roll for January, 1938, the city refused to consider the same, contending that the commission was without authority to fix the compensation of the employees of the commission. The city fixed $ 3.50 a day as a basis for compensation, and accordingly issued to each of said employees a warrant for $ 1.75 a day. The employees accepted payment under protest.

The commission had agreed to pay to each of said employees more than $ 3.50 a day, but not more than $ 6 a day, the maximum allowed under the statute. In this situation the commission determined the balance due said employees and issued to each a warrant on the city treasurer for one-half said amount. The city treasurer refused to pay the warrants. Thereafter the employees assigned the warrants to relators, who also presented them to the city treasurer and payment was refused. Thereupon relators instituted this action.

I. Respondent contends that certain sections of the Registration Act are unconstitutional. In the return to the alternative writ he made an effort to question the constitutionality of said sections. He therein alleged that if Sections 3, 4, 89, 90 and 92 of the act be given certain constructions (set forth in the return) they are unconstitutional. The said allegations in the return are admissions that said sections could be otherwise construed. If so, they may be constitutional. In other words, the record does not present a constitutional question for the reason the respondent does not challenge said sections as unconstitutional. The rule is stated as follows:

"To raise that question (a constitutional question), the contention must be that the law is unconstitutional whatever it means and under any construction of which it is susceptible. 'The only challenge of unconstitutionality of a statute which does involve such a question is the claim that the statute is inherently and totally invalid in any event'" (Moyer et ux. v. Orek Coal Co., 78 S.W.2d 107, l. c. 108; Curtin v. Zerbst Pharmacal Co., 333 Mo. 346, 62 S.W.2d 771, 772; Langan v. United States Life Ins. Co., 344 Mo. 989, 114 S.W.2d 984).

II. Respondent also contends that Section 92 of the Registration Act is invalid. He argues that it conflicts with the city charter, which makes provision for the payment of claims against the city. If so, the provisions of the charter must yield to the Constitution and laws of the State. ...