State Ex Rel. Holman v. Trimble , 316 Mo. 1041 ( 1927 )

In each of these four cases the relators seek to quash the record of the Kansas City Court of Appeals in affirming a judgment of the Circuit Court of Callaway County. Each case arose out of the same transaction and the same record applies to each. Each represents a claim against the county hospital funds of Callaway County, for work and labor performed in the erection of the county hospital, and other services in that connection.

The trustees of Callaway County hospital, February 8, 1922, issued a voucher to M.F. Bell for the sum of $887.63, and the County Court of Callaway County was requested to draw a warrant upon the County Treasurer in favor of Bell, for that sum. The county court refused to issue such warrant, and Bell filed a petition for mandamus in the Circuit Court of Callaway County, asking a peremptory writ to compel the said county court to issue it. The circuit court found for relator in that proceeding and awarded the peremptory writ. The judges of the county court thereupon appealed to the Kansas City Court of Appeals, where the judgment of the trial court was affirmed. That is case No. 27507.

Morris J. Holmes, and others, having a claim for the sum of $1332.11, pressed such claim in the same manner throughout, with the same result. That is case No. 27508.

J.P. Dreps, and others, had claim for $516.41, which went through the same course. That is case No. 27509.

Thomas W. Ball and others presented claim for $3500.58, in which the same proceedings were had. That is case No. 27510.

The Kansas City Court of Appeals in the Bell case wrote an opinion considering the issues at length. In each of the other cases the court filed a memorandum following the ruling in the Bell case. A determination of the issues in the Bell case determines them all.

The opinion of the Court of Appeals sets out at length the facts in relation to the establishment of a county hospital under Article 27, Chapter 111, Revised Statutes 1919. No question is raised as to the regularity of the proceeding by which the county hospital was established and bonds voted for the erection of the hospital. Trustees were properly elected, and were in charge of the hospital and its property. On August 20, 1919, the hospital trustees met with Mr. Bell, the architect, and opened bids for the construction of the hospital. The county had already voted a one-half mill tax. Bonds had already been regularly issued in the sum of $75,000 for building the hospital. It was found that the bids for the entire work exceeded the amount of the bonds, and another election was had and an additional half-mill tax was voted, and $37,500 in bonds were issued, making a total of $112,500 available for building the hospital.

It is claimed by relators that the trustees had no right to advertise for bids until all the funds were available. The contract for the work was then let to the lowest bidders for the different parts of the work — piecemeal contracts. Some material was purchased by the trustees without advertising for bids. All this, it is claimed, was contrary to the statute, and, relators claim, the hospital trustees had no right to issue vouchers for claims against the building fund; the county court had authority to investigate and determine whether the vouchers were thus properly issued, and having determined that the contracts were not let according to law there was no authority for issuing warrants in payment of the claims. Relators assert that the Kansas City Court of Appeals in affirming the judgment of the trial court went contrary to certain decisions of this court which will be noticed below.

On the other hand, the respondents claim there was no illegality in the letting of the contracts and the performance of the work, and that the trustee properly issued the vouchers of the several claimants, including Bell. It is asserted further by respondent that the hospital trustees under the statutes had full control and discretion to determine the justice or validity of claim against the hospital fund, and the county court had no function or duty to discharge in that respect; that their duty was only ministerial, and, the claimants having an undoubted right to the warrants which they demanded, it was the duty of the county court to issue the warrants on the proper vouchers of the hospital trustees.

It may be said here that there is no dispute but that the labor, material and services out of which these claims arose were actually furnished and used in the hospital, nor is it denied that the work was done as well and as cheaply as it could have been procured from any other source. It is not disputed that the claimants furnished value for what they demanded.

The Court of Appeals held squarely that the function of the county court in respect to the claims was purely ministerial, that it had no duty to perform and no discretion in determining whether the claims were proper, or whether the contracts out of which they arose were in accordance with the statute.

The evidence shows that M.F. Bell, relator, and Holmes Flynn, of Illinois, entered into contract with the board of trustees to prepare plans and specifications for the hospital building, and perform other duties in connection with it. They were to receive six per cent of the total cost of the building for such services, and there remained due a balance of $887.63, which is the basis of their demand. The finding and judgment of the circuit court as set out in the opinion of the Court of Appeals, are as follows:

"The court doth further find that the relator is a competent architect; that the Callaway County Hospital and its board of trustees are duly organized and existing under the provisions of Article 27 of Chapter 111 of Revised Statutes of Missouri for the year 1919; that such board of trustees while duly organized and existing under the provisions of the law aforesaid, by order of record entered into a contract in writing with relator as assistant architect to furnish plans and specifications for and to superintend the erection of a hospital building; that the relator performed all the obligations imposed upon him by said contract, and that his services were satisfactory to said board of trustees; that from time to time, under said contract, payments were made to relator on said contract; that on February 7th, 1922, the said board of trustees by order of record, directed that a voucher be issued to relator in the sum of $887.63 in settlement of the balance due relator on his contract, which voucher was properly issued, delivered to and accepted by the relator; that said voucher was properly authenticated by the officers of said board of trustees and filed in the County Court of Callaway County, Missouri, on February 8, 1922, and on said date a demand was made that a warrant be ordered drawn in favor of the relator for the sum so certified in said voucher; that the respondents, E.C. Holman, James E. Moore and A.T. Crump were then and are now the duly elected, qualified and acting justices of the County Court of Callaway County, Missouri; that repeatedly since the 8th day of February, 1922, relator has demanded of respondents that a warrant be ordered drawn in his favor for the amount of said voucher; that the respondents continuously since that date and do now refuse to order said warrant issued.

"The court doth further find that the relator is entitled to have a warrant drawn in his favor against the hospital fund of said county for the sum of $887.63, and it is the duty of the respondents to order said warrant drawn; that there are sufficient funds in the hands of the treasurer of Callaway County, Missouri, to the credit of the hospital fund, to pay said sum, together with all other unpaid vouchers."

I. The Court of Appeals in its opinion says:

"It is relators' (meaning the petitioners for mandamus in the circuit court) position that as members of the Board of Trustees of the County Hospital are elected byStatutory Construction. the people, just as the members of the county court are elected, their official acts are not subject to the control of the county court."

The court then announced the law which it says governs the case, as follows:

"As a general rule a disbursing officer cannot pass upon the legality of a claim where it has been allowed by a board or other officer having authority to act in the premises, except in the case of fraud or mistake. [26 Cyc. 318.] See also State ex rel. v. Meeker, 182 Ind. 240, 105 N.E. 906; City of Paducah v. Board,146 Ky. 636, 143 S.W. 1; Lovelady v. Loveman, 191 Ala. 96, 68 So. 48; Jobe v. Caldwell Drake, 93 Ark. 503, 125 S.W. 423. In the case last cited it is said:

"``The State Auditor acts in a ministerial capacity in issuing warrants on certificates of an officer or tribunal authorized to pass on and certify the justness of claims against the State, and may be compelled by mandamus to act when he wrongfully refuses to do so."

It is for us to say whether that statement of the law in construing the statute is contrary to the latest ruling of this court. Let us notice first what the statute says about it.

Article 27, Chapter 111, Sections 12609 to 12626, Revised Statutes 1919, after providing for an election to levy a tax for the building and maintenance of a hospital, Section 12610 has this provision relating to the tax: "It shall be collected in the same manner as other taxes are collected and credited to the ``hospital fund,' and shall be paid out on the order of thehospital trustees for the purposes authorized by this article,and for no other purposes whatever."

Section 12612, providing for an organization of the hospital board, further provides: "The county treasurer of the county in which such hospital is located shall be treasurer of the board of trustees. The treasurer shall receive and pay out all the moneysunder the control of the board, as ordered by it, but shall receive no compensation from such board."

The section then provides that trustees shall receive no compensation; that they shall adopt by-laws, rules and regulations for their own guidance. "They shall have exclusivecontrol of the expenditures of all moneys collected to the credit of the hospital fund, and of the purchase of a site or sites, the purchase or construction of any hospital building or buildings," etc. And then: "Provided, that all moneys received by such hospital shall be deposited in the treasury of the county to the credit of the hospital fund, and paid out only uponwarrants ordered drawn by the county court of said county uponthe properly authenticated vouchers of the hospital board."

The Court of Appeals construed these statutes to mean that hospital trustees have exclusive control of the expenditure of moneys collected to the credit of the hospital fund. The natural interpretation of that language excludes the intervention of any other official in determining what claims are to be paid and what accounts ought to be allowed. The plain words mean that full discretion is vested in the hospital board to pass upon and determine the validity of every claim presented. Relators call attention to the provision that the money must be deposited in the treasury of the county and must be paid out only upon warrants drawn by the county court, and argue that the county court is thus vested with some discretion, some function to determine whether or not the claims presented are valid, but that same sentence of the statute goes on to say that such payments are made upon properly authenticated vouchers ofthe hospital board. That seems to leave no doubt that the only judgment exercised by the county court is determined whether the vouchers presented show proper authentication of the hospital board, and whether they are for purposes within control of the hospital board and for the purposes of the above statute. If such vouchers should show on their faces that they were issued for purposes foreign to the field controlled by the hospital board, the county court could deny warrants. The quotation from the Arkansas case cited by the Court of Appeals is in accordance with the ruling of this court. [County of Boone v. Todd, 3 Mo. 140.] That was a case where the circuit court allowed the clerk of that court a certain compensation for office rent. The clerk presented his claim as allowed by the circuit court, and the county court was asked that a warrant be drawn. The county court refused to issue the warrant and by mandamus was compelled to issue it. This court said:

"It may be true that if the county is bound by the law to furnish a room or house to keep the office in that an action would well lie against the county as the law has provided for suing the county; but it is equally clear that the circuit court is by express statute to audit all expenses against the county, incurred for books, stationery and other expenses relating to the office of its clerk. And with respect to these matters, when allowed by the circuit court, the county court is bound by law to issue their warrant to the treasurer of the county directing him to pay the same; and if the county court refuses to order the warrant to be issued, mandamus is beyond doubt the proper remedy."

Here all funds are to be paid out by the county treasurer "asordered by it" (the hospital board), and the county court must issue the warrants upon its properly authenticated vouchers.

In State ex rel. v. Brown, 72 Mo. App. 651, the Sheriff of the City of St. Louis was allowed per diem compensation for himself and his deputies. His accounts were duly examined by the judges of the several divisions of the circuit court, and certified to be correct. The Auditor of the City of St. Louis examined the accounts and disallowed a considerable portion of them, whereupon by writ of mandamus he was compelled to pay the sums certified to be correct by the circuit judges. Judge BIGGS, in a concurring opinion, said (l.c. 657): "But the statute imposes the duty on the relator to attend the court, and it provides for his compensation therefor. The jurisdiction to determine the extent of his services and the amount to which he is entitled is vested in the judges of the circuit court in general term. In the discharge of these duties the circuit judges must construe and apply the statute and hear evidence as to the justice of the claim. As to these matters they exercise a lawful jurisdiction, and their decision thereon is final and conclusive.

See also State ex rel. v. Gilbert, 163 Mo. App. 679, l.c. 687; 38 C.J. 767; L.R.A. 1916 D, pp. 325-330, where in the notes many cases are collated on the subject.

The cases which relators cite as in conflict with the ruling of the county court are such as Hillside Securities Co. v. Minter,300 Mo. 380; Hanick v. Marion County, 278 S.W. 730, all relating to the regularity of entering contracts for countyCertiorari. purposes under statutes applying to the subject. The Hillside case concerned a contract for the construction of bridges and it is affected by a statute which is not at all similar to the statute under consideration here. The Hanick case relates to a contract for the construction of a hard surfaced road, and is controlled by statutes relating to roads and highways; the provisions of which are in no way similar to those under consideration here.

Section 12612, Revised Statutes 1919, provides that no hospital building shall be erected or constructed until the plans and specifications have been made therefor and adopted by the board of local trustees, and bids advertised for according to the law relating to other county buildings. The claim is that that brings all matters relating to this construction of a hospital building within the purview of Article 3, Chapter 86, relating to county buildings. That article provides for the manner of entering contracts, advertising for bids, etc. The appellants construe those statutes as requiring a single contract for an entire building, and that a letting of contracts piecemeal is contrary to that section of the statute. It may be said that Section 12616 puts the proceedings to build a hospital under the general law so far as it relates to advertising for bids. But it is argued that even that was violated by entering into private contract with Bell without advertising twice for bids.

The trouble with that position of relators is that they have pointed to no case construing the hospital statute and holding that the proceedings of the hospital board in that respect must conform in all respects to the general law in relation to county buildings. The cases cited do not contain any ruling of that sort, but they all construe statutes which prescribe methods to be pursued, and do not construe any statutes similar to the general provisions of the statute relating to county hospitals. The insuperable objection to relators' position is that they have cited no case construing any statute similar to the hospital statutes relating to the powers given and the duties imposed upon the hospital board. No case cited construes any statute where the exclusive control of funds, such as are put into the hands of the hospital board, are given to any like body with similar authority and direction as to its management. Whether or not the construction of the Kansas City Court of Appeals is correct, it is not shown to be in conflict with any ruling of this court, in the absence of a case where some similar statute is construed in a different way.

II. This construction of the hospital statute by the Kansas City Court of Appeals is the first that has occurred in any appellate court, so far as we are advised. It is a new statute which creates a new function to be discharged by certain public officials. It defines the manner in which theJurisdiction. officials charged with the practice under their management shall perform their duties, and we cannot hold that the Court of Appeals was without jurisdiction in construing it as they did. [State ex rel. Security Life Ins. Co. v. Allen, 267 S.W. 379, l.c. 382.]

It was an open question for the Court of Appeals to determine. It follows that the writ in each of the above cases was improvidently issued, and in each case it is quashed. All concur, except Gantt, J., not sitting.