The State ex rel. Buckner v. McElroy

• Decision Date: 18 July 1925
• Docket Number: 25249
• Citation: 274 S.W. 749,309 Mo. 595
• Parties: THE STATE ex rel. THOMAS B. BUCKNER et al. v. HENRY F. McELROY et al
• Court: Missouri Supreme Court

274 S.W. 749

309 Mo. 595

THE STATE ex rel. THOMAS B. BUCKNER et al. v. HENRY F. McELROY et al

No. 25249

Supreme Court of Missouri

July 18, 1925

Peremptory writ denied.

H S. Conrad, T. J. Seehorn, A. L. Cooper and Wallace Sutherland for relators.

(1) By law, it is the duty of relators to manage the children's homes, and to purchase supplies therefor, without restraint by respondents; and it is the duty of respondents to order payment for such supplies so purchased. Secs. 13808 to 13814 R. S. 1919; Laws 1921, p. 543. (2) Respondents refused to pay bills for purchases of supplies for the Children's Homes made by relators; and at the time of said refusal, and at all times since, there have been sufficient funds with which respondents could have made payment thereof. Secs. 9537 and 9539, R. S. 1919; State ex rel. Clarke Co. v Hackmann, 280 Mo. 686, 696; State ex rel. v. Johnson, 162 Mo. 629; Book v. Earl, 87 Mo. 246. (3) The statutes describing relators' duties are not violative of Section 10 of Article 10 of the Constitution of Missouri. (a) Upon principle and authority, it is well settled that the acts of the Legislature are presumed to be constitutional until the contrary is clearly shown; and it is only when they manifestly infringe on some provision of the Constitution that they can be declared void. County Court v. Griswald, 58 Mo. 192. (b) The legislature is the sole judge as to the expediency of making police regulations that are not prohibited by the Constitution. County Court v. Griswald, 58 Mo. 194; Young v. Kansas City, 152 Mo. 666; Hamilton v. St. Louis County Court, 15 Mo. 28. (c) The Legislature has as much control over the revenues of the counties as it has over those of the State, unless restrained by some provision of the Constitution. State ex rel. v. Holliday, 70 Mo. 138; Hamilton v. St. Louis County, 15 Mo. 18; State ex rel. v. St. Louis County Court, 34 Mo. 570. (4) The act creating the Board of Paroles is not open to the objection that it contains more than one subject, and is not violative of Section 28 of Article 4 of the Constitution of Missouri. State v. Doering, 194 Mo. 408; Cox v. Ry. Co., 174 Mo. 602; State ex inf. v. Delmer Jockey Club, 200 Mo. 56. (5) The statutes prescribing relators' duties are not violative of Article 3 of the Constitution of Missouri. State ex rel. v. Higgins, 125 Mo. 364; State ex rel. Birmingham v. Ry. Co., 274 Mo. 140. (6) The act prescribing relators' duties is not a local or special law and is not violative of sub-section 2 (20) of Section 53 of Article 4 of the Constitution of Missouri, or of sub-section 15 thereof, or of sub-section 32 thereof. Dunne v. Cable Ry. Co., 131 Mo. 1, 5; State ex inf. Crow v. Flemming, 147 Mo. 1, 12; State ex rel. v. Speed, 183 Mo. 186; State v. Keating, 202 Mo. 197, 209; State ex inf. v. Southern, 265 Mo. 275. (7) Mandamus is the proper remedy to compel the County Court to pay bills necessarily contracted by the Parole Board for the maintenance of homes for delinquent and neglected children. Boone v. Todd, 3 Mo. 140; State ex rel. Industrial Home for Girls v. Pike County, 144 Mo. 275; State ex rel. v. Mason, 153 Mo. 23, 56; State ex rel. Baker v. Fraker, 166 Mo. 130; State ex rel. v. Cavendish, 94 S. E. (W. Va.) 149; State ex rel. Guyton v. Groom, 37 So. 303. Mandamus is the proper remedy to require the County Court to set aside an illegal order made in violation of a plain statutory provision. State ex rel. Wear v. Francis, 95 Mo. 44; State ex rel. Wolfe v. Bronson, 115 Mo. 271; State ex rel. v. School Board, 131 Mo. 505, 514; State ex rel. v. Railroad, 206 Mo. 251, 258; State ex rel. Barnes v. Board of Supervisors, 144 N.W. 883.

Ralph S. Latshaw and John T. Barker for respondents.

(1) The control and management of all property belonging to the county is vested in the county court. The attempt to place the same under the control of the circuit court is void. Sec. 36, Art. VI, Constitution of Missouri; Sec. 2574, R. S. 1919; Dist. v. Higby, 149 S.W. 381; Frost v. Cherry, 122 Pa. St. 426; Fragley v. Phelan, 126 Cal. 388; Co. v. Green, 22 Fla. 102; Russell v. Court, 75 Ore. 168; 15 C. J. 456, 536. (2) Non-judicial duties cannot be conferred upon the judiciary. The attempt to place the control and management of the county property in the circuit court is void. The appointment of employees is an executive duty and cannot be conferred upon the judiciary. State ex inf. v. Washburn, 167 Mo. 696; State ex rel. v. St. Louis, 216 Mo. 96; State ex rel. v. Gordon, 236 Mo. 169; State ex rel. v. Wright, 251 Mo. 339; State ex rel. v. Neble, 19 L. R. A. (N. S.) 578, 107 N.W. 723; State ex rel. v. Brill, 100 Minn. 499; In re Elec. Suprs., 114 Mass. 247, 19 Am. Rep. 341; Ashley v. Wait, 8 A. L. R. 1468, 228 Mass. 63; State v. Young, 29 Minn. 474; Houseman v. Kent, 58 Mich. 364; Schwarz v. Dover, 68 N. J. L. 576; State v. Barker, 116 Iowa 96, 57 L. R. A. 244; County v. Mitchell, 97 Md. 330; People v. Sanderson, 30 Cal. 160; Moreau v. County, 68 N. J. L. 480; Beasley v. Ridout, 94 Md. 641. (3) This act violates Section 28 of Article IV of the Constitution of Missouri in that the same contains more than one subject. Nalley v. Co., 250 Mo. 471; State ex inf. v. Borden, 164 Mo. 236; Williams v. Railroad, 233 Mo. 676; Ex parte Loving, 178 Mo. 204; State v. Doerring, 194 Mo. 398; State v. Crites, 277 Mo. 199; State ex rel. v. Gordon, 233 Mo. 383.

H. S. Conrad, T. J. Seehorn, A. L. Cooper and Wallace Sutherland for relators in reply.

(1) The Parole Board Act cannot be held violative of the constitutional provision that the county court shall have jurisdiction to transact all county and such other business as may be prescribed by law, because: (a) A constitutional question cannot be injected into the case for the first time by argument or brief of counsel. Miller v. Connor, 250 Mo. 677, 684. (b) Even if the question had been raised in the pleadings, it would have to be determined against the respondents, because by the express terms of Section 36, Article VI, county courts are denied any rights except those that are expressly conferred. State ex rel. v. Patterson, 229 Mo. 391; Bayless v. Gibbs, 251 Mo. 492, 506. (2) The Parole Board Act is not violative of Article III of the Constitution on account of conferring non-judicial powers upon the judiciary. State ex rel. v. Higgins, 125 Mo. 368; Birmingham Drainage District v. Ry. Co., 274 Mo. 140; Sec. 2552, R. S. 1919; Gammon v. Lafayette County, 79 Mo. 223; Sayler v. Nodaway County, 159 Mo. 520; Motley v. Pike County, 233 Mo. 42; County of Boone v. Todd, 3 Mo. 140; State ex rel. Baker v. Fraker, 166 Mo. 130.

Graves, J. All concur, except Atwood, J., not sitting.

OPINION

GRAVES

Original action in mandamus. Relators are the duly elected and acting circuit judges of Jackson County Missouri. Respondents are two of the county judges of said county. Relators among other things say:

"1. Relators are the judges of the Circuit Court of the Sixteenth Judicial Circuit, composed of Jackson County, Missouri alone, wherein there is located a city having, according to the last preceding national census, not less than 300,000 and not more than 600,000 inhabitants, and relators are and were at all the times herein referred to the members of and composed the Board of Paroles of said county; and respondents are and were at all of said times the judges of the county court of said county.

"2. For several years last past, and now, there have been and are located and maintained in said county sundry public institutions for the detention, care and education of delinquent and dependent children, known as Parental Schools, viz., the McCune Parental School for Boys (commonly known and hereinafter referred to as the McCune Home), the Jackson County Parental School for Girls (commonly known and hereinafter referred to as Girl's Home), and the Detention Home, all of which are, and have been for several years last past, under the exclusive government, regulation, control and management of said Board of Paroles in the exercise of the power, authority and duty conferred upon said board by the laws of the State of Missouri appertaining thereto.

"3. There are now living in and domiciled at said institutions several hundreds of children, many of whom are of tender age, the boys being located at the McCune Home, the girls at the Girl's Home, and both boys and girls at the Detention Home, all of whom are constantly, from day to day, in imperative need of warm and serviceable clothing, nutritious food, beds, bedding, medicines and such other necessities of life as are essential to their health, reasonable comfort, education and general well-being and, as well, of books, school equipment and other personal property necessary for their care, maintenance and education, and to their consequent development as useful, self-supporting and law-abiding citizens, as designed and contemplated in the establishment of said institutions as public agencies and charities.

"4. It is the duty of respondents as such judges of the county court to pay the expenses contracted and incurred by said Board of Paroles in the conduct, operation, government management and maintenance of said institutions, including all expenses deemed by the said Board of Paroles to be necessary and proper, when duly certified by said Board of Paroles to the county court of said county -- notwithstanding which and although funds are available therefor, the respondents have failed and refused to observe their said duty, but, on the contrary, with the design and purpose of usurping and arrogating to themselves the rights, powers and duties of said board and of relators as members thereof, and to hinder, interfere with and prevent the exercise, by said board and relators, of their lawful...