The State ex rel. Nolen v. Hackmann

• Decision Date: 19 December 1918
• Citation: 207 S.W. 494,276 Mo. 173
• Parties: THE STATE ex rel. CECILE S. NOLEN v. GEORGE E. HACKMANN, State Auditor
• Court: Missouri Supreme Court

207 S.W. 494

276 Mo. 173

THE STATE ex rel. CECILE S. NOLEN v. GEORGE E. HACKMANN, State Auditor

Supreme Court of Missouri

December 19, 1918

Writ Quashed.

A. T Dumm for relator.

(1) Respondent's return admitting, as it does, that relator was duly appointed stenographer for the Department of Land Reclamation, pursuant to law and by the officer authorized by law to make the appointment; admitting that this officer duly made out and approved vouchers for her salary for the time of her employment, to-wit, from April 1, to September 14, 1917 and that on said last named date said vouchers were duly presented to respondent for allowance; admitting that there was then and now is in the State Treasury, to the credit of the appropriation for the salary of the stenographer of the Department of Land Reclamation more than sufficient money to pay said vouchers, nothing remained for respondent to do but to draw his warrant upon the Treasury for the undisputed amount of her salary; and having failed to do so, the peremptory writ should be awarded. Sec. 2, Laws 1913, p. 406; Sec. 4, Laws 1913, p. 406; Sec. 52a, Appropriation Act of 1917, Laws 1917, p. 17; Sec. 11813, R. S. 1909; Sec. 11827 R. S. 1909; State ex rel. v. Mason, 153 Mo. 56; 19 Am. & Eng. Ency. Law (2 Ed.), pp. 786, 787; State ex rel v. Gilbert, 163 Mo.App. 686; State ex rel. v. Walbridge, 153 Mo. 203; Bates v. City of St. Louis, 153 Mo. 18; Gracey v. City of St. Louis, 213 Mo. 397; Danley v. Whiteley, 14 Ark. 702. (2) Relator having been admittedly appointed stenographer by the officer authorized by law to make the appointment, and the Commissioner having found that relator performed the services which this officer required her to perform, respondent cannot justify his refusal to draw a warrant for her salary on the ground that she was not qualified to fill the place to which she had been duly and legally appointed. To uphold respondent in this contention would be to make him, and not the head of the department, the judge of the qualifications of an employee in that department. State ex rel. v. State Auditor, 46 Mo. 326; Sec. 4, Laws 1913, p. 407; State ex rel. Weeks v. Bamble, 13 Fla. 9; Swann v. Buck, 40 Miss. 268; Cooke v. Iverson, 52 L. R. A. (N. S.) 415; State ex rel. v. Mason, 153 Mo. 56; State ex rel. v. Gilbert, 163 Mo.App. 686; Sec. 11827, R. S. 1909; Secs. 2 and 4, Laws 1913, p. 406; Danley v. Whiteley, 14 Ark. 7021; 23 Am. & Eng. Ency. Law (2 Ed.), p. 364; 19 Am. & Eng. Ency. Law (2 Ed.), pp. 786, 787.

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

(1) By express statutory provision it is made the duty of the State Auditor to "audit, adjust and settle all claims against the State payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons." Secs. 11813, 11825, 11829, 11842, R. S. 1909. (2) Neither the act authorizing the appointment of a stenographer to the Land Reclamation Commissioner, nor the act making appropriation for the payment of such services, expressly requires such claim to be audited and settled by any other officer, and therefore, the auditing thereof falls within the statutory duty cast upon the State Auditor by Sec. 11813, R. S. 1909. Laws 1913, p. 407, secs. 2 and 4; Laws 1917, p. 17, sec. 52a. (3) The Auditor, in the discharge of his specific, express statutory duty to "audit, adjust and settle all claims against the State," is not bound by the voucher filed with him by the certifying officer or person, but has full authority to go behind such certificate and ascertain the facts for himself before issuing his warrant on the State Treasury. Morgan v. Buffington, 21 Mo. 549; State ex rel. McMurty v. Thompson, 37 Mo. 176; State ex rel. v. Draper, 50 Mo. 24; State ex rel. v. Clark, 61 Mo. 263; State ex rel. Daily v. Thompson, 41 Mo. 13; State ex rel. v. Allen, 180 Mo. 27; State ex rel. v. Wilder, 196 Mo. 418. (4) A public officer is entitled to the compensation provided for such office, not by virtue of a contractual relation but by reason of such salary being incident to the office; a stenographer or clerk, however, is an employee, and to be entitled to the salary authorized, the services thereunder must in fact be rendered. Mechem's Public Officers, sec. 855; 29 Cyc. 1366 and 1422; Thropp on Public Officers, secs. 443 and 500; Bates v. St. Louis, 153 Mo. 18; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Gordon, 245 Mo. 27. Since the relatrix, manifestly, is not a public officer as defined in the above authorities, but her position as a stenographer constitutes merely an employment, she would be entitled to the compensation provided only in the event that the services were in fact rendered. Paden v. City of New York, 92 N.Y.S. 926, 928; Throop v. Langdon, 40 Mich. 682. (5) The evidence clearly showing that relator was not a stenographer and did not render any stenographic services to the State under her appointment, the action of the respondent, in refusing to draw his warrant, was proper. Laws 1913, p. 407, sec. 2; Laws 1917, p. 17, sec. 52a; In re Appropriations, 25 Neb. 662.

WILLIAMS, J. Graves, J., not sitting.

OPINION

In Banc

Mandamus.

WILLIAMS J. --

The facts concerning this proceeding are concisely and sufficiently stated in the brief of relatrix, from which we quote as follows:

"This is a mandamus proceeding, original in this court, begun by the filing, on April 9, 1918, of relatrix's petition for an alternative writ of mandamus The alternative writ was awarded on April 27, 1918, returnable May 27, 1918. On the same date, to-wit, April 27, 1918, the issuance and service of the alternative writ were waived and the petition taken as and for the alternative writ by the Attorney-General, for the respondent. On June 22, 1918, respondent filed his return in this cause. On November 2, 1918, W. S. Pope, attorney at law, of Jefferson City, Missouri, was by the court appointed special commissioner to take the testimony and report his finding of facts to the court. On December 6, 1918, said commissioner filed with the clerk his report as to the finding of facts in said cause.

The petition for the alternative writ, which is taken as and for the writ itself, alleges, and the return admits, that John H. Nolen was at all the times mentioned in the petition the duly appointed, qualified and acting Land Reclamation Commissioner, and that respondent is and since the second Monday in January, 1917, has been the duly elected, qualified and acting State Auditor of the State of Missouri; that the said John H. Nolen, Land Reclamation Commissioner, as aforesaid, was authorized and empowered to employ a stenographer for said department of Land Reclamation, at a salary of one thousand dollars annually; that on the 1st day of April, 1917, relatrix was duly appointed by said John H. Nolen as stenographer for said department of Land Reclamation, at a salary of one thousand dollars per year; that on the 4th day of September, 1917, the said John H. Nolen, Land Reclamation Commissioner, as aforesaid, properly made out and approved vouchers in favor of relatrix in the sum of $ 455.42, in payment for her services as stenographer for said department of Land Reclamation, for the period from April 1, 1917, to September 14, 1917; that on said last named date, the said vouchers were duly presented to and filed with respondent for audit, allowance and payment as a claim against the State of Missouri; that there was on said 14th day of September, 1917, and now is in the State Treasury to the credit of the appropriation for salary of the stenographer of said department of Land Reclamation more than sufficient money to pay said vouchers and accounts for said sum of $ 455.42, and that respondent refused and still refuses to audit and allow said account and to draw his warrant upon the State Treasurer for the payment of the same."

The return denies that relatrix did, under and by virtue of her appointment as aforesaid, serve as stenographer for said department of Land Reclamation, for April 1, to September 14, 1917, and denies that there was or is now due her, for her services as alleged, the sum of $ 455.42, and charges that the said relatrix did not perform any duties or render any services between said dates by virtue of her said appointment as stenographer for said department of Land Reclamation, and that there was not on said 14th day of September, 1917, and is not now due relatrix the sum of $ 455.42, or any other sum, for said alleged services.

The return then states that by reason of the failure and neglect of relatrix to perform any duties or render any services from April 1, to and including September 14, 1917, under her said appointment as stenographer as aforesaid, there was not on said 14th day of September, 1917, and is not now due relatrix from the State of Missouri the sum of $ 455.42, or any other sum, and that therefore respondent is not authorized to and is in fact prohibited by law, from auditing, allowing and drawing his warrant upon the State Treasurer for the payment of said sum.

The special commissioner appointed to take the testimony and report to this court his finding of facts, reports that John H. Nolen, as Land Reclamation Commissioner, was authorized to employ a stenographer at one thousand dollars annually, and that he employed relatrix as such stenographer, at one thousand dollars per annum, her duties to commence on the first day of April, 1917; that relatrix was not a stenographer and could not do stenographic work, and that she did not do any stenographic work during the term of her employment, but that the work performed by her was purely clerical in its character, and consisted...