The State ex rel. Bradshaw v. Hackmann

• Decision Date: 25 January 1919
• Citation: 208 S.W. 445,276 Mo. 600
• Parties: THE STATE ex rel. JAMES T. BRADSHAW, Warehouse Commissioner, v. GEORGE E. HACKMANN, State Auditor
• Court: Missouri Supreme Court

208 S.W. 445

276 Mo. 600

THE STATE ex rel. JAMES T. BRADSHAW, Warehouse Commissioner, v. GEORGE E. HACKMANN, State Auditor

Supreme Court of Missouri

January 25, 1919

Writ quashed.

Frank W. McAllister, Attorney-General, Shrader P. Howell, Assistant Attorney-General for respondent.

(1) The demurrer filed by respondent does not admit relator's conclusions of law as set out in the petition, but only the facts well pleaded. State ex rel. Lamkin v Hackmann, 204 S.W. 514; Paving Company v Fleming, 251 Mo. 222. (2) Neither the statute creating the office, nor the act making the appropriation for the State Warehouse Department designates, or suggests, any duties to be performed outside of the the State, and therefore expenses incurred in traveling beyond the limits of Missouri do not constitute a legal charge against the public funds. Laws 1913, p. 354; Laws 1915, p. 302; Laws 1917, p 18, sec. 56; Laws 1917, p. 26, sec. 80a; Sec. 48, Art. 5 State Constitution. (3) To authorize the expenditure of the public funds to cover traveling expenses outside the State, the officer so claiming must point either to an appropriation act expressly authorizing the said expenditures, or to the act designating his duties from which it may be naturally and reasonably inferred that such travel is necessary to the proper discharge of the official duties cast upon him. Secs. 10920, 10922, R. S. 1909; State ex rel. Lamkin v. Hackmann, 204 S.W. 513; Laws 1917, p. 26, sec. 80a. (4) Respondent contends that admitting all the facts well pleaded in count three relator has failed to state facts sufficient to constitute a cause of action and, therefore, the relief prayed for must be denied. State ex rel. Bartley v. Governor, 39 Mo. 401; School District v. Lauderbaugh, 7 Mo. 194; State ex rel. v. Railroad, 77 Mo. 147; State ex rel. v. Hudson, 13 Mo.App. 62; Hambleton v. Dexter, 89 Mo. 191. The petition and writ must state facts in issuable form which clearly shows relator is entitled to the particular relief prayed for. State ex rel. v. Everett, 52 Mo. 93; Curry v. Cabliss, 37 Mo. 334; State ex rel. v. Stone, 269 Mo. 342. (5) The insufficiency of the facts alleged in count three by failing to show a clear right to the peremptory writ can properly be raised on demurrer. State ex rel. v. Everett, 52 Mo. 93; State ex rel. v. Allen, 187 Mo. 560; State ex rel. v. Hitchcock, 171 Mo.App. 114; State ex rel. v. County Court, 41 Mo. 560.

OPINION

In Banc

Mandamus.

FARIS J.

This is an original proceeding in three counts, brought by relator, who is the State Warehouse Commissioner, against respondent as State Audior, to compel by mandamus the auditing for payment of certain accounts for expenses incurred in traveling, as it is averred, upon the business of the State.

The case is at issue upon demurrers to the alternative writ of both a general and a special sort. From the legal viewpoint the case may be considered and dealt with, both as to the statement of facts and the discussion of the law, upon the principles presented by the first and third counts.

Omitting merely formal parts, and the prayer for relief, all of which are conventional, the first count reads thus:

"Your petitioner says that in the month of March, 1918, in connection with and in the discharge of the duties of his office as State Warehouse Commissioner of Missouri, it became necessary for him to go to Washington, D. C., on official business, for the purpose of conferring with the Agricultural Department of the Government of the United States, in order to receive instructions with reference to a systematic method of inspecting grain throughout the different states of the Union; and that the attendance of your petitioner at said meeting in said month of March, 1918, was by him believed to be, and your petitioner alleges that it was, useful and necessary to the proper and efficient discharge of the duties of his said office, and tended to promote and advance the inspection of grain in the State of Missouri; that his attendance in Washington, D. C. was authorized by the laws of this State prescribing his powers and duties, and more particularly by the provisions of an act of the Legislature creating the office of Warehouse Commissioner and defining his duties, approved, March 20, 1913, and found at page 354, Laws of Missouri of 1913, and amendments thereto.

"Your petitioner says that in attending said meeting with said Agricultural Department at the time and place aforesaid, he actually expended the sum or $ 157.40, and that said amount was the reasonable and actual expense of his said attendance at said meeting, including necessary railroad fare, hotel bills and other expenses reasonably and actually necessary to his attendance at said meeting; and that no personal expenses were or are included in said above mentioned sum.

"Your petitioner says that thereafter, and on the 23rd day of March, 1918, he presented to the said George E. Hackmann, State Auditor, as aforesaid, his account in said sum of $ 157.40 (which said account had theretofore been duly approved by petitioner, as State Warehouse Commissioner of Missouri), for allowance as a claim against the State of Missouri, as authorized and provided by the laws of the State of Missouri, and to be paid out of the moneys appropriated for the contingent and traveling expenses of the Department of State Warehouse Commissioner, said money being appropriated by Act approved April 11, 1913, entitled, 'An Act to appropriate money for the support of State Government, the payment of the contingent and incidental expenses of the State Departments, etc.,' and being Section 56, page 18, of the Laws of Missouri of 1913; that at the time your petitioner presented said account to the said George E. Hackmann, State Auditor, as aforesaid, for allowance, there was, and is now, in the State Treasury, to the credit of the traveling expense account of the moneys appropriated for the contingent and traveling expenses of the Department of State Warehouse Commissioner, more than sufficient money to pay said account of $ 157.40; and that it then and there became the duty of the said George E. Hackmann, State Auditor, as aforesaid, to audit and allow said account in said sum of $ 157.40; but your petitioner says that the said George E. Hackmann, State Auditor, as aforesaid, wrongfully failed and refused, and does still wrongfully fail and refuse to audit said account in said sum of $ 157.40, or in any other sum."

To this count, as stated above, both general and special demurrers have been interposed by respondent. Such parts of these demurrers as apply generally to all three counts and such as specifically refer to the first and second counts (the latter of which being of the identical general character of the first count, we are here considering with it as forecast, supra,) read thus:

"First: Because the said counts one, two and three, or either of them, do not state facts sufficient to constitute a cause of action against the respondent herein.

"Second: Because said counts one, two and three, or either of them, and all the matters and things therein stated and set forth are not sufficient in law to entitle the relator to the relief prayed for, or any other relief.

"Third: Because it appears upon the face of said first and second counts and each of them, that the expenses made and incurred by relator were expenses made and incurred in traveling without the limits of the State of Missouri, and therefore said expenses were incurred without authority of law.

"Fourth: Because the act of the General Assembly approved March 20, 1913, and found at page 354, of the Laws of Missouri of 1913, and amendments thereto, and the act making appropriation for the department of State Warehouse Commissioner referred to and set out in counts one and two, and each of them, of the alternative writ and petition, show upon their face that the money appropriated for the payment of traveling expenses by relator's department can be used in payment for traveling expenses made and incurred only within the limits of the State of Missouri."

The third count of said petition and alternative writ, again omitting conventional parts as stated above, reads thus:

"Your petitioner says that from the 1st day of January, 1917, up to and including the first day of November, 1918, while acting as State Warehouse Commissioner of Missouri, it became necessary for him, in the discharge of the duties of his office, as aforesaid, to travel on official business from one point in the State of Missouri, to another point for the purpose of performing his duties as such State Warehouse Commissioner; that such travel was by him believed to be, and your petitioner alleges that it was useful and necessary to the proper and efficient discharge of the duties of his said office, and tended to promote and advance the inspection of grain in the State of Missouri, that said travel was authorized by the laws of this State prescribing his powers and duties, and more particularly by the provisions of an act of the Legislature creating the office of Warehouse Commissioner, defining his duties, and approved March 20 1913, and found at page 354, Laws of Missouri of 1913, and amendments thereto. Your petitioner says that in traveling on official business, as aforesaid, at the times aforesaid, he actually expended the sum of $ 101.60, embraced in expense, filed with the Auditor, containing a statement as to what such expenditures were for between the said dates of January 1, 1917, and November 1, 1918, and that said amounts were the reasonable and actual expenses in traveling, as aforesaid, including necessary railroad fare, hotel bills and other expenses reasonably and actually necessary, as aforesaid; and that no...