State v. Thompson

• Decision Date: 10 July 1935
• Docket Number: No. 34118.,34118.
• Citation: 85 S.W.2d 594
• Parties: STATE v. THOMPSON et al.
• Court: Missouri Supreme Court

85 S.W.2d 594

STATE v. THOMPSON et al.

No. 34118.

Supreme Court of Missouri.

July 10, 1935.

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

Action by the State against Lorenzo D. Thompson and the American Surety Company of New York. Judgment for defendants, and plaintiff appeals.

Reversed and remanded with directions.

Roy McKittrick, Atty. Gen., and Frank W. Hayes and James L. Hornbostel, Asst. Attys. Gen., for the State.

T. Speed Mosby, of Jefferson City, for respondent Lorenzo D. Thompson.

Bryan, Williams, Cave & McPheeters, of St. Louis, for respondent American Surety Co. of New York.

HAYS, Judge.

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 7, chapter 57, R. S. 1929 (Mo. St. Ann. art. 7, c. 57, § 9399 et seq., p. 7223 et seq.), respecting teachers' 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 indorsed 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, R. S. 1929 (Mo. St. Ann. c. 115, § 13782 et seq., p. 7776 et seq.), 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 indorsement 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 outgoing 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 Legislature which appropriated them.

The reply generally denied the facts set up in the pleas in bar.

The bond was duly executed January 15, 1931, to the state by the auditor as principal and the American Surety Company of New York as surety in the sum of $50,000. The condition of the bond was that the respondent Lorenzo D. Thompson would faithfully perform all the duties required or which might be required of him by law, whether as state auditor or in any capacity in which he would be required to act ex officio by virtue of being state auditor. It was approved in the manner required by law, and was in full force and effect at all times covered by the transactions involved in this suit. The case was tried to the court without a jury, the trial resulting in a finding and judgment for the defendants on all three counts of the petition, and from the judgment the state appealed.

The evidence discloses that Mr. Charles A. Lee, superintendent of education, made requisitions upon the commissioners of public printing for the several and separate printing requirements of his department to be done by Botz Printing & Stationery Company, which had the contract for printing work for the executive departments of the state government. These requisitions designated the work to be done; the fund or appropriation from which the printing was to be paid; the dates, the character, and the quantity of printing required. These requisitions were submitted to the commissioners of public printing who gave the orders to the printing company for the work. The printing was all done by the contractor and delivered at the contract prices. Upon delivery, the accounts with the respective amounts due on each, and each account carrying references to the fund or money — such as state school money, teachers' training fund, superintendent schools' printing — from which the same would be paid, were approved in writing by all the commissioners of public printing. Thereupon the auditor drew three warrants on the state treasurer dated, respectively, October 6, 1931, November 7, 1931, and December 1, 1932, in the respective sums stated in the petition, and each payable to the Botz Printing & Stationery Company "out of any money appropriated for" "state school moneys T. T. course," "state school moneys teacher training course," "state school moneys teacher training," respectively. These warrants were paid by the state treasurer to the payee.

The Legislature in 1931 (Laws 1931, p. 69, § 13) appropriated out of the state treasury, chargeable to that part of the state revenue set apart for the support of free public schools of Missouri for the fiscal years beginning July 1, 1930, and ending June 30, 1932, the sum of $225,000 for carrying into effect the provisions of article 7, chapter 57, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 9399 et seq., p. 7223 et seq.), respecting teachers' training in high schools.

In the trial it was shown in the evidence introduced by appellant that all the items of printing contained in Exhibits A and B, upon which counts 1 and 2, respectively, of the petition were bottomed, were necessary and used in teachers' training instruction. Evidence was introduced by the appellant pertaining to the items contained in Exhibit C, the basis of the third count. The controverted evidential matters relate to count 3 alone.

Mr. Kitch, supervisor of the teacher training work in high schools, gave testimony touching the various items contained in printing bill C and pointed out many of them which he said were not incidental to or used in teacher training class or instructional work. Appellant contends that the testimony of this witness shows that the items so pointed out amounted to $21,877.26. Superintendent Lee, testifying on behalf of respondents, was interrogated on the same items in detail. He testified specifically thereon and said in summation that he divided his work into two branches, instruction and administration; that for the most part the items contained in Exhibit C were necessary and used as part of the teacher training work. He also said that "we did not print a thing but what the statute required us to print. The department has no discretion and we have to print them, and the fact that it was so high is because it had not been modified for several years; when you change them it makes a large bill." Mr. Lee's testimony, in its entirety, furnished substantial evidence that all said items were used in, and were necessary as a part of, the teacher training work, excepting certain items which he designated and which aggregated $4,093.31. The same is admitted in the brief of respondents wherein the items forming this amount are set out.

The first contention of the appellant is (a) that whether or not any printing could be charged to the teacher training appropriation was purely a question of law to be determined by the court, as was declared in an instruction offered by appellant and refused by the trial judge; and (b) if that point be not tenable, then upon the preponderance of the evidence appellant was entitled to a favorable verdict or finding for the amount shown not to have been used in furtherance of teacher training instruction, as was declared in another instruction offered by the appellant and refused by the court, or, as is contended in this court, for at least the admitted sum of $4,093.31.

Concerning these propositions, we observe that it is elementary law that it is not the function of this court on appeal to pass upon the preponderance of the evidence. The immediate question is whether the evidence in support of the finding below is substantial in its nature. We are of the opinion it was substantial and that it raised a question of fact, introduced at the instance of appellant and over the objections of the respondents.

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