266 Mo. 394 | Mo. | 1915
This is an original proceeding by mandamus, brought by relator as State Superintendent of Public Schools, to compel respondent, as State Auditor, to set apart and certify for payment to the relator for the use of the public schools of the State, the sum of $496,587.34, under the Act of February 12, 1915 (Laws 1915, p. 89), which required the State Auditor to ascertain and set apart one-third of the ordinary revenue for the support of the public schools.
The case is here upon the pleadings and an agreed statement of facts. The pleadings are conventional, and since no point is made touching them, we need not cumber the books with them.. The agreed statement of facts, which we apprehend will be found sufficient to convey an understanding of the conditions and issues, runs thus:
“It is agreed that during the fiscal year ending June 30,1915, there were paid into the State Treasury to the credit of the General Revenue Fund, the following sums from the different sources mentioned:
1. From county collectors (tax on real and per-
sonal property) ........■.....................$3,851,174 61
2. County foreign insurance tax................. 365,449 17
3. Private car tax .............................. 9,870 90
4. Express companies’ tax ..................... 44,737 68
5. Notaries’ commissions ...................... 12,336 00
6. Land Department fees ....................... 556 22
7. Fees earned in office of State Auditor......... 8,380 88
8. Fees earned by office of Secretary of State---- 9,719 30
*400 9. Incorporation tax (fees paid by corporations upon their incorporation and upon their increase of capital stock)...................... 87,017 50
10. Fees from Excise Commissioner of city of St.
Louis ...........................'............ 42,462 00
11. Proceeds of sale of beer stamps .............. 460,858 27
12. Interest received from State depositaries...... 147,223 35
13. Sale of oil stamps (being fees from oil inspections) .................’..................... 150,466 80
14. Interest on deposit of fees by St. Louis Excise
Commissioner ...........".................... 47 17
15. Interest on deposit of Fish Commission....... 18 74
16. Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City
Court of Appeals ............................ 3,573 62
17. Fees collected by Excise Commissioners of St.
Louis county ............................... 3,713 02
18. Receipts from sale of laws ................... 2,018 50
19. Receipts from old bond and coupon account____ 15,270 43
20. Receipts from amounts refunded ............. 36,032 06
21. Receipts from fines assessed against lumber
companies for violation of Anti-Trust Act...... 252,728 65
22. Receipts from fees of Poultry Experiment Station ............................■............. 5,280 96
23. Receipts from fees of Warehouse and Grain
Department .................................. 127,123-37
24. Moneys earned by State Auditors’ Examiners... 6,702 08
25. Receipts from insurance on Federal Soldiers’
Home ....................................... 2,308 92
26. Receipts from sale of old furniture............ 165 00
27. Receipts for Itinerant Vendors Licenses...... 25 00
28. Receipts from fees of Bureau of Labor........ 2 07
29. Receipts from fees of Board of Agriculture____ 25 00
30. Receipts from fees of Fruit Experiment Station 299 72
31. Receipts from Fish Commissioner’s refund..... 301 05'
32. Transferred from Insurance Department. Fund... 125,000 00
33. Transferred from Factory Inspection Fund..... 6,271 93
34. Transferred from Text-Book Fund.......____ 990 00
35. Receipts from fees of Public Service Commission 36,946 87
“The aggregate of the items enumerated above, numbered 1, 2, 3 and 4, is $4,271,232.36. The respondent, State Auditor, did on July 3, 1915, set apart and certify to the relator one-third of said sums, 'that is to say, $1,423,744.12, as the total amount to be ap*401 portioned by relator for tbe benefit of tbe public schools of the State.
“Tbe respondent, as State Auditor, and bis predecessors in said office, bave continuously annually for many years prior to tbe present year, set apart and certified to tbe relator and tbe predecessors of tbe relator in tbe office of State Superintendent of Public Schools, in addition to one-third of tbe moneys derived from tbe first four sources above mentioned, one-third also of tbe moneys derived from tbe following sources, to-wit:
5. Notaries commissions.
6. Land Department fees.
7. Fees earned in office of State Auditor.
8. Fees earned by office of Secretary of State.
9. Incorporation tax.
10. Fees from Excise Commissioner of city of St. Louis.
11. Proceeds of sale of beer stamps.
12. Interest received from State depositaries.
13. Sale of oil stamps.
14. Interest on deposit of fees by St. Louis Excise Commissioner.
15. Interest on deposit of Fisb Commission.
16. Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals.
17. Fees collected by Excise Commissioners of St. Louis county.
“That tbe moneys derived from said sources, numbered 5 to 17, both inclusive, and paid into tbe State Treasury to tbe credit of tbe General Revenue Fund during tbe year ending June 30, 1915, amounted in tbe aggregate to $926,372.87, no portion of which has been set apart and certified by respondent as State Auditor to tbe relator, for tbe year ending June 30, 1915.
“Neither tbe respondent, as State Auditor, nor any of bis predecessors in said office, bave heretofore set apart or certified to the relator or bis predecessors in the office of Superintendent of Public Schools, any portion of the moneys derived and paid into tbe State Treasury to tbe credit of tbe General Revenue Fund from tbe following sources:
*402 18, Receipts from sale of laws.
19. Receipts from old bond and coupon account.
20. Receipts from amounts refunded.
21. Receipts from fines assessed against lumber companies for violations of Anti-Trust Act.
22. Receipts from fees of Poultry Experiment Station.
23. Receipts from fees of Warehouse and Grain Department.
24. Moneys earned by State Auditors’ Examiners.
25. Receipts from insurance on Federal Soldiers’ Home.
26. Receipts from sale of old furniture.
27. Receipts from Itinerant Vendors’ Licenses.
28. Receipts from fees of Bureau of Labor.
29. Receipts from fees of Board of Agriculture.
30. Receipts from fees of Fruit Experiment Station.
31. Receipts from Fish Commissioner’s refund.
32. Transferred from Insurance Department Fund.
33. Transferred from Factory Inspection Fund.
34. Transferred from Text-Book Fund.
35. Receipts from fees of Public Service Commission.
‘ ‘ Some of the laws from which these moneys were derived and paid into the State Treasury are of comparatively recent enactment, as will he pointed out in the briefs to he filed.
“The relator here expressly waives and abandons any claim to a setting apart or a certificate to him by respondent of any part of the moneys derived from the sources now to be mentioned and already referred to in this statement by numbers, as follows:
19. Receipts from old bond and coupon account.
20. Receipts from amounts refunded.
. 25. Receipts from insurance on Federal Soldiers’ Home. *
26. Receipts from sale of old furniture.
27. Receipts from Itinerant Vendors’ Licenses.
31. Receipts from Fish Commissioner’s refund.
And it is agreed that the relator’s petition be taken and regarded as amended by striking out any claim to a setting apart of moneys derived from any of the sources last mentioned.
“After excluding from consideration the moneys derived from the six sources last mentioned (claim to which is now abandoned), the moneys derived from the other sources mentioned (no part of which has ever
“The moneys paid out for salaries and expenses of the Warehouse and Grain Department during the period mentioned, were $96,491.42. The receipts of said department were $127,123.37.
“The sum,paid out of the State Treasury for the support (salaries and expenses) of the Public Service Commission during the year mentioned were largely in excess of the fees paid into the State Treasury and earned by said commission. .
“The same is true as to the proceeds of the sale of laws; the expense of publishing the laws being greater than the amount received from the sale.
“The expense of maintaining the Poultry Experiment Station, which is paid out of the State Treasury, is largely in excess of the fees received on that account.
“The same is true of salaries and expenses connected with the Department of L.abor; the Board of Agriculture and the Fruit Experiment Station; in each case the expense of maintaining each one of these departments, which is paid out of the State Treasury, is in excess of the fees received from them respectively.
“The amount of the salaries, wages and expenses of the State Auditors’ Examiners, which were paid by the State, was substantially the same as the moneys paid into the State Treasury on account of the services of said examiners.
“The one hundred and twenty-five thousand dollar ($125,000) item, numbered 32 in this statement, ‘Transferred from Insurance Department Fund,’ was so transferred by virtue of section 55a, an act with the heading: ‘Appropriations; contingent and inci
“The Attorney-General wrote to the respondent, the State Auditor, the opinions set out in the return of the respondent.
“It is agreed that, prior to the filing of the petition for an alternative writ of mandamus, demand was made by relator upon respondent for the relief herein sought, and the same was refused; and that the petition shall be considered and taken as amended so as to show such demand and refusal.
“In the cases in which the figures shown in the petition as to the amount of moneys received from any source do not correspond with the figures contained in this agreed statement of facts, the petition is to be considered as amended to correspond to the agreed statement of facts.
“If the court shall be of the opinion that as to moneys derived from some of the sources mentioned in the relator’s petition and claimed by him therein (and not herein waived and abandoned by him), the relator’s, claim as made in his petition to a setting apart and certification to him of a part thereof can-' not be maintained, and shall be of the opinion that as to some of said moneys no part thereof should be set apart or certified by respondent to relator, it is agreed that as to such moneys and the claim, thereof the petition of the relator shall be taken and considered as amended by striking out all claim on account of any said moneys, and the relator hereby asks that his petition be considered and regarded as amended in that respect; so that if the court shall be of the opinion that the relator is entitled to any part of the relief which he asks, he shall not be denied all relief for the reason that he has asked for more than he is entitled to.”
''f6Word “Revenue.”
“There is hereby appropriated out of the State Revenue Fund, to be applied to the support of the public schools of the State, one-third of the ordinary revenue paid into the State Treasury for the fiscal years from July 1, 1914, to June 30, 1916,'which amount of said fiscal year apportionment shall be ascertained and set apart to said school moneys by the State Auditor, as is or may hereafter be provided by law.”
It is likewise apparent that the controversy in its last analysis resolves itself into the single question: What is the meaning of the two words ‘ ‘ ordinary revenue,” as these words are used in the Legislative act, supra1
It is fairly clear, we think, that the word “revenue” is modified or limited by the use of the word “ordinary.” The effect of this limitation we will discuss hereafter. Turning to the lexicons, of the language we find that the word “revenue” means: “The annual yield of taxes, excise, customs, duties, rents, etc., which a Nation, State, or municipality collects and receives into the treasury for public use.” [Webster’s Int. Diet.] “The total current income of a government, hoioever derived, subject to appropriation for public uses.” [Standard Diet.] “The annual income of a State derived from the taxation, customs, excise, or other sources and appropriated to the payment of the national expenses.” [Century Diet.]
In the ease of State ex rel. v. Ewing, supra, at page 712, the Supreme Court of Kansas, in an opinion by Judge Brewer, sometime 'judge of the Supreme Court of the United States, said:
“The Act of 1879 is entitled, ‘An act to provide revenue,’ etc. Now how broad is the term ‘revenue,’ and what may be included in such a title? Does it mean simply funds raised by taxation, and is the levying of taxes all that may be included? Such would seem to be -the views of the counsel for the State, but we cannot think them correct. One of the definitions given by Webster of the term is, ‘the annual produce of- taxes, excise, customs, duties, rents, etc., which a Nation or State collects and receives into the treasury for public use.’ The word is broad and general, and includes all public moneys which the State collects and receives, from whatever source-and in whatever manner. The general funds of this State are collected from taxes, but the Legislature might, in an act with such a title — at least, so far as any question of the form of the legislation is concerned — enact that they be collected from licenses, or from the sale of lottery tickets, or it might unite and enact that part might be collected from one source and in one manner, and the rest from another source and in a different manner. ’ ’
In the case of United States v. Bromley, supra, at page 96, the Supreme Court of the United States said:
*407 ‘ ‘ That the act which prescribes the offense charged is a revenue law, there would seem to be no doubt. In its title, it is declared to be an act to reduce the rates of postage, and for the ‘prevention of frauds on the revenue of the Post-Office Department.’ In its character • and object it is a revenue law, as it acts upon the rates of postage and increases the revenue by prohibiting and punishing fraudulent acts which lessen it. Under the Act of 1836, the revenue of the Post-Office Department is paid into the Treasury. Revenue is the income of a State, and the revenue. of the Post-Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports.”
The various definitions of this word as collated and summarized by Cyc. are as follows:
“The annual product of taxes, excise customs, duties, rents, etc., which a Nation or State collects and receives into the Treasury for public use; the yearly income of a government or a person natural or artificial, from the prbperty belonging to such government or person; the income of the State; the income which a State collects and receives into its Treasury and has appropriated for the payment of its expenses; the product or fruit of taxation; the income of the government arising from taxation, duties and the like; the annual profits of taxes, excise, customs duties, rents, etc., which a Nation or State collects and receives into the Treasury for public use; the income of the State or Nation derived from the duties and taxes and other sources for the payment of the national expenses.” [34 Cyc. 1691.]
Clearly the word “revenue” is broader than and includes taxation, as well as all other sources of municipal income. Revenue may be said to be the genus, while taxation is but a species. We are convinced
“In case the public school fund now provided and set apart by law, for the support of free public schools, shall be insufficient to sustain a free school at least four months in every year in each school district in this State, the General Assembly may provide for such deficiency in accordance ,with section eleven of the article on revenue and taxation; but in no case shall there be set apart less than twenty-five per cent of the State revenue, exclusive of the interest and sinking fund, to be applied annually to the support of the public schools.”
Further'light is cast upon this view by the provisions of section 6 of article 11 of the Constitution,
As words when used by the people in their Constitution, and by the Legislatures in their statutes; are ordinarily to be construed to be used in their ordinary sense (Sec. 8057, R. S. 1909), again recourse must be had to the dictionaries. From these we find the word “ordinary” means in its adjectival use as it occurs in the act before us: “According to established, order; settled, regular.’’ It is a synonym of “normal, common, customary, usual.” Its antonyms are: “Extraordinary, unusual, uncommon.” Taking the two words together, then, as they occur both in ■ our Constitution and in the appropriation act before us, and being guided by both their lexical and legal meanings, as well as the construction urged on us by the necessity for formulating a fixed and general rule, we conclude that the words “ordinary revenue,” as used in said section 6, article 11, of the Constitution and in the act under discussion (Sec. 1, p. 89, Laws 1915), mean: The regular and usual aimual income of the State, however derived, which is subject to appropriation for general public uses.
IY. Keeping this construction of the meaning of “ordinary revenue” before us, there is no mountain
If we should grant that as a matter of law, the words “ordinary revenue” are ambiguous — a thing we cannot bring ourselves to concede — we could, if the above conditions presented all of the facts and showed all of the difficulties, very readily (if there were not other and additional items in dispute) and speedily settle this case by invoking the well-recognized rule of statutory construction, that the meaning put upon the words of these many similar appropriation acts by the executive officers of the State upon whom the duty of interpretation falls, is of great weight, and absent other qualifying considerations, decisive (Schawacker v. McLaughlin, 139 Mo. 333; Darling v. Potts, 118 Mo. 506; Ross v. Railroad, 111 Mo. 18; Barber Asphalt Paving Co. v. Meservey, 103 Mo. App. 186); especially when coupled with the passive acquiescence of the Legislature for almost forty years. But othe^ items, to-wit, those numbered 18, 21, 22, 23, 24, 28, 29, 30, 32, 33, 34 and 35, are likewise in dispute here. As to these items we gather from the record and judicially notice from the public biennial reports of the State Auditor there has been no uniform practice in the office of the State Auditor. Some years some of these items last above were included,’ and in other years they, or some of them formerly taken into account, were omitted, and others of them used. So great was
In the light of this latter condition we cannot say that executive interpretation, long acquiesced in by the Legislature, aids us; for the very simple reason that there has been no uniformity in interpretation by such executive officers, and conduct seeming to be legislative acquiescence is found to be passive non-interference with changing methods wholly lacking uniformity. It is plain then that we are not aided and cannot be aided by invoking any rule of construction made for us by executive interpretation through ,a long course of years.
Y. It appears' from the record that moneys accruing from items numbered 1, 2, 3 and 4, to-wit:
1. From county collectors (tax on real and personal property);
2. County foreign insurance tax;
3. Private car tax;
4. Express companies’ tax;
Items numbered 19, 20, 25, 26, 27 and 31, to-wit:
19. Receipts from old bond and coupon account;
20. Receipts from amounts refunded;
25. Receipts from insurance on Federal Soldiers’ Home;
26. Receipts from sale of old furniture;
27. Receipts from itinerant vendors’ licenses;
31. Receipts from Fish Commissioner’s Refund;
Items numbered 5 to 17, both inclusive, to-wit:
5. Notaries’ commissions.
6. Land Department fees.
7. Fees earned in office of State Auditor.
8. Fees earned by office of Secretary of State.
9. Incorporation tax.
10. Fees from Excise Commissioner of city of St. Louis.
11. Proceeds of sale of beer stamps.
12. Interest received from State depositaries.
13. Sale of oil stamps.
14. Interest on deposit of fees by St. Louis Excise Commissioner.
15. ' Interest on deposit of Fish Commission.
16. Excess fees from cleric of Supreme Court, cleric of St. Louis Court of Appeals, cleric of Springfield Court of Appeals, cleric of Kansas City Court of Appeals.
17. Fees collected by Excise Commissioners of St. Louis county.
are, however, in dispute here. The agreed case as to them shows that both respondent and his predecessors in the office of State Auditor have for many years uniformly, until this year, set apart one-third of all State income arising from each of the last above several items, under authority conferred by appropriation acts couched in precisely similar verbiage to that here under discussion.
Items numbered 18, 21, 22, 23-, 24, 28, 29, 30, 32, 33, 34 and 35, to-wit: •
18. Receipts from sale of laws.
21. Receipts from fines assessed against lumber companies for violations of Anti-Trust Act.
’22. Receipts from fees of Poultry Experiment Station.
23. Receipts from fees of Warehouse and Grain Department.
24. Moneys earned by State Auditors’ Examiners.
28. Receipts from fees of Bureau of Labor.
29. Receipts from fees of Board of Agriculture.
30. Receipts from fees of Fruit Experiment Station.
32. Transferred from Insurance Department fund.
33. Transferred from Factory Inspection fund.
34. Transferred from Text-Book Fund.
35. Receipts from fees of Public Service Commission.
“The examiner making such examination shall make out his account under oath and forward same in duplicate to the State Auditor, one copy of which shall be filed in the office of the State Auditor and the other forwarded by the State Auditor to the county court of said county or the proper officers of the city of St. Louis, who shall draw a warrant at their first meeting in payment of same and remit said amount to the examiner making the examination, addressed*420 to Jefferson City, Mo., in care of the State Auditor: Provided, that any of the regularly appointed examiners whose time is spent in the auditing of accounts of any county and receives a per diem of $7.50 for same, the amount so received from the county shall be deducted from the $2,000 authorized by this act to be paid to Mm from the public treasury, in order that in no case shall an examiner’s salary be in excess of $2000; and provided further, that whenever the per diem of any regular examiner exceeds the amount of $2000, the salary allowed him by this act, the excess, if there be any, shall be paid into the State Treasury to the credit of the State Revenue Fund. ’ ’ [Laws 1913, p. 767, sec. 5.]
In substantial accordance with the rules of construction which we have reached and laid down, we hold that this item should not be taken into account in this action, but net income therefrom, if any such there may hereafter be, should be included.
5. Notaries’ commissions;
6. Land department fees;
7. Fees earned in office of State Auditor;
8. Fees earned by office of Secretary of State;
9. Incorporation tax;
10. Fees from Excise Commissioner of city of St. Louis;
11. Proceeds of sale of beer stamps;
12. Interest received from State depositaries;
13. Sale of oil stamps;
14. Interest on deposit of fees by St. Louis Excise Commissioner;
15. Interest on deposit of Fish Commission;
16. Excess fees from clerk of Supreme Court, clerk -of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals;
17. Fees collected by Excise Commissioners of St. Louis county;
both inclusive, are to be taken into account and included in “ordinary revenue” within the purview of the statute in dispute; for the reasons that said
That items 18, 22, 28, 29, 30 and 35, to-wit:
18. Receipts from sale of laws; •
22. Receipts from fees of Poultry Experiment Station;
28. Receipts from fees of Bureau of Labor;
29. Receipts from fees of Board of Agriculture;
30. Receipts from fees of Fruit Experiment Station;
35. Receipts from fees of Public Service Commission;
and the net income of fees from items 23 and 34, to-wit, the Warehouse and Grain Inspection Department, and the Text-Book Filing Fund, are likewise to be so included. What we say -last above forms, we think, a sufficient reason for so including items 18, 22, 28, 29, 30 and 35. Our views and reason for excluding the gross income, but for including the net income, of the last above several items numbered 23 and 34 have been herein before set out at length.
All other items in dispute, since they do not fall within the purview of the definitions and conclusions reached by us and discussed either specifically or generally hereinabove, are to be excluded. While on first blush an apparently though not really arbitrary rule may seem to be invoked as to such items as come into the general revenue fund of the State biennially only (e. g., Factory Inspection Fund), or biennially, but intermittently, and by virtue of an express special act (e. g., transfer from Insurance Department Fund),
Amending the petition (which by stipulation stands as and for the alternative writ, issuance of which was waived), as provided by the agreed facts, we eliminate all items except as last above enumerated and found to be within the purview of the appropriation act and award the writ as to such items.
It is therefore our order that our peremptory writ go for the sum of $334,189.31, being the aggregate of