The State ex rel. McKinley Publishing Company v. Hackmann

• Citation: 282 S.W. 1007,314 Mo. 33
• Decision Date: 09 April 1926
• Docket Number: 26062
• Parties: THE STATE ex rel. McKINLEY PUBLISHING COMPANY v. GEORGE E. HACKMANN, State Auditor
• Court: Missouri Supreme Court

282 S.W. 1007

314 Mo. 33

THE STATE ex rel. McKINLEY PUBLISHING COMPANY v. GEORGE E. HACKMANN, State Auditor

No. 26062

Supreme Court of Missouri

April 9, 1926

Alternative writ discharged.

L N. Wylder, Lue C. Lozier and John T. Barker for relator.

(1) The State Highway Department may purchase its printing and supplies wherever it sees fit. It is not under the provisions of the "state printing contract." Sec. 44A, Art IV, Constitution of Missouri; State ex rel. v Wilder, 199 Mo. 488; Laws 1923, sec. 57, p. 28; sec. 95, p. 40; sec. 102, p. 42. (2) The relator was not required to submit his account to the State Printing Commission, because the Highway Department is not under the "state printing contract." State ex rel. v. Wilder, 199 Mo. 484; Sec. 57, Laws 1923, p. 28.

Robert W. Otto, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent; Wilfley, Williams, McIntyre & Nelson of counsel.

(1) Printing and stationery used by the State Highway Commission must be purchased in compliance with and under the provisions of Chap. 89, R. S. 1919, and amendments thereto. Secs. 9697, 9698, 9699, as amended by Laws 1921, pp. 568, 9714 and 9721, R. S. 1919. (2) The case of State ex rel. v. Wilder, 199 Mo. 470, is not controlling in the case at bar because the statutory law which was there construed and which formed the basis for said decision was subsequently amended by the Legislature. Laws 1919, p. 617; Sec. 9714, R. S. 1919. (Compare above section with Sec. 9028, R. S. 1899, which was the statute in effect when the Wilder case was decided). (3) Sec. 10893, R. S. 1919, upon which relator so strongly relies, has been repealed. Laws 1921 (1st Ex. Sess.) p. 132. (4) The State Auditor is expressly prohibited from approving or paying accounts for such printing unless said printing is ordered and the work thereof rendered in accordance with the provisions of said Chapter 89. Sec. 9714, R. S. 1919. (5) Section 44a of Article IV of the Constitution does not provide that the cost of maintaining the State Highway Commission shall be paid out of motor vehicle tax without legislative sanction by way of an appropriation act. It is only the balance left after the cost of maintenance is deducted that is to be spent in paying principal and interest on bonds without legislative action. Laws 1921 (1st Ex. Sess.) p. 196. (6) No money shall be paid out of the Treasury of the State except in pursuance of an appropriation by law. Sec. 19, Art. 10, Mo. Constitution. (7) There has been no appropriation by the General Assembly for the payment of relator's bill for printing because the Appropriation Act of 1923 expressly provides that all printing for which appropriation is made shall be printing done under the direction of and by the authority of the State Printing Commission. Laws 1923, p. 75, sec. 261. (8) Neither could there be a valid law appropriating money of the State to pay relator's bill, because the Constitution expressly prohibits the General Assembly from authorizing the payment of any claim against the State under any agreement or contract made without express authority of law. Sec. 48, Art. IV, Mo. Constitution. (9) Any agreement or contract between the State Highway Commission and relator for the supplying of the printing and stationery described in relator's petition was made without express authority of law, and is therefore under the express language of the Constitution, null and void. Sec. 48, Art. IV, Mo. Constitution.

Walker, J. Blair, C. J., Graves, Ragland and White, JJ., concur; Atwood, J., dissents; Otto, J., not sitting.

OPINION

WALKER

This is an original proceeding in mandamus to compel the respondent, the State Auditor, to issue a warrant upon the State Treasury to pay for certain printing and stationery alleged by the relator to have been furnished to the State Highway Commission.

Respondent filed a return to the alternative writ, and the relator moved for a judgment on the pleadings. This motion admitted directly or impliedly all of the well-pleaded facts in the return and left for consideration only issues of law.

In 1870, (Laws 1870, p. 79) the office of Public Printer was abolished and three state offices, to-wit, the Secretary of State, State Auditor and Register of Lands, were declared to be ex officio Commissioners of Public Printing and their duties were prescribed and their powers defined. Except in the charges allowed for composition (Laws 1873, p. 57), and the classification of the matter to be printed (Laws 1883, p. 126), and designating the place where the printing was to be done (Laws 1885, p. 219), the body of the law remained the same as originally enacted and was so incorporated in the revision of 1889 (Chap. 145, R. S. 1889). In 1891 (Laws 1891, p. 189) Section 7367, Revised Statutes 1889, was repealed and a new section enacted in which the duty of the Secretary of State was more fully and definitely defined in regard to the custody and furnishing of stationery required to be used by the contractor in the printing required to be done by him for the executive departments of the State.

In 1893 (Laws 1893, p. 215), the office of the Register of Lands having been abolished, the State Treasurer was made a member of the Board of Printing Commissioners.

At the revising session in 1899, Sections 7359 and 7360, Revised Statutes 1889, were amended in regard to the duties of the Secretary of State and the contractor concerning the printing required to be done for the General Assembly. These amendments are not material to this issue. In other respects the revised bill on public printing, as it appears in the Revised Statutes of 1899, is the same as former statutes on this subject. The statute as thus enacted was carried forward without revision into the Revised Statutes of 1909 (Chap. 99, R. S. 1909). In 1919 (Laws 1919, p. 617), Section 10356 (Chap. 99, R. S. 1909), now Section 9714, was repealed and a new section enacted, which more clearly defines what is meant in this statute by the "executive departments of the State."

Aside from this amendment and one enacted in 1921 (Laws 1921, p. 568), concerning the terms of letting the contract for public printing, the statute of 1919, is the same as that of the preceding revision.

In addition to the foregoing epitome of the legislation on this subject, a resume of the relevant portions of the statute as it now exists is not inappropriate, not only as an aid in its interpretation, but as more clearly defining the reasons for the same.

This statute designated as "Public Printing" is embodied in Sections 9697-9721, Chapter 89, of the present revision.

Section 9697 designates the State officers who shall ex officio, during their respective terms, constitute the Commissioners of Public Printing.

Section 9698 divides the state printing into three classes; and provides that all of the printing for the executive departments (except pamphlets) shall constitute the third class.

Section 9699, as amended (Laws 1921, p. 568), provides that the Commissioners of Public Printing shall at stated intervals enter into two-year contracts with responsible persons for supplying the state printing; that the contracts for different classes of printing shall be made separately and may be entered into with different persons for different classes of printing; and that the successful bidders shall execute bonds to the State for the faithful performance of said contracts.

Section 9714 provides that: "Commissioners of printing shall examine the proof sheets of all work executed under the provisions of this chapter, and see that they are correctly printed, and that all such work is executed in a suitable manner and in accordance with the requirements of this chapter. Said commissioners shall keep an accurate account of all papers delivered to the public printer or printers, and see that it is used properly and without unnecessary waste. All work to be executed for the executive departments shall be ordered through the Commissioners of Public Printing, and a requisition shall be obtained in advance signed by the head of the department ordering such work and said requisition shall be approved by the Commissioners of Public Printing in the same manner as that provided in Section 9717 of this law respecting the examination of accounts. Executive departments shall in this and other sections of this chapter be construed to mean both the heads of said departments and the subordinate branches thereof, the boards, commissions, bureaus and officers appointed by the heads of said departments, except the boards of educational and eleemosynary institutions of the State. It shall be the duty of the commissioners to see that the full number of copies of each job is received from the printer and delivered to the proper department. No accounts shall be considered or approved by them or paid by the State Auditor unless the work for which it is rendered is done in accordance with the requisition obtained in advance and approved as herein provided, and if when the final copies are delivered they be less than the number called for in the requisition, the commissioners shall pay only for the actual number of copies delivered, and no account for composition shall be rendered or approved until the requisition for the order is returned to the commissioners and thereafter no charge for composition shall be made on that order. The Commissioners of Public Printing shall have the power to determine the number of copies and number of pages of subject material in each document printed under their supervision. They shall audit all accounts for printing and binding executed under the provisions of this chapter, and they shall keep a record of the cost of printing and binding, the amount...