State ex rel. First National Bank v. Bourne

NIXON, P. J. Under the theory adopted by both parties in the presentation of this case to the trial court as well as to this court, two questions are pressed for determination and they will be considered in their order. I. The appellants’ first assignment is that the court committed error in issuing a second alternative writ of mandamus and in failing to pass upon a demurrer filed by them to the first writ, the contention being that while the first writ was undisposed of the court had no power to issue the second writ and that the defendants’ motion to quash the writ for these reasons should have been sustained. The appellants also contend that the second petition and the alternative writ issued thereon was a complete change of the cause of action, and a departure — 117 — from the original in this, that in the original petition and writ, the only charge of misconduct of the members of the school board was that they had accepted the bid of the Miners Bank, which was lower than the bid of the relator, and that under such allegations, no grounds for relief recognized by law were stated., That the second petition and writ added a charge of fraud,, collusion and bad faith upon the part of the board and the Miners Bank, and that without this charge no cause of action was stated by the relator either in the petition or alternative writ of mandamus. The authority to allow amendments in eases of proceeding by mandamus is specifically provided for by statute. Section 657, Revised Statutes 1899, contains a general provision for allowing amendments of pleadings, and section 675, Revised Statutes 1899, specifically provides that these provisions shall apply to writs of mandamus as well as to other proceedings. Our statutes relating to amendments- of pleadings leaves a very large discretion to the trial court and allows the curing of defects of form and many errors of substance in pleadings to save rights and advance justice. Appellants complain, however, that the court erred not only in permitting an amendment, but because the character of the amendment was such as to' constitute a new cause of action. The question in our courts as to what extent amendments should be allowed to petitions is not entirely free from doubt, and some difficulty arises in reconciling all the opinions on this question. The test of allowable amendments in some cases has been formulated in the pronouncement (1) that the same evidence will support both .petitions, and (.2) that the same measure of damages will apply to both, and it has been held that these are the criteria in judging of the allowableness of an amendment. [Scoville v. Glasner, 79 Mo. 449.] But in a later case, our Supreme Court has drifted from this hard and fast rule of inter — 118 — pretation of what is a permissible amendment into a more liberal interpretation of the statute and one more consonant with its spirit. In the case of Rippee v. K. C. Ft. S. & M. Ry. Co., 154 Mo. l. c. 364, 55 S. W. 438, the Supreme Court approved the test announced by the Supreme Court of Vermont in the case of Daley v. Gates, 65 Vt. 592, namely: “As long as the plaintiff adheres to the contract or injury originally declared upon, an alternation of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of .action.” Our Supreme Court declares that if the amendment is merely the same matter more fully or differently laid to meet the possible scope of the testimony, it is not a change of the cause of action. This opinion seems to meet the views announced by Goode, J., in the case of Stewart & Jackson v. Van Horne, 91 Mo. App. l. c. 655, where he said: “..... although a relaxation of the Procrustean forms, narrow logic and scholastic sublety of the common law in regard to the pleading and practice was as necessary to make judicial proceedings a surer means of determining causes according to their merits, as the transition from mediaeval tenures, regulations and policies was to introduce a broad equality of rights into the law. Justice will too often miscarry if the old technical rules of procedure are not qualified by allowing a wide scope to the privilege of making amendments and the success of litigants will turn too much on the dexterity of their, counsel.” Again, in the same opinion: “The statutes permit amendments which do not substantially change the claim or defense. [Revised Statutes 1899, secs. 657, 659 and 661.] It is reasonable to conclude that the restriction thus placed on the right to amend, otherwise so generously bestowed, and so consonant to the enlightened spirit of the code and its purpose to get rid of all technical embarrassments in the administration of justice, was intended to extend no further than is — 119 — necessary to prevent a party from bringing bis action for the redress of a grievance (or interposing a defense) arising ont of a certain occurrence and after-wards substituting another cause of action or defense growing out of an entirely different one; to confine a party’s pleadings to the transaction first charged to have produced the controversy, and not to exclude an amendment because the two statements of the cause of action merely vary in details. If this limitation was not imposed on the privilege to amend, a party summoned in an action would never know what case he might be called on to meet, while a plaintiff certainly knows, when he sues in what particular affair he thinks he was injured.” The amendment in this case falls clearly within the principles announced in these cases. The same parties are retained in the amended petition as were in the original, and the redress of the same grievance arising out of the same transaction is brought under investigation. The injury charged to have been sustained and for which redress was sought in the first petition was the illegal award of the depositary by the defendants to the lowest instead of the highest bidder. The injury charged to have been committed and for which redress was sought in the amended petition was the illegal award of the same depositary to the highest instead of the lowest bidder; the transaction was the same, and the cause of action was substantially the same. We therefore arrive at the conclusion that the amendment was authorized by the statute and did not substitute an entirely new cause of action. Besides this, however, appellants are gored by the horns of a legal dilemma. If the amendment did not change the original cause of action, the right of amendment existed under section 657, Revised Statutes 1890. If, on the contrary, it was a new cause of action, the defendants, instead of protecting their rights under a special appearance, entered a general and voluntary appearance and thereby conferred upon the court juris — 120 — diction of the action nnder section 566, Revised Statutes 1899. II. Appellant’ principal contention remains for consideration and is that under the sections of law providing for the awarding of the depositary it is expressly provided that the school board should have the'right to reject any and all bids, and that such authority vested them with discretionary power; that, having the discretionary power, they were authorized to exercise it in view of the facts and circumstances as they saw them; that, having acted their discretion could not be controlled and they could not be directed by the courts what action they should take or to whom they should award the depositary. The general rule is everywhere recognized that the writ of mandamus will not issue to control the judgment or discretion of a public officer or officers, but only to require the performance of a plain ministerial duty. The word “discretion,” however, is susceptible of widely different definitions, as actually applied to the administration of affairs. When it becomes an uncontrolled power, it is often a source of intolerable abuses. Speaking of the discretion-of a judge, an eminent jurist, Lord Camden, said: “The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends on the constitution, temper and passion. At best it is often caprice. In the worst it is every vice, folly and passion to which human n ' be liable.” [3 Words and Phrases 209-6-3 The policy and history oi our state in its legislation concerning depositaries, county and school, has received a very able and classical statement in the opinion rendered by Bland, J., in the case of State ex rel. v. Hawkins, 13 Mo. App. l. c. 45, 109 S. W. 77. “Prior to 1895, the treasurer of the state and the treasurer of many of the counties of the state derived a profit from the state and county funds by receiving — 121 — interest thereon from banking corporations in which they deposited said funds.. Section 17, article 10, of the Constitution of 1875, declares the maldng of profit out of state, county, city, town or school district money, or the use of the same for any purpose not authorized by law, by any public officer, to be a felony; and section 15 of the same article, makes a provision for the deposit of all state moneys at interest for the benefit of the state. In pursuance of this declared policy of the state, the Legislature enacted the county depositary law. This policy prohibits all forms of graft by public officers in the handling or depositing of public funds and forbids all favoritism in the selection of banking institutions as depositaries of said funds. Keeping this policy in view, the county depositary act should be-so interpreted as to effectuate the purposes the Legislature had in view when enacting it, that is, that the county should receive the benefit of the highest rate of interest obtainable on the county funds at a •miniirmnn risk of losing said funds, or any part thereof. This would not be accomplished by the selection of a depositary of doubtful solvency, or whose business methods are not consistent with safe and sound rules of banking. The county courts are by law made the agents of the. counties for the transaction of all county business, and the Legislature, in its wisdom, delegated to these courts the power and duty of selecting depositaries for the funds of the counties, and gave them the right to exercise, not arbitrary power, but a sound discretion in making such selection, by providing that they might re j ect any and all bids for the fund. Without this proviso it would be the imperative duty of the county courts to designate the banking institution making the highest bid as county depositary and to award to it the funds, on the execution of a solvent bond. The proviso modifies the imperative words of the statute, not by leaving it to the discretion of the county courts to select or refuse to select a depositary at all, but to re — 122 — ject any bid made by a banking institution whose solvency or business methods would, in the opinion of the courts, putlo hazard the funds of the county, or involve it in litigation in respect thereto. Under the statute, the designation of a depositary is an act in the administration of the financial affairs of the county, and the exercise of a ministerial or executive function conferred upon the county courts by the Legislature. ’ ’ It is seen that this opinion limits the discretion to the determination of the solvency and business methods of the bidders for the funds. The discretion that an official may exercise in the discharge of his duties was discussed in the case of State ex rel. v. Lafayette County Court, 41 Mo. 222, which was a mandamus proceeding to compel the county court to approve the bond tendered by the sheriff. The petition stated that the court exercised its authority in a capricious and arbitrary way in refusing to approve the bond tendered. In the lower court a demurrer was sustained to the sufficiency of the allegations of the petition, and an appeal was taken to the Supreme Court. In passing upon the court’s action Judge Wagner said: “The approval or rejection of the bond is essentially a ministerial act, though coupled with a discretion. When the law devolves up on an officer the exercise of a discretion, it is sound legal discretion, not a capricious, arbitrary or oppressive one. In a case like the one presented here, if this court has no' jurisdiction the. petitioner would stand in the anomalous attitude of a person having a clear specific right, and yet be entirely remediless by law."” Again, in the case of State ex rel. v. Public Schools, 134 Mo. l. c. 306, 35 S. W. 617, our Supreme Court approves the statement of the law concerning discretion announced in tlae ease of Village of Glencoe v. People, ex rel., 78 Ill. 382, where the learned court said: “The discretion vested in the council cannot be exercised arbitrarily, for the gratification of feedings of malevolence, or for the at — 123 — tainment of merely personal and selfish ends. It must be exercised for the public good, and should be controlled by judgment, and not by passion or prejudice. When a discretion is abused and made to work injustice, it is admissible that it shall be controlled by a ■ mandamus.” Reference is then made to the following language of the Supreme Court of New York in the case of People ex rel. v. Superior Court, 5 Wend. 114: “The jurisdiction of this court bymandamusisone of immense importance and extent. ... It extends to all inferior courts and tribunals. . . . The security of a citizen is essentially increased whenever the territory of undefined discretion ... is circumscribed by the establishment of well defined and clear principles.” After reviewing numerous other authorities, our Supreme Court thus concludes [/“These authorities sufficiently indicate that when an inferior tribunal or official body, charged with the performance of a duty involving a discretion in the exercise thereof, is guilty of a gross and palpable violation of the discretion confided to it, this court, in the exercise of the superintending control conferred by the constitution of the state, will control the inferior tribunal by its writ of mandamus, especially if the right violated pertains to the public.”^/The latest declaration of our Supreme Court .on this question is found in the case of State ex rel. v. Adcock, 206 Mo. l. c. 556, 105 S. W. 270. The question was presented as to whether a board of health could escape a peremptory writ of mandamus under the plea that it exercised its discretion on a subject and that its judgment was final. The Supreme Court made the following reply: “They claim that they exercised their best judgment, and having done so the incident is finally closed. Does the law place in the hands of administrative boards such arbitrary power? We think mot. If so, the courts are not open to the aggrieved, if such there be, and this ease is wrongfully here. If so, — 124 — such boards can arbitrarily refuse any applicant the rights prescribed- by the law, and he is without remedy. If so, such a board can hear the evidence and against all of the evidence, place its ipse dixit, and refuse to the applicant the privileges granted by the law. Such a doctrine is not consonant with reason, and it is not the-law.” Appellants claim that they exercised their discretion on this question and that their judgment is final. Discretion must always be reasonably exercised. As to whether or not it is reasonably exercised is a question for the courts. 'In the trial of this case, the evidence of the respective litigants was heard and determined by the court; the three members of the school board who had voted for awarding the funds to the Miners Bank testified in the case and their testimony tended to show that the conditions were the same at the time of the advertisement for bids as at the time of awarding the funds. It goes also to show that without regard to the difference in the bids made by the respective institutions, the funds were in fact awarded to the Miners Bank, because that bank had a personal preference of the majority of the board, a preference not based on sound legal discretion, but on purely personal fayor. The evidence also showed that each of said institutions bidding for the funds was in every way reliable, capable of making a bond and complying with all the conditions of the advertisement, and further, that one of the said institutions was as convenient as the other for the transaction of the business of the treasurer. The acumen and learning of counsel for the appellants has utterly failed to furnish any reason that commends itself to a disinterested person why the school funds were awarded to the lowest bidder instead of the relator, the highest bidder; and no reason has been given for the action of the school board which will stand a moment’s investigation when examined — 125 — from the viewpoint of the school children and taxpayers of the Carterville school district. Their interests and not those of the contending hanks were -the paramount and controlling questions which should have governed the action of the school board in awarding the depositary. The members of the school hoard held an important public office and upon them was enjoined the duty of protecting the interests of the taxpayers and the welfare of the public schools, the most sacred of public institutions, and the law will not tolerate recreancy to that duty or betrayal of the trust under the plea, however plausible, a discretion. As announced in the case of State ex rel. v. Public Schools, supra, the Legislature conferred the power upon the school board as a great and sacred trust, and it was necessarily implied that it was not a warrant for arbitrary and unjust use of such power, but that it should at all times be exercised for the best interests of the children and the people, considered as an entire body politic. Mandamus is a civil proceeding or .remedy having the nature and attributes of a civil action, legal, and not equitable, personal in its nature, and civil, not criminal. [26 Cyc. 140, 141.] The findings of the trial court in such cases, when supported by the evidence, cannot be disturbed by the appellate court. The evidence in this case abundantly shows that the majority of the board of directors in awarding the depositary to the Miners Bank, the lowest bidder, acted capriciously, arbitrarily and from personal favoritism, and were guilty of a gross abuse of their discretionary powers; under such circumstances, unless controlled by mandamus, the very purpose of the law in regard to awarding the depositaries of school funds would be defeated. It is therefore ordered that the judgment of the trial court be and the same is hereby affirmed. Cox, J., concurs; Gray, J., not sitting.