State v. Thompson

• Decision Date: 10 July 1935
• Citation: 85 S.W.2d 594,337 Mo. 328
• Parties: The State, Appellant, v. Lorenzo D. Thompson and American Surety Company of New York, a Corporation
• Court: Missouri Supreme Court

85 S.W.2d 594

337 Mo. 328

The State, Appellant, v. Lorenzo D. Thompson and American Surety Company of New York, a Corporation

Supreme Court of Missouri

July 10, 1935

Appeal from Cole Circuit Court; Hon. N. G. Sevier, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney General, Frank W. Hayes and James L HornBostel , Assistant Attorneys General, for appellant.

(1) It is the duty of the State Auditor to audit, adjust and settle all accounts against the State, except where the statute places that duty upon others. Sec. 11404, R. S. 1929; Morgan v. Buffington, 21 Mo. 552; State ex rel Suter v. Wilder, 196 Mo. 426. (2) The statute placing the duty upon the Printing Commission to examine into the correctness of printing accounts of the executive departments does not relieve the auditor of the duty to determine to which appropriation the account, approved by the commission as correct, should be charged; nor from the legally drawing of the warrant in payment thereof and charging it to the wrong appropriation. Art. 1, Chap. 115, R. S. 1929; Secs 13799, 13802, R. S. 1929. (3) No printing of any kind or character could be legally charged by the State Auditor to the teachers' training appropriation. Laws 1931, p. 69, sec. 13; Art. 7, Chap. 57, R. S. 1929; Secs. 9403, 9404, 9405, R. S. 1929; Laws 1931, p. 27, sec. 11; Art. 10, Sec. 19, Const. of Mo.; Meyers v. Kansas City, 18 S.W.2d 900; State ex rel. McKinley v. Hackmann, 282 S.W. 1013; State ex rel. v. Hackmann, 264 S.W. 367; State ex rel. v. Gordon, 236 Mo. 158; State v. Henderson, 160 Mo. 213; State ex rel. v. Hackmann, 207 S.W. 65; State v. Holladay, 65 Mo. 76; 36 Cyc., pp. 890, 895. (4) Respondent Thompson, as State Auditor, violated his statutory duties and breached his bond by drawing warrants for printing against the teachers' training appropriation. Knox County v. Hunolt, 110 Mo. 75; Consolidated School Dist. No. 6 v. Shawhan, 273 S.W. 185; Fischer v. Marsh, 202 N.W. 422; State Board of Land Commrs. v. Ririe, 190 P. 59. (5) The teachers' training appropriations having lapsed by operation of law the auditor could not thereafter legally draw and charge any warrants thereto. Sec. 13, p. 69, Laws 1931; State ex rel. McKinley Pub. Co. v. Hackmann, 282 S.W. 1012; State ex rel. McGrath v. Holladay, 65 Mo. 77. (6) The opinion rendered by Attorney General Shartel constitutes no defense to the auditor in drawing the warrants in question. Sec. 11274, R. S. 1929; State ex rel. v. Fendorff, 317 Mo. 586; Dodd v. State, 18 Ind. 56. (7) The approval by the legislative auditing committee of the accounts of the State Auditor is no defense to an action on the auditor's bond. State ex rel. Bell v. United States Fid. & Guar. Co., 236 Mo. 368. (8) The fact that the State Treasurer or any other officer might also be liable does not relieve the State Auditor from liability. Secs. 11404, 13802, R. S. 1929; Morgan v. Buffington, 21 Mo. 552. (9) If any printing could be charged to the teachers' training appropriation only such printing could be charged as was used in carrying into effect the provisions of Article 7, Chapter 57, Revised Statutes 1929, respecting teachers' training. Laws 1931, sec. 13, p. 69; Secs. 9403, 9405, R. S. 1929. (10) The fact that the State Educational Department received and used the items covered by the vouchers in question is no defense in an action against the State Auditor for illegally drawing his warrants. Knox County v. Hunolt, 110 Mo. 75; Consolidated School Dist. v. Shawhan, 273 S.W. 185; Fischer v. Marsh, 202 N.W. 422; State Board of Land Commrs. v. Ririe, 190 P. 59.

T. Speed Mosby for Lorenzo D. Thompson.

Bryan, Williams, Cave & McPheeters for American Surety Company of New York.

(1) The State Auditor acts (1) quasi-judicially, as in State ex rel. Publishing Co. v. Hackmann, 314 Mo. 33; State ex rel. Gehner v. Thompson, 316 Mo. 1169; (2) ministerially, as in State ex rel. McGrath v. Walker, 97 Mo. 162; and (3) clerically, as where the county clerk issues a county warrant on the county treasurer for a claim "audited, adjusted and settled" by the county court. Secs. 12162, 12163, R. S. 1929. (2) Audit means to hear, examine, verify, compare charges with vouchers, adjust, allow or reject, determine. It imports the exercise of judgment. 6 C. J. 846. (a) The usual duties of the State Auditor are to "audit, adjust and settle" claims against the State. Sec. 11404, R. S. 1929. (b) When the duties of the State Auditor are required expressly to be performed by "other officers or persons," then they must do all he could do if the duty were his. (3) It was not the duty of the State Auditor to "audit, adjust and settle" the printing bills in question. That was the duty of the Commissioners of Public Printing. "They shall audit all accounts for printing and binding executed under the provisions of this chapter." Sec. 13799, R. S. 1929. "They shall examine, compare with vouchers, correct, adjust and endorse all printing accounts." Sec. 13802, R. S. 1929. (4) The drawing of the warrants by the State Auditor for the payment of the printing bills in question was mandatory and clerical. He "shall draw a warrant upon the treasury for the amounts thereof payable out of any moneys appropriated for that purpose." Sec. 13802, R. S. 1929. (5) The opinion of the Attorney General justified the Commissioners of Public Printing in auditing the printing bills in question and aided them in the exercise of their judgment. State ex rel. v. Williams, 232 Mo. 71. (6) The settlement by the legislative committee of the accounts of the State Auditor, the report thereof to each house of the General Assembly, the approval of the vouchers for the warrants and the cancellation of said vouchers by the said legislative committee constituted a settlement and is binding on the State in the absence of fraud, collusion or mistake of fact. State ex rel. v. Shipman, 125 Mo. 438; State ex rel. v. Ewing, 116 Mo. 137; Holt v. Rea, 330 Mo. 1241; State ex rel. v. Hawkins, 169 Mo. 619; Corbin v. Adair County, 171 Mo. 389; Scott County v. Leftwich, 145 Mo. 34; Hethcock v. Crawford County, 200 Mo. 177; Dameron v. Hamilton, 264 Mo. 121; Callaway County v. Henderson, 139 Mo. 520; State ex rel. v. Fidelity & Guaranty Co., 236 Mo. 369; People v. Buchanan, 52 S.W. 480; Secs. 9405, 13799, 13802, R. S. 1929; Art. 7, Chap. 57, R. S. 1929.

OPINION

Hays, J.

This is an action brought by the State against Lorenzo D. Thompson, former State Auditor, and the surety on his official bond. The petition is in three counts, the formal allegations of all of which are identical, and charges (1) it was the duty of the State Auditor "to adjust and settle all claims against the State payable out of the State Treasury, except such claims as were expressly required by law to be audited and settled by other officers or persons" and to draw all warrants upon the State Treasury for money, except as otherwise provided by law, and to express in the body of every warrant, drawn by him upon the State Treasury, the particular fund appropriated by law out of which the same was to be paid; (2) that in 1931 the Legislature appropriated $ 225,000 to carry into effect the provisions of Article VII, Chapter 57, Revised Statutes 1929, respecting teacher training courses in high schools, and it was the duty of the defendant as auditor "to audit, adjust and settle" all claims payable out of said appropriation, and that in his official capacity as State Auditor the defendant did "audit, adjust and settle" three claims in favor of Botz Printing & Stationery Company, the first (first count) on October 6, 1931, for $ 4,520.52, the second (second count) on the 7th of November, 1931, for $ 617.29, and the third (third count) on the 1st of December, 1932, for $ 26,847.88; (3) that the claims for which the vouchers were issued arose out of printing bills which "had no connection with the teacher training courses in high schools; that the printing was not used in teacher training courses in high schools and was not included within the purposes for which the said appropriation was made and was not properly chargeable thereto;" (4) that the defendant auditor in auditing these claims and in issuing the warrants against this appropriation withdrew funds not appropriated for the payment of these warrants and thereby breached his bond.

The answers of the defendants admit Mr. Thompson was State Auditor on the dates alleged, and admit the execution and existence of the bond, and deny all other allegations.

The answers then set up two special pleas in bar. The first of these tendered the issue that upon requisitions of the State Superintendent of Education, made upon and approved by the Commissioners of Public Printing, in whose power it lay to determine the quantity and character of the matter and material of the printing under their supervision, the commissioners determined the same; that upon completion of the work they examined, corrected, adjusted, audited and endorsed the accounts therefor, for presentation to the auditor for his drawing of warrants upon the treasury for the amounts thereof, payable out of any moneys appropriated for that purpose; that all the requirements of said Chapter 115, Revised Statutes 1929, were observed and complied with, and that said audit as made by the commissioners was their own, not the auditor's, and was final and conclusive, the statute declaring that upon the making of such endorsement and presentation the auditor shall draw his warrant.

The other plea in bar was based upon an alleged settlement of the accounts of respondent Thompson as out-going auditor made by a committee provided for by the Legislature and appointed by the Governor to inquire into the use and expenditure of State funds as intended by the...