State v. Roach

• Decision Date: 10 February 1914
• Citation: 165 S.W. 703,256 Mo. 669
• Parties: STATE ex rel. PUBLIC SERVICE COMMISSION v. ROACH, Secretary of State.
• Court: Missouri Supreme Court

165 S.W. 703

256 Mo. 669

STATE ex rel. PUBLIC SERVICE COMMISSION v. ROACH, Secretary of State.

Supreme Court of Missouri.

February 10, 1914.

Rehearing Denied April 2, 1914.

1. STATES (§ 55)—PUBLIC SERVICE COMMISSION—RIGHT TO STATE LAWS.

Rev. St. 1909, § 8096, requires the secretary of state to distribute copies of the Revised Statutes printed "to the head of each state department, bureau, or institution, judges of the Supreme Court and Courts of Appeal, the judges of the circuit and state criminal courts, the members of the General Assembly, * * * he shall deliver each one a copy," and section 8069 requires him to deliver printed copies of the laws of the General Assembly "to the head of each state department, bureau and institution, including each judge of the Supreme Court, one copy." Laws 1913, pp. 557-651, creating the Public Service Commission, gives to it numerous powers, including those formerly possessed by the Board of Railroad and Warehouse Commissioners, and confers many of the powers upon each of the five members of the Commission acting separately, provided they report the same to the Commission for final action. Held, that each member of the Public Service Commission was entitled to one copy of the Revised Statutes and Session Laws, entitling the board, as a whole, to five copies thereof.

2. STATES (§ 67)—STATE BOARDS — PUBLIC SERVICE COMMISSION—SESSIONS.

Each and all of the members of the Public Service Commission may hold separate sessions in several parts of the state at the same time.

3. STATES (§ 55)—STATE BOARD — PUBLIC SERVICE COMMISSION—RIGHT TO STATIONERY.

Laws 1913, creating the Public Service Commission, page 563, § 11, provides that all stationery needed for the use of the Commission shall be paid for in the same manner as other expenses, and section 15 provides that all expenses of the Commission shall be paid for from the fund provided for by the act, and section 41, at page 18, appropriates $150,000 to pay the contingent expenses of the Commission, including printing and office supplies. Held, that the Commission was required to pay for its stationery out of its own funds, and the secretary of state could not be required to pay therefor, or to furnish the Commission with stationery, notwithstanding that the act provided that, whenever the words "railroad and warehouse commissioners" appeared in the state laws, the words "public service commission" should be substituted therefor, since, after the former commission was abolished, it was not necessary for the Legislature to make an appropriation to pay for its stationery, so that the Public Service Commission would not be substituted to any rights of such commission in that respect.

In Banc. Mandamus by the State, on relation of the Public Service Commission, against Cornelius Roach, Secretary of State. Writ granted as to part of the relief prayed, and denied as to the remainder.

This is an original proceeding instituted in this court by the relator against the respondent, asking for a writ of mandamus requiring the latter to furnish to the former five copies of the Revised Statutes of Missouri of 1909, and five copies each of the Session Acts of the state for the years 1911 and 1913, as well as certain stationery mentioned, for the use of the relator and the five members thereof in its and their official capacity. Upon filing the petition for the writ, respondent waived the issuance of the alternative writ, entered his appearance, and stipulated with respondent, to the effect that the petition might be considered and treated as the alternative writ. Prior to the return day the respondent filed a demurrer to the petition.

From this brief statement of the case it will be seen that this is a friendly suit growing out of an honest difference in opinion among public officers as to what are the rights and duties of the respective parties in the premises. The case having assumed this aspect, it becomes necessary to set out the petition and demurrer thereto, in order to intelligently present the legal propositions involved. With formal parts omitted, they are as follows:

"Your petitioner herein respectfully represents:

"That the Public Service Commission of the state of Missouri was created by the Public Service Commission Act, which was duly enacted by the Legislature of the state of Missouri, and which came into full force and effect as the law of said state on the 15th day of April, 1913. That the Public Service Commission, as created by said law, consists of five commissioners, and that, in accordance with the terms and provisions of said law, the Governor of the state of Missouri has heretofore appointed as commissioners John M. Atkinson, commissioner and chairman of said Commission, and the following commissioners: John Kennish, H. B. Shaw, Wm. F. Woerner and Frank A. Wightman. That on the ______ day of July, 1913, and at all times hereinafter mentioned, each of said commissioners had taken the oath of office as prescribed by law, and had duly qualified, entered into the discharge of his duties as prescribed by law, and have continued so to do, and are now engaged in the discharge of the duties of commissioners of the Public Service Commission. That the said commissioners constitute the Public Service Commission of the state of Missouri, and are public officers of the said state. That it is the duty of said Public Service Commission, and of each of the commissioners thereof, to administer, construe, and enforce the laws of this state governing the rates, service, the issue of bonds and stock, etc., by common carriers, gas, electrical, and telephone companies, etc., which are engaged in serving the public in said state, and that it is the duty of the said Commission, and of each commissioner, to investigate, construe, and enforce the laws of the state in the foregoing particulars.

"That on and prior to the said _____ day of July, 1913, and at all times hereinafter mentioned, Cornelius Roach was the duly elected, qualified, and acting secretary of state within and for the state of Missouri. That, as such, and by virtue of the law of said state, he was the custodian of the printed copies of the public statutes of the state of Missouri, including the Revised Statutes of said state for the year 1909, contained in three volumes, numbered 1, 2, and 3, and the acts of the Legislature of the state of Missouri for the year 1911. That said Cornelius Roach, at the time aforesaid, and now, has in his possession as such custodian a large number of the printed copies of the said Revised Statutes of the state of Missouri for the year 1909, and the acts of the Legislature of the State of Missouri for the year 1911, which were printed and furnished to him by said state. That, under the laws of said state, it is and was the duty of said Roach to furnish and deliver to the Public Service Commission five copies of volumes 1, 2, and 3 of said Revised Statutes of the state of Missouri for the year 1909, and five copies of the acts of the Legislature of the state of Missouri for the year 1911, and five copies of the acts of the Legislature of said state for the year 1913, for the use of each of said commissioners in the discharge of their duties as commissioners aforesaid. That on the _____ day of June, 1913, said Cornelius Roach, as secretary of state, did furnish and deliver to the said Public Service Commission, for the use of said Commission, five copies of the acts of the Legislature of said state for the year 1913, and one copy of volumes 1, 2, and 3 of the Revised Statutes of the state of Missouri for the year 1909, and one copy of the acts of the Legislature of the state of Missouri for the year 1911, for the use of said commissioners. That on the _____ day of July, 1913, the Public Service Commission did demand and request, in writing—which demand is herewith filed, marked Exhibit A—that said Roach furnish and deliver to said Commission four copies of volumes 1, 2, and 3 of the Revised Statutes of the state of Missouri for the year 1909, and four copies of the acts of the Legislature of the state of Missouri for the year 1911, for the necessary use of the said commissioners and of the Public Service Commission in the discharge of their duties. That said demand in writing was delivered to the said Cornelius Roach, as secretary of state, on said _____ day of July, 1913. That the said Cornelius Roach did then and there wrongfully refuse, and still wrongfully refuses, to deliver to the Public Service Commission four copies of the Revised Statutes for the year 1909, and four copies of the acts of the Legislature of the state of Missouri for the year 1911, as so requested, or any part or portion thereof, notwithstanding that he had theretofore been advised that he could lawfully so do by the Attorney General of the state of Missouri.

"That on said _____ day of July, 1913, the said Cornelius Roach, as secretary of state, was the custodian and had under his control and possession stationery for the use of the said Public Service Commission, for which payment had been provided for in section 27 of an act passed by the Legislature of said state and approved by the Governor thereof on the 23d day of April, 1913, which act appropriated from the treasury of said state, chargeable to the revenue fund thereof for the years 1913 and 1914, the sum of twelve thousand dollars ($12,000) for stationery for the offices of the Railroad and Warehouse Commissioners and other public officers of said state. That many years prior to April 15, 1913, the state of Missouri had authorized and established a Board of Railroad and Warehouse Commissioners, which consisted of three members. That said board...