Kavanaugh v. Gordon

PER CURIAM. The majority of the court do not agree to the principal opinion and they state their different views in dissenting opinions filed, except Wood-son, J., who dissents generally; thus it appears that a majority of the court hold that the judgment of the trial court sustaining the demurrer to the plaintiffs’ petition was right, although they do not all concur in a reason for so holding. The judgment of the trial court is therefore affirmed. LAMM, J.- Cast on demurrer in the Cole Circuit Court, plaintiffs stood on their bill in equity, refused to plead over, suffered judgment and appealed. (A temporary injunction theretofore issued was continued in force pending appeal.) Suing both as members of .the Missouri Waterways Commission and as taxpaying citizens of the State of Missouri, plaintiffs seek to enjoin defendant, the State Auditor, from auditing the accounts and drawing warrants on the State Treasurer in favor of one John H. Nolen. Agreeably to that end their bill alleges that the Forty-Sixth General Assembly appropriated $17,-000 to the Missouri Waterways Commission (plaintiffs being that commission), and that said sum is available for the purposes of the commission, on vouchers and warrants audited and drawn in accordance to law; that the General Assembly, in violation of law, undertook to limit the use of $7000 of said appropriation in gross to the salary, traveling, hotel, clerical, stenographic and other necessary expenses of one Nolen, describing him “as special agent of the State and the Missouri Waterways Commission and expert in the work of said commission” — $5000 to his . salary in monthly installments, and $2000 to pay expenses above specified — all to be paid on vouchers issued by Nolen and approved by the auditor; that said part of said appropriation bill, so attempting to limit $7000 of the — 708 — $17,000 appropriated to the.commission, to the salary and expenses of Nolen, is unconstitutional, void and without authority of law. The bill then proceeds to sét out the particulars in which that part of the act is said to he void, as follows : First. In that by Par. 15 of Sec. 53 of Art. 4 of the Constitution, the Legislature is prohibited from passing any local or special law creating an office, and by a subsequent paragraph (26 of the same section) it is prohibited from granting to any individual a special or exclusive right, privilege or immunity, and by See. 46 of the same article it is prohibited from granting or authorizing the granting of any public money or thing of value to any individual. That inasmuch as the Legislature may not by a special act create an office, the appropriation in question is one of money to an individual for a private purpose and is an illegal donation of the public revenue to such private individual. That the grant is without conditions, for no duties are prescribed or attempted to be prescribed to be performed on the part of Nolen as special agent for the State or otherwise. Second. Plaintiffs plead the provisions of Sec. 28 of Art. 4 of the Constitution ordaining that a bill shall not contain more than one subject which shall be clearly expressed in its title, excepting from such provision general appropriation bills 'and bills under the third subdivision of Sec. 44 of said article. It is next averred that there was nothing in the title of the appropriation bill referring to the appointment of Nolen to the office therein ref erred to, “if there be such office,” and that the subject of his appointment is not germane to the title of the appropriation bill or to the subject-matter of said bill or to any part thereof. Third. It is next averred that the part of the appropriation bill struck at is a legislative attempt to create an office in violation of referred-to constitu — 709 — tional provisions, and is a legislative attempt to exceed the powers of the legislative department, in that the Legislature undertook to appoint a particular person to an office, in violation of Art. 3 of the Constitution and in violation of the prerogative of the executive department. Fourth. It is next averred that the questioned part of said appropriation bill is void, because special legislation, in that it singled out Nolen from all other persons eligible to hold the office or place therein provided for, in violation of the foregoing paragraphs of Sec. 53 and Sec. 46 of Art. 4 of the Constitution. Averring further that it is the duty of the Waterways Commission to conserve the funds appropriated to the commission, in order that the greatest benefit to the State of Missouri and its citizens be attained; that to that end the commission had requested defendant, as State Auditor, not to audit and approve the vouchers issued by said Nolen for -salary and expenses, and that they put their request on the said grounds of the unconstitutionality and illegality of that part of the appropriation bill, but defendant refused the request of plaintiffs, and had in despite thereof approved the vouchers of Nolen, which had been paid up to this time by the State Treasurer. Averring further that defendant, as Auditor, will continue that course and has so advised plaintiffs, they, being otherwise remediless, pray, an injunction against said Gordon to restrain him from approving or auditing or allowing Nolen’s vouchers on account of salary or expenses and from drawing any warrants on the State Treasurer in payment thereof, etc. The demurrer was put on the following grounds: “First. The court has-no jurisdiction upon facts alleged in the petition to entertain a bill for injunctive relief. “Second. The plaintiffs have not legal capacity — 710 — to sue as such Waterways Commission, or as members of such commission, or as individual taxpayers. “Third. The petition does not state facts sufficient to constitute a cause , of action. “Fourth. That there is a defect of parties de- ■ fendant, in this, to-wit: that it appears upon the face of the petition that John H. Nolen is a proper and necessary party in interest, and should be made a party defendant herein.” The cause was advanced because public interests were involved and submitted on briefs, In Banc, at our April Term. The Forty-fifth General Assembly (Laws 1909, p. 902), in an act of four sections, authorized the Governor to appoint a commission designated the “Missouri Waterways. Commission” to be composed of five persons “of high practical business qualifications,” three of them residing in counties contiguous to a navigable river — the duties of the commission being defined as follows: “. . . to investigate the various problems "associated with the navigable waterways of the State and the reclamation of the lands subject to overflow or inundation; the construction of practical and substantial levees; the ascertaining of lands now subject to inundation of rivers; the increase from benefits to be derived from these proposed developed navigable waterways, and reclamation of lands subject to overflow or inundation, and such other statistics and data as will intelligently enable the General Assembly to properly formulate and devise means and ways whereby legislative enactment may be had to carry out and put into effect the benefits to be derived by the creation of the navigable waterways, et cetera. The results of these investigations and studies, together with all obtainable statistics, to be embodied in a report of all its workings to the General Assembly. ’ ’ It is provided that members of the commission shall serve without pay, but are allowed their neces — 711 — sary and legitimate expenses incurred in the discharge of official business and duties. The “official term and expenses” of the commission close in four years from date of appointment. Five thousand dollars, or such part thereof as necessary, were appropriated for expenses, and the Auditor was directed to draw warrants up to the amount of the appropriation upon presentation of “the proper vouchers, certified by said commission and approved by the Governor, ” to be paid by the Treasurer out of the sum appropriated. Two years later the Forty-sixth General Assembly, by its appropriation act for the contingent and incidental expenses of the State government, and the payment of contingent and incidental expenses of the State departments, public printing and certain other demands against the State, for which no appropriation had heretofore been made for the biennial period of 1911 and 1912, etc., with an emergency clause, passed an appropriation act in 86 sections (one of them, Sec. 84, having many subsections). [Laws 1911, p. 2, et seq.] Sec. 63 reads: “There is hereby appropriated out of any money in the State Treasury not otherwise appropriated, chargeable to the State Revenue Fund, the sum of seventeen thousand dollars ($17,000) to the Missouri Waterways Commission. Of said sum seven thousand dollars ($7000) must be used and is to pay the salary, traveling, hotel, clerical, stenographic and other necessary expenses of John II. Nolen as special agent of the State and the commission and expert in the work of said commission,'five thousand dollars ($5000) of same to be used to pay the salary of said John H. Nolen and to be paid in monthly installments, and two thousand dollars ($2000) of said sum to be used to pay traveling, hotel, clerical, stenographic, and other necessary expenses of the said John H. Nolen, the same to be paid upon vouchers issued by John H. Nolen and approVed by the State Auditor.” — 712 — {Note: The part of said section commencing with the words, “Of said sum,” is the provision challenged in this suit.) The constitutional provisions held in judgment are: Par. 15, Sec. 53, Art. 4, prohibiting the General Assembly from passing any local or special law “creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts. ’5 Par. 26, Sec. 53, Ibid., prohibiting special or local laws “granting to any corporation, association or individual any special or exclusive right, privilege or immunity. . . .” See. 46, Art. 4, Ibid., denying to the General Assembly the power to make or to authorize the making of “any grant of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever: Provided, that this shall not be so construed as to prevent the grant of aid in a case of public calamity.” Sec. 28, Art. 4,Ibid., requiring a bill to contain no more than one subject which shall be clearly expressed in its title, with certain exceptions relating to general appropriation bills and bills passed under the third subdivision of Sec. 44 of Art. 4. {Note: Said third subdivision refers to contracting debts on any unforeseen emergency or casual deficiency of the revenue.) Art. 3 of the Constitution, reading: “The powers of government shall be divided into three distinct departments — the legislative, executive and judicial— each of which shall be confided to a separate magistracy, and no person, or-collection of persons, charged with the exercise of power properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the — 713 — instances in this Constitution expressly directed or permitted. ’ ’ I. It is argued the demurrer lies, because plaintiffs have no legal capacity to sue, either as individual taxpayers or as members of the Missouri Waterways Commission. If that be so, the case dies in limine, and other questions may be reserved. Attending to that view of it, it may be conceded, at the outset, that there is no such body corporate as the “Missouri Waterways Commission” known to the law, and that the commission as such is not a juristic person or entity that can sue or be sued. The statute instead of making it a body corporate, made it an aggregation of five individuals appointed by the Governor because of their high practical business qualifications, and gave it prescribed composite official duties, much like a committee, who serve pro bono publico and without pay, having a composite or aggregate well-sounding official title for convenience of designation. As near as it can be described, it is in the nature of a voluntary association, made such by statute instead of by contract. We see no good reason why those five gentlemen, in a matter pertaining to their official duties, should be denied access to the courts. We perceive no mischief to the State or to jurisprudence flowing from permitting them to sue either as an aggregation of officers, having a common right, or as an aggregation of individuals, in similar fix, provided they have a just complaint with which to vex the judicial ear. Strictly the members of the commission are not a partnership, as that term is known to law, but their relation to each other and to their public function, as said, may be likened, in a sense, to a partnership or voluntary association without doing violence to language. A partnership, or such association, is not a legal entity that can sue or be impleaded as — 714 — such, hut it may sue in the names of the individual members of the firm, or association, describing themselves by their partnership name and style, or association name, precisely as these plaintiffs do. It is written in the Constitution that courts of justice shall be open to every person for the administration of right and justice, and to afford certain remedy for every injury to person, property or character. [Sec. 10, Art. 2, Constitution.] That language is broad and deep-going. It is familiar doctrine that taxpaying citizens may be heard by injunction to prevent the consummation of illegal schemes putting a burden of debt or taxes upon the public, or to stop an illegal and wrongful expenditure of public money by public officials in charge thereof. [2 Joyce on Inj., Sec. 1382.] A legislative recognition of that idea may be found in Revised Statutes 1909, section 1275. [Vide, Black v. Ross, 37 Mo. App. l. c. 257 and cases cited.] It must be kept in mind, too, that in suing an administrative officer of the State by injunction (not including, of course, the Chief Executive) such suit is not against the sovereign State and therefore he is not beyond the reach of injunction, the “strong arm of a court of equity.” [Merchants Exchange v. Knott, 212 Mo. l. c. 647, et seq.] That amusing fiction served its day and is exploded. Moreover, the general doctrine runs: “Every public officer, although not expressly so authorized by statute, has implied authority to bring any suit, which may be required for the proper discharge of his official duties; or, as a learned judge has expressed the doctrine, ‘All public officers, although not expressly authorized by statute, have a capacity to sue, commensurate with their public trusts and duties. ’ ’ ’ [Throop’s Public Officers, Sec. 544.] That sensible doctrine is in point, and authority supporting it, collated in plaintiffs’ brief, will appear in our reporter’s notes to this opinion. — 715 — •- It could not be soundly argued that tbe Missouri Waterways Commission is not charged with public duty and responsibility in expending the money appropriated by the Legislature to the commission for governmental purposes, for the common weal, the benefit of all the people. Counsel for plaintiffs well say under this head: “It is incumbent upon the members of this commission to see to it that the money committed to their charge by the General Assembly is used for the legitimate purposes for which it was set apart and appropriated. £ A public office is a pub-, lie trust’ and as trustees of this fund the plaintiffs are responsible to the people of the State for its use, and have such an interest in their official capacity as authorizes them to invoke equitable aid for its protection.” We sympathize with that view of it. Our learned Attorney-General and his learned associate counsel do not point out to us who could bring a suit to restrain the illegal and wrongful use of the public funds in question, if plaintiffs cannot do so either as taxpaying citizens or as officials in charge of the subject-matter, bounded and evidenced, as it is, by the law and which the appropriation was in aid of. Are courts (without being driven to it by some inflexible rule of law) to so rule that public interests may suffer on the theory of the wry saying: What is everybody’s business is nobody’s business? Or on the laissez faire or the-world-goes-of-itself doctrine? We know of no principle of law that- is violated, or of no just interest that can suffer by holding these plaintiffs have legal capacity to sue, either as taxpaying-citizens or as officers; and if in either, then the demurrer cannot stand on that foot. If we had doubts about it we would solve them in favor of permitting them to sue; for the precepts to go by are: In cases of doubt, the least doubtful course should be taken. In doubtful cases, the more worthy is to be taken. In case of doubt, conscience — 716 — has play. Unless limited by statute, courts liberally further the right to sue. Agreeable thereto are many cases whose doctrines, by parity of reasoning, apply here. We rule the point against defendant. II. It is argued that the bill shows on its face that John H. Nolen is a necessary party in interest and that the fourth ground of demurrer was therefore well taken. This contention dovetails into another, namely, that the suit in effect is one to oust Nolen from an office and that the remedy in such case is not injunction, but quo warranto. The two questions may as well be considered together, taking the last first. (a). Counsel for defendant have industriously searched for precedents and have marshaled a formidable array holding that the right to a public office cannot be decided by injunction. Put otherwise, that in contests over the right to an office by appointment or election, the suit must be at law by quo warranto and not in equity. We have no bone to pick with that doctrine. But the argument travels inadvertently on a misapprehension and has no place in the case at bar; for here there is no office or officer and the object of this suit is not to oust any one from office. An officer must be one either de jure or de facto. There must be an office before there can be an officer. The law being a bundle of rules to make life tolerable among civilized men, courts have gone to great length in sustaining the theory of de facto officers. Otherwise, the business affairs of mankind would fall into chaos and distress. To that end many cases may be found (and have been cited by counsel) holding that where there was an office created by law, which law was afterwards declared unconstitutional, the acts of the officer by virtue of his office during the time the law was in force were the acts of a de facto officer. But principles of law relating to the acts oí' de — 717 — facto officers do not apply to the case at bar. One vice of the argument made is, it begs the question. It assumes Nolen is an officer either de facto or de jure. That assumption is questioned and we think rightfully. All will agree that there can be no officer in the sense of the law unless that law has first created an office. An office, speaking in colloquial figure, is a hole. An officer is a peg. Peg and hole go together, even as a pea fits the pod or a hand the glove. Counsel have been able to put their finger on no law creating the office of “special agent of the State and the commission and expert in the work of said commission.” Nowhere within the lids of the statutes is there such an office created by express provision or by implication. We are not dealing at this point with the right of the Legislature in a general appropriation bill, absent a proper title indexing such subject-matter, to create an office; nor are we dealing with that phase of the case involving the question whether the Legislature may appoint a certain man to an office in derogation of the constitutional appointing power of the executive department. We are dealing with the' naked question whether the statute, such as it is, creates an office. It would be an alarming bouleversement in rules of hermeneutics to hold that the words; descriptive or commendatory of Mr. Nolen, used by the lawmaker in Sec. 63 of the act beginning page 2, Laws of 1911, just quoted, create a public office or were intended to create one. Look at it. There are no duties prescribed as pertaining to the office or for the person mentioned, no tenure or duration of office even by implication. The source of official life is not hinted at, let alone set down. Yerily the office is like the wind. It bloweth where it listeth and we hear the sound thereof. But no man knows whither it cometh or whither it goeth. He is not required to take an oath, give bond, do anything or report to anybody at — 718 — any time. Who made him an officer or who has‘power to unmake him? There are two ways of getting at whether there is an office and an officer. One way is that prescribed, by the statute itself. In this case the statutes, like the deeps, are dumb, giving forth no sound. Another way is to get at the matter through general definitions and principles of law. The question was up in Gracey v. St. Louis, 213 Mo. l. c. 394, and we there made some observations apposite here, viz.: " As danger lurks in mere generalizations, one sensible method of determining what .is an office is to go to the written law creating the position and determining its duties (in this instance, defendant’s ordinances) and discern the legislative intent evidenced by its words. That was the plan adopted in State ex rel. v. Harter, 188 Mo. l. c. 526, et seq., and in State ex rel. v. May, 106 Mo. 488. “If, however, the question be referred to the more general definition of public office, the result would be the same. For instance, Macfarlane, J., in State ex rel. v. Bus, 135 Mo. l. c. 332, declares the sum of the matter to be 'that if an officer receives his authority from the law and discharges some of the functions of government he will be a public officer.’ An office has been defined as ‘a special trust or charge created by competent authority’ — more tersely still,- £a public office is a public trust.’ His oath, Ms bond, his liability to be called to account as a public offender for misfeasance or non-feasance, the tenure of his position, etc., have been said to be indicia of a public officer. [State ex rel. v. May, supra; Troop v. Langdon, 40 Mich. 682.] And the general doctrine is that the idea of office clearly embraces the ideas of tenure, duration, fees or emoluments, rights and powers as well as that of duty. [6 Words and Phrases, p. 4923.] It has been aptly said that the true test of public office is 'that it — 719 — is a parcel of the administration of government.’ [2 Bouv. Law Dict., tit. ‘Officer.’] ” Measured hy the yardstick of the above pronouncement there is no office and no officer. In State ex rel. v. Fast, 209 Mo. 708, there was a writ of mandamus sued out in this court at the relation of the board of education of the city of -St. Louis, against Nast, a clerk of the circuit court for criminal causes in the city of St. Louis, and against the city itself. The question was whether fines collected by him as clerk of ■“the St. Louis Court of General Sessions” should be turned over to the hoard for school purposes. In that case, quoting from an earlier case, Ex parte Snyder, 64 Mo. 58, we said: “ ‘Numerous cases can be instanced from the hooks, where the acts of an incumbent of an office have been valid, upon the ground that such incumbent was an officer de facto. But an officer of that description necessarily presupposes an office which the law recognizes. And a quite extensive research has failed to discover an instance where an incumbent has been held an officer de facto, unless there was a legal office to fill; and all the cases cited from our own reports were of that sort. And as there was no such office or court known to the law as the probate and criminal court of Cass county, the conviction of the petitioner was altogether coram non judice.’ ” Recognizing the doctrine of the Snyder case as being a stumbling-block in their way, learned counsel for defendant insist it was badly ruled. But as, In Banc, in the Nast case, it was cited and unanimously allowed as controlling on the very point now up, its authority must he taken as unshaken. (h). Nor was Nolen a necessary or proper party to the suit, considering the life and scope of the hill 'and the remedy sought. It could not he well held that he had a vested right in1 public money collected hy way of tribute from taxpayers and held in the money chest — 720 — of the State for governmental purposes. Neither, under this bill, can it be held that Nolen can be ousted from office, for the forcé of the bill is spent entirely elsewhere. His title, if any, to a putative office, is only involved as "a mere incident to the suit which is aimed at stopping an alleged illegal leak in the public treasury through the interpretation put by the Auditor on the statute. It cannot he contended that Nolen has power to draw warrants on the State Treasurer. The State Auditor is the sole donee of statutory power in that regard and what this bill seeks to do is to prevent the Auditor from doing that thing. As well might it have been argued that Judge Rodgers, who was judge of the St. Louis Court of General Sessions, should have been made a party to the petition in mandamus in the Nast case, supra, where the constitutionality of the act creating his court was drawn in question, as to argue that Nolen is a proper party here. As well might the school teacher, whose wages were incidentally involved, or the landlord whose lease was incidentally involved, have been made parties in Black v. Cornell, 30 Mo. App. 641, where an injunction was sought against the school directors and county treasurer to prevent the illegal dissipation of school funds, as to insist that Nolen was a proper party here. If B. is doing mischief to A. by issuing warrants on a fund, and A. wishes to put a stop to that mischief, he sued B. who is doing the mischief and not C., D. and F., Who may incidentally be the recipients of benefits from the mischief when once it is a fait accompli. That was the course pursued in Black v. Ross, 37 Mo. App. 250. If Nolen he a proper party why not his stenographer or clerk? The point is ruled against defendant. III. Was that part of Sec. 63, supra, beginning' with the phrase, “Of said sum $7000 must be used,”’ etc., an unconstitutional exercise of legislative power? — 721 — We will assume, as already held, that Nolen was not an officer, filling a public office. Attending to the language of the challenged part of the act, it is apparent he was not dealt with as a creditor of the State with a claim due to be paid by an appropriation in a bill. The words of the provision point unmistakably to monthly payments in the future, not to pay for services already rendered to the State. It would be folly to speculate at any length on the object or point of view of the lawmaker in that provision; for what is not dark is inscrutable. Could it be intended the courts should feel out or smell out a public office, if called to construe the act? Or build up one, by airy fancy or strained implication on such a bare foundation as a mere legislative grant of a salary or gratuity? Or is the legislative hint that Nolen is an “expert” and “agent” effective in that regard? Those questions baffle answer except by a guess. If Nolen was already an employee of tbe commission, did the Legislature intend he could not be discharged for cause? Hardly. Such theory is not an imputable one to a co-ordinate branch of the government. If not an employee, was it intended to compel his employment willy nitty by a business board of “high qualifications?” If so, why did the law not say so? We will not suppose it so. Some of the language indicates he was dealt with as an “ agent of the State and commission.” But what basis is there for that in law or fact? Who hired him as an agent, on what terms and under what lav? Some of the language indicates he was made independent of the commission. For instance, he reported to no one, he submitted his own vouchers to the Auditor and to that extent, at least, was given a free rein. As to that, whatever his object, it is clear the lawmaker was careful not to make him an officer with the indicia of' office. As heretofore pointed out, he gave him no term, no official name, — 722 — created no office, no tenure, fro duties, did not assume to appoint him by saying so, and, under the law as written, he ivas entitled to his money without performing any duties whatever. Minus official orbit, lie is a wandering star in Missouri governmental heavens. In that view of it, we can come to no conclusion except that he is dealt with as an individual. Hence the provision that $7000 of the $17,000 appropriated to the commission must be paid to him on his own vouchers, amounted in reason and law to an out-and-out gift to Mm as an individual of $7000 of the State’s money in violation of See. 46, Art. 4, of the Constitution, supra. [State ex rel. v. St. Louis, 216 Mo. 47; State v. Distilling Co., 237 Mo. l. c. 106-7.] The appropriation fell squarely within the evils struck down by that constitutional interdiction, whereby the people set impassable bounds to legislative power. We have no call by construction to abate the vigor of that wise provision a whit. The constitutionality of a law is not to be lightly drawn in question. A statute sleeps at the start in the nursing bosom of many friendly presumptions. But, however delicate the task, courts may not put away from them the grave duty of saying one is unconstitutional when it is so beyond a reasonable doubt. [State ex rel. v. Warner, 197 Mo. 650]. Furthermore there can be no two ways about it that it is special legislation of an undisguised and typical kind, granting a special or exclusive right or privilege to an individual, Nolen, in violation of Par. 26, Sec. 53, of Art. 4 of the Constitution, supra. Special, legislation is that made for an individual as distinguished from a class, precisely as here. [State ex rel. v. Gordon, 236 Mo. l. c. 162, et seq.] IY. The constitutionality of part of the act does not affect an independent part making a perfect law. The case in that respect falls- witMn the doctrine of — 723 — State ex rel. Tolerton v. Gordon, 236 Mo. 142, and State ex rel. Bixby v. St. Louis, 241 Mo. 231, and is to be ruled tlie same way. Be similibus idem est judicium. The premises considered, as tlie case breaks on points determined, other questions discussed by counsel are reserved. The judgment should be reversed and the cause remanded, with leave to defendant to answer, if he so elect, and for further proceedings in accordance with this opinion. Broivn, J., concurs; Valliant, G.J., dissents, in an opinion filed, in which Ferriss and Kennish, JJ., concur; Graves, J., dissents, in an opinion filed; Wood-son, J., dissents; The majority of the court not concurring, the judgment of the court is set forth in a per curiam, (ante, p. 707).