49 Mo. 604 | Mo. | 1872
delivered the opinion of the court.
This writ was sued out to compel the payment of a warrant upon the State treasurer, issued May 16,1861, by the auditor of public
The return admits the passage of the act, the issue of the warrant and the refusal to pay it, and proceeds to show, -in substance,' that previous to its passage a large number of citizens of the United States had risen in rebellion, to suppress which the President had called in service 75,000 men, and for their supply had' made a requisition upon the governors of the States; that Governor Jackson of Missouri expressly refused to obey the requisition, placed himself in open rebellion, called an extra session of the Legislature, who passed the act spoken of to aid him in waging war against the United States, under which act troops were raised for the purpose ; and that the warrant in question was drawn in payment for powder and munitions of war furnished in furtherance of said design. The return further states, in the nature of a second count, that at the date of the warrant, the United States were engaged in a war for the suppression of the rebellion, and and her troops were occupying portions of the State of Missouri; that Claiborne E. Jackson, governor, for the purpose of resisting said troops in their efforts to suppress the rebellion, called out the militia of the State, and with them did resist said troops and engaged in hostilities; that said warrant was drawn to pay for powder and munitions of war for the use of the militia so engaged in hostilities, which facts were known to the relator and to all through whom he claims title to. said warrant. The respondent further denies that there has remained in the treasury, or is now in it, any money appropriated to pay said warrant, or appropriated to said military fund. To this return the relator demurs.
The treasurer cannot be required to pay out the funds intrusted to his keeping unless appropriated; as the minister of the State, with no discretionary powers, he must disburse when and as, and
But the return is too plain to render even this necessary. It shows directly that the warrant in question was drawn for the purchase of powder and munitions of war, which were furnished to enable the troops raised by said Jackson to wage war against the United States. We may concede, though of that no opinion is called for, that the militia when called out was a lawfully organized State force; and yet the moment they turned their arms against the United States ’the cloak of legality fell, and they became as truly public enemies as any troops raised in the later stages of the war, and their arms must be deemed to have been so turned when the unlawful design was formed and preparations for actual hostilities were being made. The court will take notice of public events, and of the fact that when this warrant was issued, a body of this militia had been treated as enemies and captured by Federal troops, and also that other bodies subsequently engaged in actual war against the United States ; and thus color and support is given to the allegation that the munitions of war, forming the consideration of this warrant, were purchased for hostile purposes. This fact, in connection
I can hardly bring myself to seriously consider the claim made by counsel, that the State is under obligation to pay for muni-, tions of war knowingly furnished in aid of a -war against the United States, of which it is a constituent part, provided those who used them were first lawfully called into the field, and provided warrants, regular in form, were drawn for their payment. These facts do not tend even to make the claim a lawful one. An army becomes more than an enemy if it turn its arms against its own government, and those who knowingly furnish the means to aid its unlawful acts, although under the form of lawful supplies, participate in its acts. The fact that Governor Jackson was lawfully elected and qualified — that that portion of the State militia which he led into the Confederate service had been lawfully organized and called out — if that be conceded, furnishes no excuse or claim for compensation to those who knowingly supplied them with the means of engaging in hostilities, although a warrant upon the treasury was issued under the forms of law.
The demurrer will be overruled.
SEPARATE OPINION OF JUDGE WAGNER.
The question raised by the respondent in his return, as to the invalidity of the act of the Legislature, cannot, in my opinion, be inquired into in this proceeding. The law was passed by a regularly constituted body, with all the formalities prescribed by the constitution. There is no dispute about the fact that the members of the Legislature and the governor were legally elected and duly qualified, and, as such, were in the proper discharge of their legitimate functions. They were, then, competent to pass any law within the sphere' of the law-making power, and that law would be void only on the ground that it was in opposition to the constitution of the State, or violative of the constitution or laws of the United States. The motives which actuated the law-makers in the passage of the act, we are precluded from examining or looking into. The Legislature is a co-ordinate branch of the
The demurrer admits the facts stated in the respondent’s return, that the relator and those under whom he claims knew that the powder for Avhich the warrant Avas given was to be used for an illegal purpose, and that there is no money in the treasury appropriated for its payment. Judgment, then, must be entered overruling the demurrer and in favor of the respondent.