State v. Hackmann

• Decision Date: 03 July 1924
• Docket Number: No. 25258.,25258.
• Citation: 264 S.W. 366
• Parties: STATE ex rel. KESSLER et al. v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

264 S.W. 366

STATE ex rel. KESSLER et al. v. HACKMANN, State Auditor.

No. 25258.

Supreme Court of Missouri.

July 3, 1924.

Mandamus proceeding by the State of Missouri, on the relation of D. C. Kessler and others, members of the State Board of Examiners for Barbers, against George E. Hackmann, State Auditor. Writ denied.

W. C. Irwin, of Jefferson City, and Curtis Dunn, of Cedar City, for relators.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for respondent.

WHITE, J.

Original mandamus proceeding by the state board of examiners for barbers to compel the state auditor to audit an account of the board. The issuance of the alternative writ was waived by respondent who filed a demurrer to the petition. Thus the questions for determination here are presented in the allegations of the petition for the writ.

The petition, after reciting the official status of the members of the board and their duties prescribed by law, states that on the 1st day of December, 1923, the board made out and certified to the state auditor, respondent, a detailed statement of expenses incurred by the hoard during the month of November, 1923, requesting said auditor to issue a warrant for the payment of said accounts out of the funds in the hands of the state treasurer, arising from fees collected by the board under the statute providing for the same; that respondent refused, and still refuses, to issue a warrant in payment of the accounts.

I. The relators base their right to a peremptory writ upon the provisions of the acts of 1921 (section 4, p. 157, Acts 1921), which are as follows:

"See. 4. Compensation of Members of Board— Shall File Report with Auditor.—The remuneration of each member shall not exceed the sum of five dollars per day while engaged in their duties as such, exclusive of the necessary traveling and other expenses, to which they shall also be entitled: Provided, however, that all moneys collected by the board or its treasurer shall be paid into the state treasury, there to constitute a fund for the purpose of carrying out the provisions of this act. The state auditor is hereby directed to issue his warrants monthly, upon the state treasurer out of this fund only, for the payment of the salaries, office and all other necessary expenses of said board. A detailed statement of the expenses incurred by the board, approved by the secretary of said board, shall be filed with the state auditor before warrants are drawn for the payment of same by the state auditor, and any surplus remaining in said fund annually after payments above authorized shall be paid into the public school fund of this state."

The relators call attention to the provision of that section which creates, out of the fees collected by the board, a fund for carrying out the provisions of the act, with directions to the state auditor to issue warrants monthly to the treasurer for salaries and other expenses of the board to be paid out of that fund. It `a claimed that the auditors must issue warrants for such expenses on accounts properly presented, without a special appropriation by the Legislature for the purpose.

The argument is that the fund created by the Legislature is in no sense a public fund, at least not available for any general purpose; that it cannot be appropriated for any other purpose than the payment of the salaries and expenses incurred by the board, until all that expense is met; then the balance may be paid into the school fund. Since that is the case, a special appropriation by the Legislature setting apart the fund, or any part of it, for...