State ex rel. Kelly v. Hackmann

GOODE, Special Judge An alternative writ of mandamus was issued June 12,1917, by the judge of the circuit court of Cole County, commanding the respondent, as State Auditor, to sign and deliver to the relators, Kelly & Kelly, a warrant for twenty thousand dollars upon the Capitol Building Fund of the State, or to show cause in term time, for refusing. The writ was granted upon.a petition containing these averments: The petitioners were partners under the style of Kelly & Kelly; the sum of twenty thousand dollars was appropriated to them out of the Capitol Building Fund by the General Assembly at its last session to pay money due petitioners by the State of Missouri; said appropriation was part of the General Appropriation Act and was approved by the Governor; prior to his approval petitioners agreed with him to reduce their claim to twenty thousand dollars; petitioners were and are willing to accept the State Auditor’s warrant for that sum in satisfaction of the appropriation, had so advised him and had demanded that he issue a warrant in petitioner’s favor in accordance with the terms of the appropriation, but he had refused. The item of the General Appropriation Act of April 11, 1917, on which this proceeding is based, reads: “There is hereby appropriated out of the State Treasury chargeable to the Capitol Building Fund the sum of twenty-five thousand dollars for the relief of Kelly & Kelly of Kansas City, Missouri, in full pay [642] ment q£ their claim against the State of Missouri for the plan submitted to the Board of Fund Commissioners for the sale of State Capitol bonds.” [Laws 1917, p. 21, sec. 59.] That part of the Appropriation Act is the only evidence in this case of an agreement between relators and the State and of what the agreement was. In his return to the writ the State Auditor set forth ten reasons why he had not issued the warrant in question and should not.be compelled to issue it. They were in substance as follows: A denial that the appropriation was to pay money due to the relators from the State, or that there was any money in the Capitol Building Fund to pay a warrant for the appropriation; Averments that the Cápitol Building Fund was in the nature of a trust fund, set apart by a vote of the people for these specific purposes, first, to build a new State Capitol; second, ’ to furnish and equip it; third, to purchase any additional premises that might be needed as a site for the Capitol; that, therefore, the Legislature was without power to divert any part of the Capitol Building Fund to other purposes; That as the Capitol Building Fund consisted of money derived from a liability contracted by the State, for the three purposes aforesaid, it could not be appropriated for any other than those, purposes, or to repay the debt of the State, without violating Section 20 of Article 10 of the State Constitution. This section of the State Constitution provides, in effect, against the use of any money arising from a loan, debt or liability contracted by the State, for any purposes other than that for which the debt was contracted, or for the repayment of the debt; That the appropriation for relators was contrary to the provisions of Section 48 of Article 4 of the Constitution, which reads: “The General Assembly shall have no power .to grant, or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or [643] contractor, after service has heen rendered or a contract has been entered into and performed in whole or in part, nor pay nor authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.” That the appropriation amounted to a grant to the relators of public money, in violation of the inhibition of Section 46, Article 4, of the State Constitution; That the appropriation impaired the obligation of contracts previously made by the State, for the construction and furnishing of the Capitol, and finally, Averments to the effect that the claim of relators for which the appropriation was made, did not arise under a contract made with the State Capitol Commission Board, nor was the relators’ demand allowed and certified by said board, in conformity to the act creating the board. [Laws 1911, p. 108 et seq.] A replication in the form of a general denial of the return was filed. At the hearing in the circuit court it was admitted there was then in the Capitol Building Fund $707,844.87; that said fund (i. e. the amount then in it and what had been in it)consisted of the proceeds of the sale of bonds of the State authorized by act of the General Assembly (see Laws 1911, pp. 406-417), together with funds placed in it under Section 16-A. of the Act of the General Assembly relative to contingent and incidental expenses for years 1915-1916 (Laws 1915, p. 9). It was admitted the additional sum of $27,500 had been transferred to the Cápitol Building F'und pursuant to said Section 16-A (Laws 1915, p. 9) and that $21,000 derived from the rent and sale of buildings on the Capitol grounds had been added. There were admissions relative td submitting to the popular vote the Act of March 16, 1911 (Laws 1911, pp. 416-417), providing for contracting a liability of the State through an issue of bonds to a maximum of three and a half million dollars, to provide [644] means to build a capítol, furnish and equip it and purchase additional premises for it; that the act of submission was approved March 24, 1911 (Laws 1911, pp. 250-254); and that the bond issue, for the purposes mentioned, received a two-thirds majority of the voters voting at the election. Evidence was put in by the respondent to show contracts the State was under for building the Capitol and the amount of the State’s liability under them; also that other contracts would be necessary in the future in order to complete, light and furnish the Capitol. The trial court found that when the Appropriation Act was approved and at the time of the hearing, there was enough money in the Capitol Building Fund to pay a warrant for $20,000 in favor of relators, and that, too, without impairing the obligation of any contract in existence when the appropriation was approved or when the cause was heard. The alternative writ was quashed in the circuit court and relators appealed. By way of further explanation we state that the issue/ of State bonds to construct, furnish and equip a new capítol building was authorized by an Act of the General Assembly approved March 6, 1911. (Laws 1911, p. 416). That act provided for the contracting of a liability of the State by an issue of bonds, not to exceed three and one-half millipn dollars, for a submission of this act to a vote of the people as required by Section 44, Article 4, of the State Constitution, prescribed the denominations of the bonds, mode' of authenticating them, and further provided as follows: “Said bends, when so prepared and executed under the supervision of the State Board of Fund Commissioners, shall be sold to the best advantage by said board, but not for less than par. The proceeds of said sale or sales shall constitute a fund to be designated as the Capitol Building Fund, and shall be applied exclusively to the building of a new state capítol at the present seat of government of the State, including the furnishing and other equipment of said building and the purchase by [645] the State of additional capitol premises adjoining those now owned by the State;” and further that “contract or contracts for expenditures to carry out the purposes of this act in excess of said three and one-half millions of dollars, with interest collected thereon, shall, to tbe amount of said excess, be illegal and void and forever non-payable.” An act submitting the foregoing act to a popular vote was approved March 24, 1911 (Laws 1911, p. 250). Withastate The proposition mainly relied on by respondent as a defense is, that the appropriation to pay the claim of relators violated that clause of the State Constitution quoted above, which forbids the General Assembly to pay or authorize the payment of a claim created against the State under any agreement or contract made without express authority of law, and declares all such unauthorized agreements and contracts shall be null and void. The claim of relators is of a -kind that could only accrue from ’ a contract, and whatever may have been the contract out of which the claim arose, it must have been made between the: relators and the State acting through the Board of Fund Commissioners, as it is apparent from the recital in the Appropriation Act that the purpose of the particular item was to pay relators for a plan for the sale of the State Capitol bonds, submitted by them to that board. Moreover, if a contract of the kind in question was possible, it could only have been made with the said board, which was the body of officials charged with the task of selling the bonds, by the act that authorized them: ,. There are two inquiries to be answered in determining whether or not the claim of relators was created against the State under a valid agreement. First, is there proof in the record that an agreement was entered into by the relators with the Board of Fund Commissioners for the former to submit a plan to sell the bonds? Second, if there is, did the board possess express authority of law to make the agreement, or was it a mere nullity for lack of authority? [646] In eases where the courts have reserved the right to make an independent finding of facts when the constitutionality of a statute turned upon, a question of fact, the prior finding of the Legislature was treated as prima-facie true. [N. Pac. Ry. v. N. Dakota, 216 U. S. 579; Judson, Interstate Commerce (3 Ed.), p. 224.] And there is abundant authority in this State and elsewhere for holding that a finding by the Legislature of the existence of a fact upon which the right to enact a law depended, is not to be further inquired of by the courts. [Ex parte Renfrow, 112 Mo. 591; and cases cited in opinion.] So we will take it as true that an agreement was made between the State and relators under which their claim arose. We should presume, too, that the Legislature passed upon the validity of the agreement before making the appropriation in controversy. Nevertheless, that question remains judicial, the legislative decision being so far respected that the act passed to pay the claim based on the contract, will be upheld by the court, unless deemed to be a clear violation of the Constitution. The constitutionality of statutes, other than those of a political character, must be judicially determined, when called into, question in litigation, as has been often decided in cases like the present. [State ex rel. v. Walker, 85 Mo. 41; State ex rel. v. Dierkes, 214 Mo. 578, 587.] Proceeding to the inquiry whether it was possible for the-contract in controversy to have been made by express authority of law, we note that the Board of Fund Commissioners is composed of the Governor, Auditor, Treasurer and Attorney-General, and that it is part of the Treasury Department, created by an act of the Legislature approved March 25, 1891. [Laws 1891, p. 16.] This act, as amended in a few particulars, constitutes. the 3rd Article of Chapter 121 of Revised Statutes of 1909. One amendment was made to provide a plan to-.refund the State Capitol bonds (Laws 19.13, p. 772); but we do not consider the change thus made as controlling the decision of the point in this case which arises on the act. The 13th section of the Law as it [647] was passed in 1891 and which is now Section 11900, Revised Statutes 1909, reads as follows:. ' “The Board of Fund Commissioners are hereby authorized and empowered to enter into contracts, and to refund any part of the bonded indebtedness of the State, whenever they can do so to the advantage of the State in reducing the rate of interest of the outstanding State bonds, and to this end they are authorized and empowered to cause new bonds to be prepared, issued, sold or exchanged for outstanding bonds of such denominations, dates and rate of interest as they may deem proper, payable at such times and places, principal and interest, as they may agree upon as being to the best interests of the State: Provided, always, that the rate of interest of said bonds to be issued shall not exceed three per centum per annum, and that such ‘refunding bonds’ fall due, or become redeemable at the pleasure of the State, at such dates as will permit the redemption or payment, at par, of at least two hundred and fifty thousand dollars of the bonded debt of the State every year, until all of the bonds of the State are paid off. All bonds or State certifications of indebtedness hereater issued by this State under the direction of the Board of Fund Commissioners shall be signed by the Governor, countersigned by the Secretary of State, with the great seal of the State attached, and the coupons for interest shall have a facsimile of the State Treasurer’s signature engraved thereon. The bond shall be registered by the State Auditor, to which he shall certify on each bond, and authenticate such registration by his signature and his official seal attached.” That section was altered, as stated, in 1913, by inserting certain provisions about the State Capitol bonds. The question is whether the clause authorizing the Board of Fund Commissioners to enter into contracts, conferred on the board the right to mate contracts regarding any duty that might be committed to them by law, or only regarding the refunding of State bonds. Most of the section relates to refunding, but in a prior section (now See. 11890, R. S. 1909) it was pro [648] vided that the Fund Commissioners should do “and perfom all such acts and things as may be required of them by law,” and various duties other than refunding duties were required of them; and in fact, they were charged with a supervisory control over the Treasury Department. The first clause of the 13th section (now Sec. 11900), which empowered the Fund Commissioners to enter into contracts, instead of reading that the board was authorized and empowered to enter into contracts to refund, etc., reads that they are “authorized and empowered to enter into contracts and to refund,” etc. The only reason for thinking the right to contract was given solely to enable the board to discharge their refunding duty is, that the right was given in the same part of the act that provided for those duties. But the Legislature contemplated from the first that the ■board should perform other duties, and duties which, as may be seen by reading the act, would call for agreements; for instance, the selection of a bank as fiscal agent for the State (3 R. S. 1909, sec. 11894). If it is held that the power of the commissioners to contract, given in the 13th section, was meant to apply only in refunding cases, then on the maxim that the mention of one thing inferentially excludes others, it could be argued that the commissioners were without power to make contracts, whatever the necessity for them, as to any other task that might be imposed on them by law. The reasonable construction of the act is tjiat the Legislature intended to vest this body of officials with authority to enter into contracts according to their judgment, not regarding any public matter whatsoever, but regarding any that might be entrusted to their management — to enter into such contracts as would enable them to perform, not only their refunding duties, but their other duties as well. As the selling of the Capitol bonds was given in charge to the Board of Fund Commissioners, it follows that the contract in question, entered into in connection with the effort to sell, was made by express authority of law, unless the right of the Fund Commissioners to contract in the particular [649] matter was withdrawn by later statutes; and there is .none claimed to have that effect, except those that provide for the Capitol bond loan; particularly the clause requiring the bonds to be sold for not less than par. In the case of Church v. Hadley, 240 Mo. 680, decided in 1911, this court, without passing upon the effect of said Section 11900, Eevised Statutes 1909, held the Fund Commissioners had express authority to contract for help to sell the Capitol bonds, by reason of these facts: first, that their efforts .to sell without help had demonstrated it was impossible to do so; second, the urgency of the need to sell in order that the State’s archives might be safely housed. The 'two opinions in the case were both concurred in by a majority of the court, and the gist of them was that an emergency existed which created a necessity for help in selling the bonds, “and that such necessity is within the intendment of the statutes,” namely, the statutes which authorized the bonds. The decision was based both on an interpretation of those statutes and on adjudications in other states wherein the right of officials to agree to pay a commission for the sale of public securities was held to have been conferred by laws authorizing them to sell. [Armstrong v. Village of Fort Edward, 159 N. Y. 315; Mayor, etc. v. Sands, 105 N. Y. 210; Manitou v. First National Bank, 37 Colo. 344; State v. West Duluth Land Co., 75 Minn. 456.] It would be difficult to sustain the proposition that at common law, an agent appointed to sell property, as the Fund Commissioners were, was empowered merely by virtue of his appointment, to bind his principal by contracts with third persons to help him sell, even if it should turn out that he could not sell without help. [2 Cor. Jur., p. 595, and note 13; 9 Cor. Jur. p. 519, and note 95; Mechem, Agency, sec. 357; Atlee v. Fink, 75 Mo. 100; Carroll v. Tucker, 2 N. Y. Misc. 397.] Nor did the decision in Church v. Hadley announce as a rule of general application, that agents might do this; but, instead, took pains to declare that the decision stood on all the facts of the particular case [650] (1. c. 706). The exact question determined therein was as to the right of the Fund Commissioners to agree to pay a broker’s commission for sale of the bonds, whereas here the question is of their right to contract for a plan to sell the bonds. In our judgment, the difference between the two agreements does not call for a different rule of decision in the present case, inasmuch as both agreements were expedients resorted to by the Fund Commissioners as necessary, in their judgment, to enable them to perform their duty to sell the bonds — the identical issue of bonds and the same conditions existing in each instance. mcid?nty The argument is pressed at this point that in Church v. Hadley, the court was not dealing with an appropriation to pay a claim against the State, and was neither bound to nor did consider the provision of Section 48, Article 4, of the State Constitution, which forbids the payment of any claim against the State created under a contract made without express authority of law. It is true, there was no discussion in the opinion of that clause of the Constitution, but the court carefully inquired as to the authority of the Fund Commissioners to agree for the help of brokers, and found such authority was part of the express grant of power to the commissioners to sell the bonds. It is appropriate to refer here to cases which support that doctrine by analogy and to others which support it by judgments directly in point. It will be conceded that the power of officials charged with a ministerial duty are strictly construed and that such broad meanings of the word necessary (namely, “convenient” or “proper”) as have been adopted in ascertaining from grants to legislative bodies what powers passed by implication as necessary to the effective use of those mentioned (M’Culloch v. Maryland, 4 Wheat. 316) have not been accepted (Mechem, Public Officers, secs. 511, 522; State v. Bank of Missouri, 45 Mo. 528, 538; Whiteside v. United States, 93 U. S. 247, 257). But tried by the strict meaning of “necessary,” some powers not mentioned will pass by a grant, just as an [651] appurtenant easement will go with a conveyance of an estate though not mentioned in the deed. [Kent v. Waite, 10 Pick. 138.] A statutory appropriation of funds to a Highway Commissioner, wherewith to build roads, expressly carried the right to. purchase materials and tools for use in building, though nothing was said in the statute about purchases for that purpose, whereas they were directed to be made for the repair of roads. This was decided in construing a constitutional clause like the one in hand. [Townsend v. Gash, 267 Ill. 578.] And dealing with the same provision, 'it was held that supervisiors charged to inspect the hooks and accounts of county officers were expressly given.the right to hire an expert accountant, for the reason that, as they were not experts, it was impossible otherwise for them to-perform their task. [Harris v. Gibbins, 114 Cal. 418.] Supervisors appointed to examine and allow accounts are thereby empowered to reject accounts, and a commission to erect a public building' carries the right- to engage for labor and material. [People v. Supervisors, 9 Wend. 508; Danolds v. State, 89 N. Y. 361] Implied or incidental powers like those examples, can be derived from an express grant without extending the word “necessary” beyond its usual meaning of an indispensable condition or requisite; and, as- the implied powers are considered to have been embraced in the grant, without ignoring the meaning of “express” in the law as the antithesis of “implied.” In the light of the foregoing arguments and. precedents, we think the constitutional provision in question was not adopted with the intention to abrogate the doctrine of the common law that incidental powers may accompany the grant of an express power, as necessary to the exercise of the latter; but to enforce the .rule of strict construction in determining what agreements public agents and officials are given the-right to make, in connection with the performance of some duty imposed on them, when such subsidiary- agreements are not mentioned in the law imposing the duty. [652] Moreover, though the court in Church v. Hadley did not determine the effect of the constitutional provision in hand, fipon the right-of the Fund Commissioners to contract for help in selling the bonds, it did‘¡determine, as- said before,, that they had the right to do this by virtue of the statute• which directed them to sell; and the court having so determined, it follows, of course, that an appropriation to pay for the assistance thus procured would not be unconstitutional, on the ground that the contract was made without express authority of law. of°Bonds. The second and third answers in the return present, in two phases, the proposition that the Capitol Building Fund consists of the proceeds of the Capitol bonds, which proceeds had been devoted by the statutes authorizing the bonds to the threefold purpose of erecting a State capitol, furnishing and equipping it and buying premises to enlarge the site; that the loan had been ratified by the voters of the State upon the condition that the proceeds of it should be thus used, and therefore a diversion of any portion of the proceeds to another use would be unlawful. In support of this proposition as a general rule of law, independent- of any constitutional inhibition, several decisions are cited, and as enforceing the same rule, a clause of the Missouri State Constitution. [In re State House Fund, 19 R. I. 391, 20 R. I. 707; Graham v. Horton, 6 Kan. 1. c. 353; Trustees v. Bailey, 81 Am. Dec. 194; Mo. Constitution, art. 10, sec. 20.] There are two answers to this contention, one of fact, the other of law. The evidence in the, record, and indeed the admission of the parties, show that the Capitol Building Fund, against which the appropriation for relators was made, has been increased from other sources than the proceeds of the - Capitol bonds, to an amount more than sufficient to discharge the appropriation. Besides, the effect of the decision in Church v. Hadley is that one. of. the purposes in.contemplation- when the Capitol loan was made, was payment of the necessary expense of floating the loan out of its proceeds, and therefore such [653] payment would not be an unlawful use of the proceeds. Money. Tbe language in which the General Assembly made the appropriation answers the contention that it was a grant of public money within, the inhibition of Section 46 of Article 4 of the Constitution. The appropriation purports to be made to pay a claim of relators against the State for a plan submitted to the Board of Fund Commissioners to sell the bonds; that is, to pay for a service rendered the State, and one for which, so far as the last cited section of the Constitution is concerned, the Legislature might pay as lawfully as any other. The restriction of the Constitution is laid upon gratuitous grants of public money. [Stevenson v. Colgan, 91 Cal. 649.] “fi0n The defense that the Auditor had no right to issue the warrant in question, because the State Capitol Commission Board had not allowed or certified relator’s claim, calls for an' interpretation of the act that provided for said board and defined it's duties and the correlative duties of the State Auditor (Laws 1911, p. 108). The powers and duties of the board as given in the act relate to the acquisition of Capitol premises, selection of a place for the Capitol itself, contracts for its construction, and allowing and certifying to the Auditor bills in connection with those duties. The State Capitol Commission Board were not entrusted with the sale of the Capitol bonds, nor had they anything to do with claims or demands incident to their sale. Whatever expense might be incurred lawfully by the Fund Commissioners in selling, could be paid under a proper appropriation act, without previous action by the Capitol Commission Board. The defenses of respondent that there was no money in the Capitol Building Fund to .pay relators’ claim, and that to pay it would impair the obligations of contracts made by the State, are answered by the findings of the trial court, which are supported by the evidence. [654] ■ Allowance in Excess of Demand. [653] The demand of the relators made in their brief for relief to the amount of $25,000 cannot be allowed in the [654] face of their agreement with the .Governor to accept $20,000, and their petition for a writ to comPe^ the issuance of a warrant for the latter amount. This case is here on appeal, and it W011pi[ pg inconsistent with the theory on which it was tried and submitted below, to treat it as a proceeding to recover more than they originally demanded. The judgment is reversed and the cause is remanded with direction to the circuit court to reinsert it -in the docket and issue a peremptory writ of mandamus to the respondent to issue, a warrant in favor of relators in the sum of $20,000. Faris, Williams and Graves, JJ., concur; Walker J., dissents in separate opinion, in which Bond, C. J., and Woodson, J., concur.