244 Mo. 695 | Mo. | 1912
Lead Opinion
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.
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
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
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
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.”
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
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
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.
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
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
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
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
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?
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
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.
Dissenting Opinion
DISSENTING OPINION.
I dissent from the opinión of our brother Lamm in this case. With his well-known versatile pen he has touched most splendidly all questions in the case except the one of the most vital importance, and that question is the right of the plaintiffs to maintain this suit at all. This question is discussed, but in glaringly general terms, leaving the meat and the law of the proposition practically untouched. When we say that he touches in splendid style other questions in the case, we do not mean to pass judgment upon the legal questions involved. We refrain from expressing such an opinion, because if what we think of the question which stands in the doorway of this case, is right, then the consideration of other questions would be mere obiter-ehsii thrown in with the wheat, or mud in what should be the clear waters of jurisprudence. We have at times muddied the waters (State ex rel. v. Hitchcock, 241 Mo. 433), but
I. In the $7000 item of this appropriation bill, which the lawmakers direct to be paid to Nolen, the Missouri Waterways Commission, as a commission, has no interest.- Such commission could not use a dollar of it, even if it be granted that Nolen can’t use it. When Sec. 63 of the Appropriation Act of 1911 (Law 1911, p. 18) is read carefully, it will be seen that there is an appropriation of $17,000' divided into two items (1) an item of $7000 to be under the control of and expended by Nolen, and (2) the remainder of $10,000 which may be used by the commission. Under the appropriation the commission could not use a dollar of this $7000, even though we concede that Nolen cannot use it.. Under no circumstances can the commission for its own purpose use more than what is left after deducting from the appropriation the alleged unlawful item.
In other words, if for any reason this appropriation item of $7000 is illegal and void, it was so from the beginning and as to that sum it is as if never appropriated. This item simply remains in the State Treasury as if never appropriated. If it could be said that it reverted at all, it reverts to the State and not to the Waterways Commission. Upon its very face the Appropriation Act expresses the legislative intent of never permitting this sum to pass through the hands of the commission itself. So that financially speaking the commission, as a body, has no interest whatever in this item. If the lawmakers overstepped constitutional bounds in appropriating it as they did, it remains as if never appropriated or segregated
If therefore it he said that the commission as a legal body is maintaining this action upon the theory that it is interested in the particular fund, such contention cannot be sustained.
Suppose w!e take the other side of the case and see how we would come out. Suppose the Missouri Waterways Commission should undertake to expend this $7000 for its own expenses. Suppose Gordon, as Auditor, refused to audit their accounts as against such $7000, and the commission brought mandamus to compel him to audit their expense accounts as against it, would- this or any other court say their permanent writ of mandamus would be granted? We think not, because the law says such part of the appropriation “must be used and is to pay the salary, traveling, hotel, clerical, stenographic, and other expenses of John H. Noleh.” The word used is “must,” which in this connection is mandatory and not directory.
If this court was hearing a mandamus to compel the State Auditor to pay out this $7000 to the commission, in interpreting the statute making the appropriation, in order to get the legislative intent, which is the basic principle of all statutory construction, we would have to consider the whole act, even though it be conceded that a portion of the act is violative of constitutional provisions. *
Black thus states the general rule in his work on Interpretation of Laws (2 Ed.), page 317: “In the construction of a statute, in order to determine the true intention of the Legislature, the particular clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning
In fact, there is no other reasonable way of finding the legislative intent as to the valid portion of a measure without considering the invalid portion. The legislative mind operated upon the whole subject of the entire act, and the legislative intent as to any particular portion of the act cannot be fairly gathered without considering the whole. So that in the supposed mandamus case we would, in determining what portion of the $17,000 could be used by the commission itself, have to consider the whole act. When we did, we would be forced to say that there was- no intention upon the part of the Legislature to allow the commission, as a body, to expend this $7000, and that for that reason the commission, as a body, had no interest in the $7000.
For the sake of the argument we may grant it to be true that the commission, as such, may sue as to things in which it has an interest, but that does not, authorize it to sue as to things in which it has no personal interest. I have the right to sue in replevin for a horse, yet if I state upon the face of my papers that I have no interest in or title to the horse, I cannot maintain the suit. So in the case at bar, grant it that the commission has the right to sue in any matter in which they are interestéd, yet they so state their case
From' this standpoint the ruling of the learned trial judge was right.
II. Point is made by the Attorney-General that the lawmakers did not authorize the Missouri "Waterways Commission to sue or be sued, and some persuasive authority and argument is presented along this line, but with the view we have expressed in our paragraph one, a discussion of this contention can well be omitted. If the Missouri Waterways Commission, as a commission, or as a body, has no interest in the subject-matter of this suit, then the demurrer was properly sustained, even though it be conceded that in proper cases such commission could sue and be sued. The law creating the commission is loosely drawn, its powers and duties more loosely defined, and we therefore desist from duscussing its right to sue in a case where it, as a commission, has a direct interest. It is sufficient to say, as we have said, that in this ease; the petition by it filed shows upon its face that it has no earthly interest in this fund of $7000, the sole bone of contention here.
III. If as a commission the plaintiffs have no right to maintain the suit for want of interest therein, then can they maintain it as taxpaying citizens? We say no in this case, because they have never sued in the capacity of taxpayers. As stated in the beginning, my brother touches this question lightly and only in' generalizations. No attempt is made to analyze the petition. It is assumed that the individual commissioners have sued in a dual capacity, i. e., (1) as a commission or legally constituted body, having a right to sue, and (2) as five individual taxpaying citizens, having a right to sue as such. Such is not the petition
Let us now go to the petition. The skill and ability of plaintiff’s counsel bespeak well-drawn pleadings. We feel that the importance of giving to the trial court a fair consideration of the case which he tried on demurrrer demands a setting out of the material parts of the petition, which parts, as “earmarks,”. characterize the instrument. We shall omit only immaterial portions. Such petition as taken from the files sent here from the circuit court reads:
William K. Kavanaugh, Alexander M. Dockery,
Cyrus P. Walbridge, David W. Hill and Edgar
C. Ellis, Constituting the Missouri Waterways
Commission ........................Plaintiffs, v. In the Circuit Court.
John P. Gordon, State Auditor, ...................Defendant.
Come now the above named plaintiffs and state that they constitute the Missouri Waterways Commission, having been as such duly appointed and commissioned by the Governor of the State of Missouri, and acting as such possessing all the qualifications prescribed by law, and that each of the said plaintiffs is a tax paying citizen of the State of Missouri; that the defendant, John P. Gordon, is the duly elected, qualified and acting Auditor of the State of Missouri.
Plaintiffs further state that under section 11827, Revised Statutes 1909, it is provided that in all cases of accounts audited and allowed against the State and in all cases of grants, salaries, pay and expenses allowed by law, the Auditor shall draw a war*729 rant on the Treasurer for the amount due, and that under and by virtue of said statute all accounts against the State on account of salaries and expenses payable out of the State revenue shall be audited and allowed by the Auditor and a warrant drawn therefor on the Treasurer, and that no moneys shall be paid out of the State Treasury on such account except upon such audit and warrant as drawn as aforesaid.
Plaintiffs further state and show to the court that the Legislature of the State of Missouri, constituting the Forty-Sixth General Assembly of said State, did appropriate out of the moneys in the State Treasury not otherwise appropriated chargeable to the State revenue fund, the sum of seventeen thousand dollars to the Missouri Waterways Commission, which said sum not otherwise having been appropriated is available for the purpose of said Missouri Waterways Commission upon vouchers and warrants properly audited and drawn in accordance with law. That in that part of the appropriation bill so appropriating said sum of seventeen thousand dollars for the purpose aforesaid, said General Assembly undertook illegally and in violation of law to limit the use of seven thousand dollars of the sum so appropriated as aforesaid to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of one John H. Nolen, as special agent of the State and the Missouri Waterways Commission and expert in the work of said commission, five thousand dollars of the same to be used to pay the salary of said John H. Nolen, to be paid in monthly installments, and two thousand dollars of said sum to be used to pay the traveling, hotel, clerical, stenographic and other necessary expenses of the said John H. Nolen, the same to be paid upon vouchers issued by said John H. Nolen and approved by the State Auditor.
Plaintiffs further state and show to the court that said part of said appropriation bill so attempting to limit seven thousand dollars of the said appropriation of the seventeen thousand dollars to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of John H. Nolen, as aforesaid, is unconstitutional, void and wholly without authority of law, for the following reasons, to-wit:
Here follow the four reasons why the proviso above mentioned is violative of constitutional provisions, and the petition proceeds:
Plaintiffs further' state that, constituting the Missouri Waterways Commission, it is their duty to conserve and expend the funds appropriated for the purpose of said commission, to the end that the greatest benefit and good may result to the state of Missouri, and to that end the Missouri Waterways Commission has heretofore from time to time requested the said defendant, John P. Gordon, to refuse to audit and approve the vouchers issued by*730 said John H. Nolen, on account of -his salary and expenses, as in said part of said appropriation bill attempted to be provided for, on account of the unconstitutionality and illegality of said part of said appropriation bill, but that said John P. Gordon, the’' defendant herein, has refused to accede to the request of the plaintiffs, constituting said board, and has, despite the request of plaintiffs as aforesaid, approved the vouchers issued by said John H. Nolen on the accounts, aforesaid, and the said vouchers so approved up to this time have been paid by the Treasurer of the State of Missouri, and that unless restrained from so doing the said John P. Gordon, Auditor of the State of Missouri, will continue to approve the vouchers so issued, notwithstanding the unconstitutionality and illegality of said part of said appropriation bill, and has advised plaintiffs of his purpose and intention so to do.
Wherefore the plaintiffs, constituting the Missouri Waterways Commission, being remediless by the ordinary processes of law, pray that the defendant, John P. Gordon, be perpetually restrained and enjoined from approving or auditing or allowing the vouchers issued by said John H. Nolen on account of salary or expenses, as in said part of said appropriation bill attempted to be created and allowed, and that the ¡said John P. Gordon, Auditor as aforesaid. be perpetually restrained and enjoined from drawing any warrant or warrants on the Treasurer of the State of Missouri on account of the vouchers drawn or prepared by said, John Hi. Nolen, as attempted to be provided in said part of said appropriation bill and that in the meantime a temporary injunction may De ailowed restraining and prohibiting the said defendant, John P. Gordon, from doing any of the acts aforesaid until the final hearing of this cause, and for ¡such other and further relief in the premises as to the court may seem meet and proper.
Can yon imagine two lawyers of the known ability of plaintiffs’ counsel drawing a petition for taxpaying citizens in these terms. When they entitle their case there is no thought of suing as taxpayers. After setting out the names in the title of the bill in equity, they thus designate the capacity in which they seek redress — “constituting the Missouri Waterways Commission,” not a word about taxpaying citizens; not a word indicating that they were suing in a dual or double capacity. Had they thought of suing in a dual capacity, and lawyer would have said, “Constituting the Missouri Waterways Commission and individually as taxpaying citizens.”
Now let us go to the body of the petition and see the purpose of the suit and from this seek a conclusion as to the capacity in which the parties plaintiff have sued. In one place in the petition it is said:
“Plaintiffs further state that, constituting the Missoiiri Waterways Commission, it is their duty to conserve the funds appropriated for the purpose of said commission, to the end that the greatest benefit and good may result to the State of Missouri and the citizens thereof, and to that end the said Missouri Waterways Commission has heretofore from time to time requested the said defendant, John P. Gordon, to refuse to audit and approve the vouchers issued by said John II. Nolen on account of his salary and expenses..
“Wherefore, the plaintiffs, constihiting the Missouri Waterways Commission, being remediless by the ordinary process of law, pray that the defendant, John P. Gordon, be perpetually restrained.”
How do they sue under the body of their petition? They have answered, and not this court. They say that they sue “constituting the Missouri Waterways Commission,” with a big “M,” a big “W,” and a big “C !” Going further, what is the purpose of the suit? They answer, and this court cannot change their answer. ' They say “it is their duty to conserve the funds appropriated for the purpose of said commission,” and that they as a body, as the commission, sue to the end of conserving the funds ($17,000 — not $10,000) for use by the commission, and no part of it for the use of Nolen. This part of the petition clearly shows that they seek relief as a commission, not as taxpayers. As .taxpayers it could make no difference whether the money was expended by the commission or by Nolen. In either event, as to them as taxpayers, it would
■ In another part of the petition it is said:
“Plaintiffs further state and show to the court that the Legislature of the State of Missouri, constituting the Forty-sixth General Assembly of said State, did appropriate out of the moneys of the State Treasury not otherwise appropriated, chargeable to the State Revenue Fund, the sum of seventeen thousand dollars to the Missouri "Waterways Commission, which said sum not otherwise having been appropriated, is available for the purpose of said Missouri Waterways Commission upon vouchers and warrants properly audited and drawn in accordance with law. That in that part of the appropriation bill so appropriating said sum of seventeen thousand dollars for the purpose aforesaid said General Assembly undertook illegally and in violation of law to limit the use of seven thousand dollars of the sum appropriated as aforesaid to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of one John II. Nolen, . . . Plaintiffs further state and show to the court that said part of said appropriation bill so attempting to limit seven thousand dollars of said appropriation of the seventeen thousand dollars to the payment of the salary, traveling, hotel, clerical, stenographic and other necessary expenses of John H". Nolen, as aforesaid, is unconstitutional, void and wholly without authority of. law, for the following reasons, to-wit.”
Not only do we have before us the petition as. we have thus discussed, but with our files is a certified copy of the appeal bond given below. In this they construe their own petition. They do not say that they as individual taxpayers are seeking redress. As such they give no bond. Note the language in the body of the bond. It reads:
“Know all men by these present: That we, William K. Kavanaugh, Alexander M. Dockery, Cyrus P. Walbridge, David W. Hill and Edgar C. Ellis, constituting the Missouri Waterways Commission, as principal, and Herbert S. Hadley, and Sam S. Haley as security, are held and firmly bound unto John P. Gordon, State Auditor, in the sum of five hundred*734 and no’ lOOths dollars. ’ ’
The italics are ours, as they have been in other quotations. When they sign the bond it is thus signed.
“William K. Kavanaugh, Alexander M. Dockery,
Cyrus P. Walbridge,
David W. Hill,
Edgar C. Ellis,
Constituting the Missouri Waterways Commission.
By Wm. K. Kavanaugh,
H. S. Hadley,
Sam S. Haley.”
We repeat what we said in the beginning, that it is clear that the idea of this suit being by individual taxpayers is an afterthought put in the briefs here, and one not sustained by the record. The petition nowhere says that they sue as taxpayers. It nowhere seeks a remedy for taxpayers, and no taxpayers pray for any relief. There is but one short clause that even mentions the words “taxpaying citizens” and that short clause we have italicized in the copy made of the petition herein. When the whole context of the petition is considered, this awkwardly placed' clause does not change the character of the petition. There is nothing to show that they sue in that capacity or seek redress in such capacity. Nor by the title or otherwise is it shown that five individuals sought to sue in a dual capacity, if such could be done.
To my mind the' learned trial judge rightfully passed upon the case before him, and our principal opinion passes upon a case which was never before him. In the principal opinion we bverlook .the fact that by trying to “preserve” the full fund of $17,000 for the uses and purposes of the commission, the plaintiffs themselves eliminate the idea of the taxpayers’ interest. Under 'the idea of preserving and expending the whole appropriation of $17,000, the burden as to
"We shall go no further. It will be time enough to discuss the right of a taxpayer to enjoin a State officer, when that kind of a petition is before us. Nor is this case on the point discussed ih our point one, governed by the case of State ex rél. Tolerton v. Gordon, 236 Mo. 142. In that case we had a clear legislative intent to appropriate a specified sum to the .game department. The whole sum was appropriated to that department, Here the Legislature makes a gross sum, but divides it into two items. If the lesser item is void for constitutional- reasons, such item has never been appropriated, and leaves as an appropriation only the remainder.
The judgment nisi was right, and should be affirmed.
Dissenting Opinion
DISSENTING OPINION.
I am satisfied that the General Assembly intended to appropriate only $10,000 for the use of the Missouri Waterways Commission, and that the $7000 item was appropriated for the use of Mr. Nolen for services which he was supposed to thereafter render. It is immaterial, therefore, so far as the Waterways Commission is concerned, whether the appropriation to Nolen was valid or invalid; if Nolen is not entitled to it, no one else is. I am also satisfied that the appropriation to Nolen is unconstitutional, for the .reason stated by Brother Lamm in