State v. Gordon

• Decision Date: 03 July 1911
• Parties: STATE ex rel. TOLERTON, State Game and Fish Com'r, v. GORDON, State Auditor.
• Court: Missouri Supreme Court

139 S.W. 403

236 Mo. 142

STATE ex rel. TOLERTON, State Game and Fish Com'r, v. GORDON, State Auditor.

Supreme Court of Missouri.

July 3, 1911.

1. STATUTES (§ 119)—TITLE—APPROPRIATION BILL—PROVISO.

Act April 19, 1911 (Laws 1911, p. 3), is entitled "An act to appropriate money for the support of the state government, the payment of the contingent and incidental expenses of the state departments, public printing, and for the payment of certain other demands against the state, for which no appropriation has heretofore been made, for the years 1911 and 1912, and appropriating money to the various counties to be used in the construction and improvement of public roads, with an emergency clause." Section 62 appropriated money for the salary of the game and fish commissioner and for the maintenance of the fish and game department, but contained a proviso that none of the money should be available or paid so long as the present state game and fish commissioner remained in office or was in any wise connected with the office of state game and fish commissioner, except the salaries and accounts due at the time of the approval of the act. Held that, while the proviso had an object ulterior to the subject of the appropriation of the money, it was related to that subject, and had a sufficiently natural connection therewith as not to be misleading, and was therefore not objectionable as not within the title of the act as required by Const. art. 4, § 28.

2. MANDAMUS (§ 172)—TITLE TO OFFICE.

Where relator had been appointed and commissioned by the Governor as game and fish commissioner, and since his appointment had been acting as such and had discharged the duties of the office, and there was no person asserting an adverse title thereto, relator's title to the office could not be challenged in a mandamus proceeding against the State Auditor to compel the allowance of claims for relator's salary and expenses.

3. MANDAMUS (§ 164)—RETURN—RELEVANCY.

Where, in mandamus to compel the State Auditor to audit claims for relator's salary and expenditures as game and fish commissioner, the validity of Appropriation Act April 19, 1911 (Laws 1911, p. 18) § 62, in so far as it provided that the money appropriated should not be available so long as plaintiff remained in office, was in issue, allegations in the return referring to the appointment of a legislative commission to investigate relator's conduct of the office, and the reports made by such commission as the reason for the action of the Legislature in enacting the proviso, were immaterial.

4. EVIDENCE (§ 29)—JUDICIAL NOTICE—LEGISLATIVE PROCEEDINGS.

In reviewing the validity of a proviso attached to Act April 19, 1911 (Laws 1911, p. 18) § 62, providing that appropriations for the fish and game department should not be available so long as the present game and fish commissioner remained in office, the court will take judicial notice of the entire legislative proceedings in the course of the passage of the act, whether pleaded or not, and in order to arrive at the legislative intent would notice the majority report of the legislative committee appointed to investigate the department sustaining charges of misconduct in office against relator, and also of the report of the minority members of the committee arriving at the opposite conclusion.

5. OFFICERS (§ 4)—ABOLITION OF OFFICE— SALARY — APPROPRIATION — LEGISLATIVE POWER.

The Legislature may refuse to make an appropriation for the payment of the salary and expenses of any public officer holding an office under the Constitution or laws of the state, and may abolish any office not provided for by the Constitution, and, in case it does so, the incumbent has no legal ground of complaint.

6. STATUTES (§ 102)—APPROPRIATION BILL— SPECIAL LEGISLATION.

Appropriation Act April 19, 1911 (Laws 1911, p. 18) § 62, appropriates money for the salary and expenses of the fish and game commissioner, and contains a proviso that the appropriation shall not be available or paid so long as the present state game and fish commissioner remains in the office or is in any wise connected therewith. Held, that the proviso is unconstitutional as special legislation in singling out the relator from the class of persons eligible to hold the office and making the proviso apply to him only, and impose on him a burden not imposed on any other person.

7. CONSTITUTIONAL LAW (§ 54)—DEPARTMENTS OF GOVERMENT—INTERFERENCE WITH JUDICIARY.

A legislative committee having been appointed to investigate relator's official conduct as game and fish commissioner, a majority reported that he was guilty of misconduct, whereupon a proviso was added to Act April 19, 1911 (Laws 1911, p. 3), appropriating money for the fish and game department, including the salary of the commissioner, providing that no part of the appropriation should be available so long as relator remained in office. Held that, since such proviso was in effect a legislative judgment that relator was unfit to hold the office, which was not within the power of the Legislature to determine, the proviso was unconstitutional as an encroachment on the powers of the judiciary.

8. CONSTITUTIONAL LAW (§ 58)—STATUTES— ENCROACHMENT ON EXECUTIVE.

Since it is the duty of the executive to appoint the fish and game commissioner for a period of four years, and to see that the laws are distributed and executed as required by Const. art. 5, § 6, Act April 19, 1911 (Laws 1911, p. 18) § 62, appropriating money for the fish and game department, in so far as it provides that no part of the appropriation shall be available so long as the present state game and fish commissioner remains in office, is unconstitutional as an encroachment on the executive, in that its effect would be to remove the commissioner from office.

9. STATUTES (§ 64)—PARTIAL INVALIDITY— EFFECT.

The state having established an elaborate scheme and an important department for the protection of wild game and fish, and authorized the expenditure of $200,000 within two years to buy, ship, keep, propogate, and preserve game, and having invested $43,885.85 for game, birds, and eggs, for running and equipping a game farm, and for shipping and distributing the birds and eggs among the people of the state, the Legislature passed Act April 19, 1911 (Laws 1911, p. 18) § 62, appropriating $90,000 for the salary of the fish and game commissioner and the other expenses for the maintenance of the department, but added an unconstitutional proviso that no part of the appropriation should be available while the present fish and game commissioner remained in office or was in any wise connected therewith. Held, that it could not be presumed that the Legislature would not have made any appropriation except on condition of the proviso attached, and, the section being complete without it, its invalidity did not invalidate the balance of the section.

Valliant, C. J., and Woodson, J., dissenting. Brown, J., dissenting in part.

In Banc. Mandamus by the State, on the relation of Jesse A. Tolerton, State Game and Fish Commissioner, against John Gordon, Auditor of State. Decree for relator.

Lon O. Hocker and R. T. Railey, for relator. Elliott W. Major, Atty. Gen., and Charles G. Revelle, Asst. Atty. Gen., for respondent.

KENNISH, J.

This is an original proceeding in this court by mandamus. The relator, Jesse A. Tolerton, is the State Game and Fish Commissioner of this state, and the respondent, John Gordon, is the State Auditor. The object and purpose of the suit is to have this court issue its peremptory writ of mandamus requiring and compelling the respondent as such auditor to audit and allow two accounts theretofore presented to respondent by relator, which respondent refused to audit or issue warrants for as requested. The issuance of the alternative writ was waived, and the respondent filed his return to the petition. The relator filed a motion to strike out a part of the return and for judgment on the pleadings. Upon the issues of law thus raised the cause was argued and submitted for decision.

It appears from the facts alleged, and which stand admitted by the pleadings, that on the 1st day of May, 1911, relator, as Game and Fish Commissioner, presented to respondent, as Auditor, for audit and allowance, two accounts, one for his salary for the month of April, 1911, and the other an account for feed purchased for the game birds belonging to the state, kept and in charge of the relator on the state game farm. The account for feed was in the sum of $47.91, and was contracted, as shown by its date, on the 20th day of April, 1911. Respondent audited and allowed the account for relator's salary to the 19th of April, 1911, but refused to audit or issue a warrant for any salary after that date or for the account for feed. When the accounts were presented to respondent he indorsed on the back of the salary account the following: "Approved and audited in the sum of $131.94, being salary of Game and Fish Commissioner from April 1st, 1911, to April 19th, 1911, inclusive, being day Governor signed and approved House Bill No. 1,200. This 1st day of May, 1911. John P. Gordon, State Auditor." And on the account for feed: "Refused to audit for want of an available appropriation to pay same. This 1st day of May, 1911. John P. Gordon, State Auditor."

Respondent made no objection to the correctness of the accounts as authorized by the provisions of the game and fish law under which relator was acting, but based his refusal to audit them and issue warrants therefor upon the provisions of section 62 of the act known as House Bill No. 1,200. Said act is the general appropriation act passed by the General Assembly for the support and maintenance of the institutions of this state for the years 1911 and 1912, and section 62 thereof is the only part of said act making provision for the support of the fish and game department for the years named. This act was approved by the Governor April...