State ex rel. Volker v. Kirby

• Citation: 136 S.W.2d 319,345 Mo. 801
• Decision Date: 22 January 1940
• Docket Number: 35946
• Parties: State of Missouri at the relation of William Volker, James M. Kemper, Robert Nelson Spencer and John T. Harding, Trustees, Relators, v. Truston W. Kirby, County Treasurer of Jackson County
• Court: Missouri Supreme Court

136 S.W.2d 319

345 Mo. 801

State of Missouri at the relation of William Volker, James M. Kemper, Robert Nelson Spencer and John T. Harding, Trustees, Relators, v. Truston W. Kirby, County Treasurer of Jackson County

No. 35946

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; Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W.2d 689; Curtain v. Zerbst Pharmical Co., 333 Mo. 349, 62 S.W.2d 772; State ex rel. Buckner v. McElroy, 309 Mo. 595; State ex rel. Hall v. McElroy, 309 Mo. 552; 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.W.2d 142; Ewing v. Vernon County, 216 Mo. 689. (4) The funds were budgeted and 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 were 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.

John B. Pew and Rufus Burrus for respondent; James W. Broaddus of counsel.

(1) Mandamus is not a proper remedy. The Board of Election Commissioners had no authority to issue the warrants in controversy and the respondent had no authority to pay them. Laws 1933, p. 340, secs. 11, 19, 20; Secs. 12162, 12163, 12169, R. S. 1929; State ex rel. Barker v. K. C. Gas Co., 163 S.W. 857, 254 Mo. 515; State ex rel. v. Maplewood, 99 S.W.2d 140, 231 Mo.App. 739; Secs. 10146, 10154, R. S. 1929; Laws 1937, p. 569; Art. 33, Chap. 38, R. S. 1929. (2) The provisions of the election laws approved June 30, 1937 (Laws 1937, p. 294), under which the Board of Election Commissioners claimed the power to issue warrants on the county treasury are unconstitutional and void, being in violation of Section 36, Article 6 of the Constitution of Missouri, which gives the county court jurisdiction of all county business. The Board of Election Commissioners being a mere administrative body cannot conduct county business by creating debts without the approval and consent of the county court. State ex rel. Buckner v. McElroy, 309 Mo. 595; State ex rel. v. Rose, 312 Mo. 369. (3) Provisions of the election law approved June 30, 1937 (Laws 1937, p. 294), under which the Board of Election Commissioners claimed the right to draw warrants on the county treasury, the amount of which it claims is wholly within its discretion, are unconstitutional and void, being in violation of Article III of the Constitution of Missouri, which provides for three distinct departments of government: legislative, executive and judicial. The Board of Election Commissioners in so doing is acting in a legislative and judicial capacity which a mere administrative body cannot do. State ex rel. v. Hackman, 314 Mo. 33; O'Donnell v. Wells, 21 S.W.2d 762; State ex rel. v. Atkinson, 271 Mo. 28; State ex rel. v. Mason, 153 Mo. 58; Merchants Exchange v. Knott, 212 Mo. 616; State ex rel. v. St. Louis, 318 Mo. 870, 2 S.W.2d 725. (4) The provisions of the election law approved June 30, 1937 (Laws 1937, p. 294), under which the Board of Election Commissioners claims it has authority to appoint as many additional assistants as it may desire, it being the sole judge for the employment of any number it may desire, and under which provisions it claims the right to draw warrants upon the county treasury to pay such assistants, is unconstitutional and void, being in violation of Sections 1 and 10, Article 10 of the Constitution of Missouri, in that said law attempts to delegate to said Board of Election Commissioners taxing powers without limitation and without any maximum limit within which said board's power must be exercised and are therefore void. State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W.2d 74.

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 Jackson County 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 Mo. 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.

The treasurer of Jackson County 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 county 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.]

The commissioners were appointed November 9, 1937, under Section 3, page 297, Laws of Mo. 1937, they employed persons to assist in the registration. Under Section 89, page 339, Laws of Mo. 1937, they fixed the compensation of said persons. Under Section 92, page 340, Laws of Mo. 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 county contended that the commission was without authority to issue the warrants, and the county treasurer refused to pay the same. The commission then certified the pay roll to the county and it issued warrants to the employees of the commission for the month of November, 1937. The warrants were paid by the county treasurer. On certification of the pay rolls for December, 1937, and January, 1938, the county refused to consider the same, contending that the commission was without authority to fix the compensation of the commission. The county 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 county treasurer for one-half of said amount. The county treasurer refused to pay the warrants. Thereafter the employees assigned the warrants to relators who also presented them to the county treasurer and payment was refused. Thereupon relators instituted this action.

I. Respondent contends that mandamus is not a proper remedy.

It will not be necessary to consider the question. In view of the great expense incident to a commissionership it would be an injustice to rule, after submission of the case, that mandamus was not a proper remedy. [State ex rel. McWilliams v. Bates et al., 235 Mo. 262, 282, 138 S.W. 482; State ex rel. Reynolds v. Highway Comm., 328 Mo. 859, 863, 42 S.W.2d 193.] In the McWilliams and Reynolds cases there were heavy commissionership expenses. For that reason, after submission of the case, we did not consider the question. Absent such expense, we may, after submission, consider the question of remedy. [State ex rel. School District v. Neaf et al., 344 Mo. 905, 130 S.W.2d 509.]

II. Respondent also contends that the election law in question violates Section 36, Article VI of the Constitution, which follows: "In each county there shall be a county court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. . . ."...