State v. Gordon

• Decision Date: 22 December 1915
• Docket Number: No. 19002.,19002.
• Citation: 181 S.W. 1016
• Parties: STATE ex rel. GASS, State Superintendent of Public Schools, v. GORDON, State Auditor.
• Court: Missouri Supreme Court

181 S.W. 1016

STATE ex rel. GASS, State Superintendent of Public Schools, v. GORDON, State Auditor.

No. 19002.

Supreme Court of Missouri.

December 22, 1915.

In Banc. Original application for mandamus by the State, on relation of Howard A. Gass, State Superintendent of Public Schools, against John P. Gordon, State Auditor. Writ issued.

This is an original proceeding by mandamus, brought by relator as State Superintendent of Public Schools to compel respondent, as State Auditor, to set apart and certify for payment to the relator, for the use of the public schools of the state, the sum of $496,587.34, under the act of February 12, 1915 (Laws 1915, p. 89), which required the State Auditor "to ascertain and set apart one-third of the ordinary revenue" for the support of the public schools.

The case is here upon the pleadings and an agreed statement of facts. The pleadings are conventional, and, since no point is made touching them, we need not cumber the books with them. The agreed statement of facts, which we apprehend will be found sufficient to convey an understanding of the conditions and issues, runs thus:

"It is agreed that during the fiscal year ending June 30, 1915, there were paid into the state treasury, to the credit of the general revenue fund, the following sums from the different sources mentioned:

"(1) From county collectors (tax on real and personal property), $3,851,174.61.

"(2) County foreign insurance tax, $365,449.17.

"(3) Private car tax, $9,870.90.

"(4) Express companies' tax, $44,737.68.

"(5) Notaries' commissions, $12,336.

"(6) Land Department fees, $556.22.

"(7) Fees earned in office of State Auditor, $8,380.88.

"(8) Fees earned by office of Secretary of State, $9,719.30.

"(9) Incorporation tax (fees paid by corporations upon their incorporation and upon their increase of capital stock), $87,017.50.

"(10) Fees from excise commissioner of city of St. Louis, $42,462.

"(11) Proceeds of sale of beer stamps, $460,858.27.

"(12) Interest received from state depositories, $147,223.35.

"(13) Sale of oil stamps (being fees from oil inspections), $150,466.80.

"(14) Interest on deposit of fees by St. Louis excise commissioner, $47.17.

"(15) Interest on deposit of Fish Commission, $18.74.

"(16) Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals, $3,573.62.

"(17) Fees collected by excise commissioners of St. Louis county, $3,713.02.

"(18) Receipts from sale of laws, $2,018.50.

"(19) Receipts from old bond and coupon account, $15,270.43.

"(20) Receipts from amounts refunded, $36,032.06.

"(21) Receipts from fines assessed against lumber companies for violation of anti-trust act, $252,728.65.

"(22) Receipts from fees of Poultry Experiment Station, $5,280.96.

"(23) Receipts from fees of Warehouse and Grain Department, $127,123.37.

"(24) Moneys earned by State Auditors' examiners, $6,702.08.

"(25) Receipts from insurance on Federal Soldiers' Home, $2,308.92.

"(26) Receipts from sale of old furniture, $165.

"(27) Receipts from itinerant vendors' licenses, $25.07.

"(28) Receipts from fees of Bureau of Labor, $2.07.

"(29) Receipts from fees of Board of Agriculture, $25.

"(30) Receipts from fees of Fruit Experiment Station, $299.72.

"(31) Receipts from fish commissioner's refund, $301.05.

"(32) Transferred from Insurance Department fund, $125,000.

"(33) Transferred from factory inspection fund, $6,271.93.

"(34) Transferred from text-book fund, $990.

"(35) Receipts from fees of Public Service Commission, $36,946.87.

"The aggregate of the items enumerated above, numbered 1, 2, 3, and 4, is $4,271,232.36. The respondent, State Auditor, did on July 3, 1915, set apart and certify to the relator one-third of said sums, that is to say, $1,423,744.12, as the total amount to be apportioned by relator for the benefit of the public schools of the state.

"The respondent as State Auditor, and his predecessors in said office, have continuously annually for many years prior to the present year set apart and certified to the relator and the predecessors of the relator in the office of State Superintendent of Public Schools, in addition to one-third of the moneys derived from the first four sources above mentioned, one-third also of the moneys derived from the following sources, to wit:

"(5) Notaries' commissions.

"(6) Land Department fees.

"(7) Fees earned in office of State Auditor.

"(8) Fees earned by office of Secretary of State.

"(9) Incorporation tax.

"(10) Fees from excise commissioner of city of St. Louis.

"(11) Proceeds of sale of beer stamps.

"(12) Interest received from state depositories.

"(13) Sale of oil stamps.

"(14) Interest on deposit of fees by St. Louis excise commissioner.

"(15) Interest on deposit of Fish Commission.

"(16) Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals.

"(17) Fees collected by excise commissioners of St. Louis county.

"That the moneys derived from said sources, numbered 5 to 17, both inclusive, and paid into the state treasury to the credit of the general revenue fund during the year ending June 30, 1915, amounted in the aggregate to $926,372.87, no portion of which has been set apart and certified by respondent as State Auditor to the relator, for the year ending June 30, 1915.

"Neither the respondent, as State Auditor, nor any of his predecessors in said office, have heretofore set apart or certified to the relator or his predecessors in the office of Superintendent of Public Schools, any portion of the moneys derived and paid into the state treasury to the credit of the general revenue fund from the following sources:

"(18) Receipts from sale of laws.

"(19) Receipts from old bond and coupon account.

"(20) Receipts from amounts refunded.

"(21) Receipts from fines assessed against lumber companies for violations of anti-trust act.

"(22) Receipts from fees of Poultry Experiment Station.

"(23) Receipts from fees of Warehouse and Grain Department.

"(24) Moneys earned by State Auditors' examiners.

"(25) Receipts from insurance on Federal Soldiers' Home.

"(26) Receipts from sale of old furniture.

"(27) Receipts from itinerant vendors' licenses.

"(28) Receipts from fees of Bureau of Labor.

"(29) Receipts from fees of Board of Agriculture.

"(30) Receipts from fees of Fruit Experiment Station.

"(31) Receipts from fish commissioner's refund.

"(32) Transferred from Insurance Department fund.

"(33) Transferred from factory inspection fund.

"(34) Transferred from text-book fund.

"(35) Receipts from fees of Public Service Commission.

"Some of the laws from which these moneys were derived and paid into the state treasury are of comparatively recent enactment, as will be pointed out in the briefs to be filed.

"The relator here expressly waives and abandons any claim to a setting apart or a certificate to him by respondent of any part of the moneys derived from the sources now to be mentioned and already referred to in this statement by numbers, as follows: (19) Receipts from old bond and coupon account. (20) Receipts from amounts refunded. (25) Receipts from insurance on Federal Soldiers' Home. (26) Receipts from sale of old furniture. (27) Receipts from itinerant vendors' licenses. (31) Receipts from fish commissioner's refund. And it is agreed that the relator's petition be taken and regarded as amended by striking out any claim to a setting apart of moneys derived from any of the sources last mentioned.

"After excluding from consideration the moneys derived from the six sources last mentioned (claim to which is now abandoned), the moneys derived from the other sources mentioned (no part of which has ever been set apart and certified by State Auditors for the benefit of the public schools), and paid into the state treasury to the credit of the general revenue fund, amount to the sum of $563,389.15.

"The moneys paid out for salaries and expenses of the Warehouse and Grain Department during the period mentioned were $96,491.42. The receipts of said department were $127,123.37.

"The sum paid out of the state treasury for the support (salaries and expenses) of the Public Service Commission during the year mentioned were largely in excess of the fees paid into the state treasury and earned by said commission.

"The same is true as to the proceeds of the sale of laws, the expense of publishing the laws being greater than the amount received from the sale.

"The expense of maintaining the Poultry Experiment Station, which is paid out of the state treasury, is largely in excess of the fees received on that account.

"The same is true of salaries and expenses connected with the Department of Labor, the Board of Agriculture, and the Fruit Experiment Station; in each case the expense of maintaining each one of these departments, which is paid out of the state treasury, is in excess of the fees received from them respectively.

"The amount of the salaries, wages, and expenses of the State Auditors' examiners, which were paid by the state, was substantially the same as the moneys paid into the state treasury on account of the services of said examiners.

"The $125,000 item, numbered 32 in this statement, `transferred from Insurance Department fund,' was so transferred by virtue of section 55a, an act with the heading, `Appropriations; Contingent and Incidental Expenses for the Years 1915 and 1916,' approved April 2, 1915 (Sessions Acts 1915, p. 20).

"The Attorney General wrote to the respondent, the State Auditor, the opinions set out in the return of the respondent.

"It is agreed that, prior to the filing of the petition for an alternative writ of mandamus, demand was made by relator upon respondent for the relief herein sought, and the same was refused; and that the petition shall be considered and taken as amended so...