State v. Seibert

• Decision Date: 25 June 1894
• Parties: STATE ex rel. CITY OF ST. LOUIS v. SEIBERT, State Auditor.
• Court: Missouri Supreme Court

27 S.W. 624

STATE ex rel. CITY OF ST. LOUIS v. SEIBERT, State Auditor.

Supreme Court of Missouri.

June 25, 1894.

In banc.

Petition by the city of St. Louis by writ of mandamus to compel James M. Seibert, as state auditor, to draw certain warrants in favor of such city. The writ was granted by division No. 1. 24 S. W. 750. The opinion in division was adopted by the court in banc; SHERWOOD, GANTT and BURGESS, JJ., dissenting.

The alternative writ of mandamus issued in this cause required the state auditor, against whom the writ ran, to show cause why he should not draw certain warrants on the state treasurer for certain sums due monthly under the provisions of section 8 of an act entitled "An act to appropriate money for the support of the indigent insane in the asylum at St. Louis for the years 1893 and 1894," approved April 1, 1893. The section in question is the following: "For the support of the indigent insane in the insane asylum of the city of St. Louis, who belong to the state outside of the city of St. Louis, fifty thousand dollars, ($50,000) which sum shall be paid upon the requisition of the treasurer, endorsed by the mayor of the city of St. Louis and approved by the governor, in equal monthly installments." The warrants aforesaid, drawn for the support of the indigent insane outside of the city of St. Louis, were drawn by the city treasurer on the state treasurer, and, in accordance with the section in dispute, were duly indorsed by the mayor of the city of St. Louis, and by the acting governor of the state of Missouri, and presented to the state auditor, who, being thereupon requested to draw his warrants on the state treasurer therefor, refused so to do. These, in practical substance, are the allegations of the alternative writ, to which the state auditor interposed these grounds of demurrer: "(1) Because said alternative writ, and the matters therein set forth, do not state facts sufficient to constitute a cause of action. (2) Because said alternative writ is not sufficient in law to entitle the relator to the relief asked, or to authorize the issuing of said writ of mandamus. (3) Because, under the allegations contained in said writ, relator is not entitled to mandamus, nor to any relief in the premises. (4) Because section 8 of the act of the legislature approved April 1, 1893, referred to in said writ, is invalid, unconstitutional, and void."

W. C. Marshall, for relator. R. F. Walker, Atty. Gen., for respondent.

SHERWOOD, J. (dissenting, after stating the facts).

1. The general grounds of demurrer may be laid out of view, because the whole controversy raised by the pleadings centers on the validity of the section in controversy. Is that section constitutional? In order to determine this question requires a recital and examination of certain provisions of the organic law pertinent to the point at issue. Section 43 of article 4 of the constitution provides that: "All revenue collected and moneys received by the state from any source whatsoever shall go into the treasury, and the general assembly shall have no power to divert the same, or to permit the money to be drawn from the treasury, except in pursuance of regular appropriations made by law. All appropriations of money by the successive general assemblies shall be made in the following order: First. For the payment of all interest upon the bonded debt of the state that may become due during the term for which each general assembly is elected. Second. For the benefit of the sinking fund, which shall not be less annually than two hundred and fifty thousand dollars. Third. For free public school purposes. Fourth. For the payment of the cost of assessing and collecting the revenue. Fifth. For the payment of the civil list. Sixth. For the support of the eleemosynary institutions of the state. Seventh. For the pay of the general assembly, and such other purposes not herein prohibited as it may deem necessary; but no general assembly shall have power to make any appropriation of money for any purpose whatsoever, until the respective sums necessary for the purposes in this section specified have been set apart and appropriated, or to give priority in its action to a succeeding over a preceding item as above enumerated." These provisions limit and set the bounds to legislative appropriation of the state revenues. Such appropriations are to be "regular appropriations made by law." They are to be made for public or state purposes, as such purposes alone are designated in the quoted section.

The maxim, "expressio unius," etc., — Broom, Leg. Max. (6th Ed.) 626, — applies to the construction of constitutions as well as of statutes. Com. v. Williams, 79 Ky. 42; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1, 9 Sup. Ct. 409; Page v. Allen, 58 Pa. St. 338; Cooley, Const. Lim. (6th Ed.) pp. 78, 79, 93, 94; People v. Draper, 15 N. Y. 532. Thus, Thompson, C. J., enunciating this view, said: "In construing the constitution of the state, whatever is not expressly denied to the legislative power is possessed by it. The opposite of this rule, I may remark, is the rule of construction of the federal constitution. I assent to this, but not that the inhibitions of the constitution must be always express. They are equally effective, and not less to be regarded, when they arise by implication, and this is the case when the legislative provision is repugnant to some provision of the constitution. Leib v. Com., 9 Watts, 200; Com. v. Mann, 5 Watts & S. 404; Eakin v. Raub, 12 Serg. & R. 330; Com. v. Maxwell, 27 Pa. St. 444; Chase v. Miller, 41 Pa. St. 403. To illustrate this idea: The executive power of the state, under the constitution, is lodged in a governor; and the legislative, in a senate and house of representatives. It would be manifestly repugnant to these provisions of the constitution if an act of assembly should provide for the election of two executives, or two senates and houses of representatives, at the same election; yet it would be unconstitutional only by implication, there being no express prohibition on the subject. So in regard to qualification for office. An act which should require a residence in the state for ten years, instead of three, or an age of fifty years, or freehold estate, in order to be eligible to the office of representative, would be void for repugnancy, because differing from the qualification expressed in the constitution, and would be so only by necessary implication; necessary to keep legislation within the paramount rules of the constitution. The expression of one thing in the constitution is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions declaratory in their nature. The remark of Lord Bacon, `that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated, expresses a principle of common law applicable to the constitution, which is always to be understood in its plain, untechnical sense. Com. v. Clark, 7 Watts & S. 127." Page v. Allen, 58 Pa. St. 338. An eminent jurist and author says: "Another rule of construction is that, when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. On this ground it has been held by the supreme court of Maryland that, where the constitution defines the qualifications of an officer, it is not in the power of the legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication conferred by the constitution itself. Other cases recognizing the same principle are referred to in the note. * * * We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end, especially when, as has been already said, it is but fair to presume that the people, in their constitution, have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication." Cooley, Const. Lim. (6th Ed.) pp. 78, 79, 93, 94. Touching the same topic, Denio, C. J., says: "But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of restraints upon the legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority, as strong as though a negative was expressed in each instance." People v. Draper, 15 N Y. 532. Hence, under the authorities cited, by inevitable implication the legislature was powerless, because forbidden to appropriate the revenues of the state to a purpose not a public one, — a purpose not named in the appropriations specified in section 43 of the organic law.

2. The maxim "ejusdem generis" is equally applicable to the legal situation here presented. The St....