State Ex Rel. Kessler v. Hackmann , 304 Mo. 453 ( 1924 )

Original mandamus proceeding by the State Board of Examiners for Barbers, to compel the State Auditor to audit an account of the board. The issuance of the alternative writ was waived by respondent, who filed a demurrer to the petition. Thus the questions for determination here are presented in the allegations of the petition for the writ.

The petition, after reciting the official status of the members of the board and their duties prescribed by law, states that on the first day of December, 1923, the board made out and certified to the State Auditor, respondent, a detailed statement of expenses incurred by the board during the month of November, 1923, requesting said State Auditor to issue a warrant for the payment of said accounts out of the funds in the hands of the State Treasurer, arising from fees collected by the board under the statute providing for the same; that respondent refused, and still refuses, to issue a warrant in payment of the accounts.

I. The relators base their right to a peremptory writ upon the provisions of the Act of 1921, Section 4, Laws 1921, page 157, which is as follows:

"Sec. 4. Compensation of members of board — shall file reportwith Auditor. The remuneration of each member shall not exceed the sum of five dollars per day while engaged in their duties as such, exclusive of the necessary traveling and other expenses, to which they shall also be entitled: Provided, however, that all moneys collected by the board or its treasurer shall be paid into the State Treasury, there to constitute a fund for the purpose of carrying out the provisions of this act. The State Auditor is hereby directed to issue his warrants monthly, upon the State Treasurer out of this fund only, for the payment of the salaries, office and all other necessary expenses of said board. A detailed statement of the expenses incurred by the board, approved by the secretary of said board, shall be filed with the State Auditor before warrants are drawn for the payment of same by the State Auditor, and any surplus remaining in said fund annually after payments above authorized shall be paid into the public school fund of this State."

The relators call attention to the provision of that section which creates, out of the fees collected by the board, a fund for carrying out the provisions of the act, with directions to the State Auditor to issue warrants monthly to the State Treasurer for salaries and other expenses of the board to be paid out of that fund. It is claimed that the Auditor must issue warrants for such expenses on accounts properly presented, without a special appropriation by the Legislature for the purpose.

The argument is that the fund created by the Legislature is in no sense a public fund, at least not available for any general purpose; that it cannot be appropriated for any other purpose than the payment of the salaries and expenses incurred by the board, until all that expense is met; then the balance may be paid into the school fund. Since that is the case, a special appropriation by the Legislature setting apart the fund, or any part of it, for the purpose mentioned would be entirely superfluous.

The relators give a history of the legislation relating to the Board of Examiners for Barbers, showing that before the Act of 1921 the moneys collected by the board were not paid into the State Treasury. There was no way to keep track of the money which the board received and disbursed; the reason for having the money paid into the State Treasury was that a check might be kept upon the receipts and disbursements. The relators, no doubt, are correct in that reasoning as to the purpose of the act.

II. Section 43, Article 4, of the Constitution begins with this provision:

"All revenue collected and moneys received by the State fromany source whatsoever shall go into the treasury, and the General Assembly shall have no power to divert the same, or to permit the money to be drawn from the treasury, except in pursuance of regular appropriations made by law."

Section 19, Article X, of the State Constitution, provides: "No moneys shall ever be paid out of the treasury of this State, orany of the funds under its management, except in pursuance of an appropriation by law."

Relators cite the case of State ex rel. v. Wilder, where this court had under consideration funds of the Insurance Department, to show that the money in the Insurance Department was not public money in a sense that it was subject to be appropriated for any general purpose. That was a mandamus proceeding seeking to compel the State Auditor to issue a warrant in payment of an account incurred by the Insurance Department. In that case, however, there was an appropriation by act of the Legislature.

On the other hand, this court has held that a fund, raised by an act for a special purpose, could not be paid out of the State Treasury except upon an appropriation by an act of the Legislature. [State ex rel. Fath v. Henderson, 160 Mo. 190, l.c. 214; State ex rel. v. Gordon, 236 Mo. 142, l.c. 158.] In the case last cited the court had under consideration a fund for the support and maintenance of the Game Department. It was held that the creation of a special fund is not a continuing appropriation of the fund, or of any part of it, to pay accounts drawn against it. That the creation of the fund is one thing, and the appropriation of money to pay accounts against the fund is quite another thing. The language of the Constitution is unequivocal; it requires an appropriation before payment of money received by the State "from any sourcewhatsoever," The money collected by the board is received by the State; it goes into the State Treasury. To make it more specific, the requirement that an appropriation by the Legislature will be necessary before money can be paid out of the treasury of the State, it is applied, not only to state funds, but to "any ofthe funds under its management."

It is manifest that the intention of the Legislature in placing the funds in the hands of the State Treasurer was not only to provide official information as to its disbursement, but to keep the expenses of the department within the limits provided by the Legislature. The Legislature may be presumed to have had the constitutional restrictions in mind when they passed the act creating the fund.

The peremptory writ is denied. All concur, except Woodson,J., who dissents.