State ex rel. Zevely v. Hackmann

• Decision Date: 28 July 1923
• Parties: THE STATE ex rel. E. M. ZEVELY v. GEORGE E. HACKMANN, State Auditor, Appellant
• Court: Missouri Supreme Court

254 S.W. 53

300 Mo. 59

THE STATE ex rel. E. M. ZEVELY v. GEORGE E. HACKMANN, State Auditor, Appellant

Supreme Court of Missouri

July 28, 1923

Appeal from Cole Circuit Court. -- Hon John G. Slate, Judge.

Affirmed.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for appellant.

(1) An officer trying to enforce a claim for fees must bring himself within the statute, otherwise the writ will be denied. State ex rel. v. Allen, 187 Mo. 564; State ex rel. v. Police Commrs., 80 Mo. App., 219. (2) Fees are purely creatures of statute and an officer claiming them must be able to put his finger upon the special provision of the statute allowing them or the courts will not award them. State ex rel. v. Allen, 187 Mo. 564. (3) Officers have no claim for official services rendered either against the government, a local corporation or an individual, where no provision has been made by law for compensation for such services. 29 Cyc. 1422-23; Williams v. Chariton County, 85 Mo. 646; Garnier v. St. Louis, 37 Mo. 554. (4) The rule is that all statutes in reference to costs must be construed strictly. An officer cannot legally claim remuneration unless the State has expressly conferred the right. Shed v. Ry. Co., 67 Mo. 690; Gordons v. Maupin, 10 Mo. 353; Crowfut v. Brandt, 58 N.Y. 108. (5) There is a fundamental rule that no officer of this State can pay out the money of the State except pursuant to statutory authority authorizing and warranting such payment. State ex rel. Bradshaw v. Hackmann, 208 S.W. 447; State ex rel. Bybee v. Hackmann, 207 S.W 65; Lamar Township v. Lamar, 261 Mo. 171. (6) Relator in proceedings by mandamus must always show clear and specific right to the relief asked for. State ex rel. v McIntosh, 205 Mo. 635; State ex rel. v. Bridge Co., 206 Mo. 134; Gestner v. Board of Health, 56 N. J. L. 596; Sutherland on Code Pl. & Pr., sec. 7080; State ex rel. v. Stone, 269 Mo. 342. (7) The officers and members of said board shall receive the same pay per diem as officers and members of the General Assembly. The secretary of the State Tax Commission, who is also made secretary of the State Board of Equalization, is not an officer or member of the State Board of Equalization as said board is constituted and defined by the Constitution of Missouri. Sec. 12856, R. S. 1919; State ex rel. v Walker, 97 Mo. 162; State ex rel. v. Seibert, 103 Mo. 401. (8) The terms "clerk" and "secretary," as applied to subordinate ministerial functionaries, are by popular usage synonymous terms, and are frequently used interchangeably. "Secretary" is defined as "a person employed to write orders, letters, dispatches, public and private papers, records and the like; an official scribe, amanuensis, or writer." "Clerk" is defined as one who is employed to keep records and accounts, a scribe, a penman, an accountant; as the "clerk of the court." State v. Currie, 3 N.D. 315; Griffin v. Town of Corydon, 44 S.W. 629; Black's Law Dictionary (2 Ed.) p. 1064. (9) Where the provision of law fixing compensation is not clear, it should be given the construction most favorable to the State. United States v. Claugh, 55 F. 375.

Dumm & Cook for respondent.

(1) The only question for determination in this cause is, Was respondent at the time he rendered the services for which he asks payment as secretary of the State Board of Equalization, an officer of said board in contemplation of Section 12856, Revised Statutes 1919? For a definition of an office and an officer, see United States v. Maurice, 2 Brock, 103 Fed. Cases, No. 15747; 2 Black's Comm., 36; Olmstead v. Mayor, 42 N.Y.S. 481; note (2 Ann. Cas. 390) to State v. Grant, 2 Ann. Cases, 382, citing: Seiler v. State, 160 Ind. 605; Love v. Baehr, 47 Cal. 364; State v. Liedtke, 9 Neb. 464; Scranton School Dist. v. Simpson, 133 Pa. St. 202; State v. Roddle, 12 S.D. 433. See also State v. Brennan, 49 Ohio St. 37; State ex rel. v. Bus, 135 Mo. 331; Mechem on Pub. Officers, p. 1, sec. 1; People v. Hayes, 7 How. Pr. 250; State ex rel. Smith v. Theus, 38 So. 872, 114 La. 1097; State ex rel. v. Maroney, 191 Mo. 545; State ex rel. Attorney-General v. Valle, 41 Mo. 22; Cannon-May Case, 106 Mo. 505; Ponath v. Hamilton, 240 S.W. 447.

WOODSON, C. J. Walker and James T. Blair, JJ., concur; Ragland, J., concurs in result; Graves, J., concurs in separate opinion; White, J., absent. DAVID E. BLAIR, J., dissenting.

OPINION

In Banc

WOODSON C. J.

-- This is a proceeding brought in the Circuit Court of Cole County by the relator against the defendant, George E. Hackmann, State Auditor, having for its object a writ of mandamus, to compel the latter to audit and pay an account of $ 820 alleged to be due the former for services performed by him as secretary of the State Board of Equalization. The trial in the circuit court resulted in a judgment for the plaintiff, and in due time and proper form the defendant appealed the cause to this court.

The case was submitted upon the following agreed statement of facts:

"It is hereby stipulated and agreed in the above cause by and between Jesse W. Barrett, Attorney-General of Missouri, representing respondent, and E. M. Zevely, relator and petitioner, on his own behalf, as follows:

"That at all times mentioned in relator's petition, respondent, George E. Hackmann, was and now is State Auditor of the State of Missouri; that the State Board of Equalization was at all such times composed of the then incumbents of the state offices therein named and charged with the performance of the duties alleged in said petition.

"That on December 16, 1919, relator, E. M. Zevely, was duly appointed as secretary of the State Tax Commission of the State of Missouri under authority granted said commission by Section 12841, Revised Statutes 1919, and that the order of said appointment was in words and figures as follows, to-wit: [Then follows the appointment and qualifications of the plaintiff as such secretary.]

"That during all of the time of the rendition of the services and per diem charged for in the account of relator in the sum of $ 820 as presented to and allowed by the State Board of Equalization on January 8, 1921, and described in relator's petition, which are hereby admitted to have been performed, said relator was secretary of the said State Tax Commission.

"That whatever relationship relator may have sustained to the late State Board of Equalization during the time of the performance of the service and per diem set forth in said account and petition, whether of an official or clerical character, was due to and existed wholly by virtue of the provisions of Article 4 of Chapter 119, Revised Statutes 1919, and particularly of Section 12842 thereof.

"It is further agreed that the account of relator in the sum therein and in relator's petition mentioned is unquestioned, that same was presented to, approved and duly allowed in said sum by said late State Board of Equalization on January 8, 1921, and was ordered by said board to be certified to the State Auditor for audit and payment; that same was so certified and presented and audit thereof was refused by said Auditor.

"That funds sufficient for the payment of said account have been conditionally appropriated therefor by the General Assembly and now remain in the treasury of said state, but it is further expressly agreed that the fact that such appropriation has been made shall not be taken into consideration by the court, nor in anywise influence its judgment in the decision of this cause, but the court shall decide the question at issue according to and wholly upon such other and independent provisions and rules of law and construction as it may believe and find to be applicable and pertinent to a correct determination thereof.

"That the only question herein involved is one of law and resolves itself into this, to-wit: was petitioner, E. M. Zevely, at the time he rendered the services and per diem for which he asks payment as secretary of the State Board of Equalization, an officer of said board in contemplation of Section 12856, Revised Statutes 1919?

"And it is agreed that if the court decides said question in the affirmative, judgment shall be rendered for relator and mandamus shall issue commanding respondent as State Auditor to draw his warrant upon the State Treasury of this State in payment of relator's aforesaid account in said sum of $ 820; but if the court determines said question in the negative, judgment shall go against relator and his petition shall be dismissed."

Then follow the signatures of the parties to the suit.

I. Counsel for the respective parties agree that the only proposition presented by this record for determination by the court is: Was respondent, Zevely, at the time he rendered the services for which he asks payment as secretary of the State Board of Equalization, an officer of said board in contemplation of Section 12856, Revised Statutes 1919? Upon this question respondent respectfully submits the citations following. The above section reads as follows:

"Sec. 12856. The officers and members of said board shall receive the same pay per diem as officers and members of the General Assembly, but no mileage shall be allowed in any case in consequence of their duties as members of said board; and the said board shall meet every year at such time as may be designated."

From the very language of the statute quoted we must approach this question by first ascertaining what is an officer, and whether or not Zevely comes within that application.

Counsel for respondent have collected from all over the country a large number of definitions and adjudications defining "offices" and "officers," and in my opinion, I can do no better than to reproduce them in this...