State v. McElroy

• Decision Date: 18 July 1925
• Docket Number: No. 25249.,25249.
• Citation: 274 S.W. 749
• Parties: STATE ex rel. BUCKER et al. v. McELROY et al.
• Court: Missouri Supreme Court

274 S.W. 749

STATE ex rel. BUCKER et al. v. McELROY et al.

No. 25249.

Supreme Court of Missouri, Division No. 1.

July 18, 1925.

Original mandamus by the State of Missouri, on the relation of Thos. B. Bucker and others, against Henry F. McElroy and others. Peremptory writ denied.

H. S. Conrad, T. J. Seehorn, A. L. Cooper, and Wallace Sutherland, all of Kansas City, for relators.

Ralph S. Latshaw, County Counselor, and John T. Barker, both of Kansas City, for respondents.

GRAVES, J.

Original action in mandamus. Relators are the duly elected and acting circuit judges of Jackson county, Mo. Respondents are two of the county judges of said county. Relators, among other things, say:

"I. Relators are the judges of the circuit court of the Sixteenth judicial circuit, composed of Jackson county, Mo., alone, wherein there is located a city having, according to the last preceding national census, not less than 300,000 and not more than 600,000 inhabitants, and relators are and were at all the times herein referred to the members of and composed the board of paroles of said county, and respondents are and were at all of said times the judges of the county court of said county.

"II. For several years last past, and now, there have been and are located and maintained in said county sundry public institutions for the detention, care, and education of delinquent and dependent children, known as parental schools, viz., the McCune Parental School for Boys (commonly known and hereinafter referred to as the McCune Home), the Jackson County Parental School for Girls (commonly known and hereinafter referred to as Girl's Home) and the Detention Home, all of which are and have been for several years last past, under the exclusive government, regulation, control, and management of said board of paroles in the exercise of the power, authority, and duty conferred upon said board by the laws of the state of Missouri, appertaining thereto.

"III. There are now living in and domiciled at said institutions several hundreds of children, many of whom are of tender age, the boys being located at the McCune Home, the girls at the Girl's Home, and both boys and girls at the Detention Home, all of whom are constantly, from day to day, in imperative need of warm and serviceable clothing, nutritious food, beds, bedding, medicines, and such other necessities of life as are essential to their health, reasonable comfort, education, and general well-being and, as well, of books, school equipment, and other personal property necessary for their care, maintenance, and education and to their consequent development as useful, self-supporting and law-abiding citizens, as designed and contemplated in the establishment of said institutions as public agencies and charities.

"IV. It is the duty of respondents as such judges of the county court to pay the expenses contracted and incurred by said board of paroles in the conduct, operation, government, management, and maintenance of said institutions, including all expenses deemed by the said board of paroles to be necessary and proper, when duly certified by said board of paroles to the county court of said county, notwithstanding which, and although funds are available therefor, the respondents have failed and refused to observe their said duty, but, on the contrary, with the design and purpose of usurping and arrogating to themselves the rights, powers, and duties of said board and of relators as members thereof, and to hinder, interfere with, and prevent the exercise, by said board and relators, of their lawful rights, powers, and duties, have, for many weeks last past, pursued and are now pursuing a course of conduct and committing acts tending to and rendering said board unable to function and perform and discharge its legal powers and duties in the premises, in this, to wit: (i) Respondents have announced, declared, and inaugurated a general plan and policy that the said county court would dishonor, repudiate, and refuse to pay all bills, claims, debts, and obligations incurred and contracted by the said board for supplies of all character for said institutions, unless and until the said board should first obtain the consent and approval thereto and thereof by said county court, and further, that said supplies should be purchased by an agent appointed by said court and, by it, designated as purchasing agent."

The petition then charges that the county court made an order that all supplies purchased for any county institution, or for any county officer, should be made by a duly constituted purchasing agent, appointed by the county court; said order being in language as follows:

"The court orders that all supplies of whatever nature for every department, court, board, officer, or employee of this county shall hereafter be purchased only by requisition submitted to and approved by the county court before any such purchase shall be made, and that said purchase shall thereupon be made in due course by the lawfully constituted purchasing agent of this county, and that any purchase made otherwise than as hereinbefore set out is illegal and void and constitutes no valid claim or legal or binding charge against this county therefor.

"And the court orders that due public notice hereof be made by publication in two newspapers published in Independence, Mo., and in two newspapers published daily in Kansas City, Mo., and also in the Daily Record of Kansas City, Mo., once a week for four consecutive weeks. Approved unanimously; Judge Hayes giving as his reason for voting for said motion that he desired a clear and distinct understanding as to whether or not the county purchasing agent was the legally authorized person to make all purchases for the county."

The petition further charges that the county court (or a majority thereof) refused to pay a list of bills for merchandise bought for these institutions by the circuit judges acting as a board of paroles. They ask our writ to order the payment of such bills, and also to compel the county court to vacate or amend its order aforesaid, to the end that it might not interfere with the board of paroles.

Judge Elihu W. Hayes, of the county court, by his return, expresses a willingness to pay the bills and leave the mentioned institutions under the control of the board of paroles. The other two judges of the county court, in their return, after admitting that these were the three named institutions in their county, then aver:

"Now, at this date, come the said Henry F. McElroy and Harry S. Truman, judges of the Jackson county court, and, for their return to the alternative writ of mandamus heretofore issued in this cause, admit that the relators are the judges of the circuit court of the Sixteenth judicial circuit composed of Jackson county, Mo., alone, wherein there is located a city of not less than 300,000 and not more than 600,000 inhabitants, and that respondents herein are and were at all of the times herein stated the judges of the county court of said Jackson county, Mo., and limit that the McCune Parental School for Boys, the Jackson Parental School for Girls, and the Detention Home mentioned in relator's petition are located in said Jackson county, Mo.

"Respondents further state that as judges of the county court of Jackson county, Mo., said homes, and the management and control thereof, are vested exclusively in them, as the county court of Jackson county, Mo., and that relators as circuit judges of said county have no control over any of said homes, and have no authority to purchase supplies therefor; it being the duty of respondents to make such purchases.

"Respondents further state that relators, as circuit judges, claim that under and by virtue of sections 13808 to 13814, inclusive, of the R. S. of Mo. 1919, and the Session Laws of Mo. 1921, pages 543 and 544, they are vested with the care and control of the homes heretofore mentioned, with authority to employ officers, servants, and managers of said homes, and to purchase all property to be used in said homes, with the right to sell property now used by said homes.

"Respondents deny that relators as circuit judges have any right to control or manage said homes, or to purchase property and supplies therefor, or to sell the property belonging to Jackson county and used by said homes, because the management and control of all of the property of Jackson county is vested by authority of law in these respondents as judges of the county court of Jackson county, Mo. * * *

"Respondents further state that sections 13808 to 13814, inclusive, R. S. of Mo. 1919, and the Session Laws of Missouri 1921, at page 543, in so far as they attempt to confer the power claimed upon the relators, are unconstitutional and void because they contravene and violate article 3 of the Constitution of Missouri by allowing the judicial department to usurp the functions of the executive or the administrative branch of the government; that said acts are void and unconstitutional and in violation of section 28 of article 4 of the Constitution of Missouri, in that said acts contain more than one subject, and there is no clear expression of such subjects, in the titles of such acts.

"Respondents further state that said acts are void and unconstitutional as violating subsection 20, section 53, of article 4 of the Constitution of Missouri.

"Respondents further state that said acts are void and unconstitutional as violating subsection 15 of section 53 of article 4 of the Constitution of Missouri.

"Respondents further state that said acts are void and unconstitutional as violating subsection 32 of section 53 of article 4 of the Constitution of Missouri.

"Respondents further state that said acts are void and unconstitutional as violating section 10, article 10, of the Constitution of Missouri.

"Respondents further state that said acts are void and unconstitutional as conferring non-judicial power upon the judiciary.

"Responde...