State ex rel. Kellogg v. Bishop

Holmes, Judge,

delivered the opinion of the court.

The petitioner states that, on the first day of May, 1867, he presented at the office of the State Treasurer certain “Union military bonds” of the issues of 1863 and 1865, amounting in all to some forty thousand dollars, and requested the Treasurer to receive, arrange and pay the same as required by law; that on that day the State Treasurer had in the treasury, or subject to his order, besides other money, the sum of six hundred thousand dollars received from the appropriations made by Congress to the State of Missouri for expenses incurred in suppressing the rebellion, and being money which had been appropriated and pledged by the act of the General Assembly of the State, approved March 9, 1863 (Laws 1863, p. 25), for the purpose of redeeming Union military bonds; that said money, so being in the treasury, was sufficient to pay all the bonds presented by the petitioner on the day aforesaid, and that the Treasurer had refused to pay the same : wherefore, he prays for a writ of mandamus.

The answer of the defendant admits the facts stated in the petition, but alleges in justification of his refusal to pay said bonds, that the motiey received out of. the appropriation by Congress had been specifically disposed of and appropriated *20 under the acts of the General Assembly of the State. The one entitled “An act creating a permanent School fund,” approved March 11, 1867; and the other entitled “An act to provide for the payment of the interest upon the State debt,” approved March 12, 1867 (pp. 166, 168, Laws 1867) — first, for a permanent School fund, and second, “ for the Seminary fund and to pay outstanding Union military bonds,” and for the payment of interest on the public debt incurred on account of railroads ; that the said sum of six hundred thousand dollars was the first and only money yet received into the treasury from the United States under the act o£ Congress, and that, therefore, he was not required nor permitted by law to pay these bonds of the plaintiff out of this money. The act of March 9, 1863, created a fund to be called the “Union military fund,” which was made to consist of “all moneys that may come into the treasury of the State from appropriations made by the Congress of the United States to the State of Missouri for the purpose of paying the militia forces thereof, or for indemnity for expenses incurred in suppressing the rebellion, or by loan for that purpose, and of other moneys to arise from taxes and other sources mentioned”—Laws 1863, p. 27, § 9.

By the act of the General Assembly, approved February 20, 1865 (Laws 1865, p. 59, §§ 1, 6), another issue of Union military bonds of like description was authorized and made payable out of the Union military fund created by the previous act, provided that if Congress, during its then present session, should pass an act to furnish the means of paying the liabilities of the State incurred for military defence, then the bonds thereby authorized should not be issued, but the militia should be paid out of the funds thus furnished by Congress.

The act of March 12, 1866 (Laws 1866, p. 95), provided in what manner these Union military bonds should be presented,1 arranged and paid, and in what order of priority between the several issues, so long as any means remained in the fund for that purpose.

*21 All these bonds were issued, negotiated and received by the holder’s thereof on the strength of these acts, and on the credit of the fund so created and pledged for their redemption.

By the act of March 11,1867, above cited, a permanent School fund was created, and there was thereby “ appropriated the sum of one million fiye hundred thousand dollars out of the moneys to be and first received from the United States under the provisions of the act of Congress entitled “An act to reimburse the State of Missouri for moneys expended for the United States in enrolling and equipping and provisioning the militia forces to aid in suppressing the rebellion, approved April 17,1866, which appropriation shall be held and sacredly preserved as a Public School fund.”

On the next day the act of March 12, 1867, was passed, by which, among other things, it was provided that all the moneys received under the act of Congress aforesaid, “ after reserving out of the first moneys so received fifteen hundred thousand dollars to carry out the provisions ” of the act creating a permanent School fund, “and a further deduction of five hundred thousand dollars for the Seminary fund, and to pay outstanding Union military bonds,” should, by order of the Governor, be placed as fast as received from the United States on deposit in bank in New York, to the credit *mf the State, to be paid, as the commissioners of the State interest fund should direct, upon the overdue coupons of the State bonds issued for certain railroads.

There is no room for doubt that these bonds of the plaintiff were payable out of the Union military fund in the manner prescribed by the statutes, nor that this fund, which was created and solemnly pledged for their redemption, included the anticipated appropriation by Congress, which was made for the very purpose of indemnifying the State for the expenses incurred in suppressing the rebellion, and for the very object for which these bonds were issued and the fund created ; and all the moneys which were to come into this fund, under the act, were specifically appropriated to the purpose *22 of redeeming these bonds. It is clear also that the moneys which have been received by the Treasurer from the United States, under the act of Congress, and placed subject to his order, are precisely of the character and description of the appropriations contemplated by the .Legislature in the act of 1868.

The State Treasurer rests his objection to paying these bonds out of the money received from this appropriation by Congress upon what he conceives to be the correct construction of the acts of March 11 and 12, 1867. It may be presumed that his refusal proceeds rather from a reasonable anxiety to be surely protected in his official action than from any disposition to evade his duty under the laws ; • and the determination of the case depends upon the construction to be given to these two acts.

The defendant’s construction is, that the words uto be and first received,” and “iAe first moneys received,” refer strictly to the time of reception, and that the appropriation is absolute of this money to the specific objects contemplated by those acts only. It is plain that if this construction were correct the result would be, that the Legislature has repealed, and intended to repeal, the former laws, by which this money was specifically appropriated and solemnly pledged for the redemption of Union military bonds, and diverted the money from the Union military fund in plain derogation of the act and pledge of the previous Legislature, and in direct violation of the honor and good faith of the State.

We may unhesitatingly assume in the outset that no such intention is to be imputed to that honorably body in the passage of these acts, unless the former acts have been thereby repealed in express words, or by necessary implication ; so that the several enactments cannot admit of any other reasonable construction.

Let us see, then; and first, it may be observed that there are no expressed words of repeal in either o°£ the two acts. The subject matter of the former law was not then directly in question before the Legislature. The objects contem *23 plated by the later acts were the creation of a permanent School fund, the restoration of the Seminary fund, and the payment of interest on the public debt. The Union military bonds had been to a large extent paid off out of moneys coming into the fund from the other sources mentioned in the act of 1863. The appropriation by Congress was greatly larger than the amount required to pay what remained unpaid of these bonds, and it is fairly to be inferred that it was the purpose of the legislative mind to dispose of the whole remainder of that appropriation, after the particular object for which it had been previously appropriated, and was expressly granted by Congress, had been fully answered under the former laws. The two acts were pending before the Legislature at the same time; one being passed on one day and the other on the next. It may be distinctly gathered that the chief object was to secure, first, out of this disposable subject a permanent School fund, and second, the extinguishment of the public debt.

In the second act, looking to the public indebtedness and the appropriation by Congress, they begin by saving out of the appropriation, first, the Public School fund created the day before, and next,- a further deduction of half a million for the Seminary fund, and also, and over and above all, the amount necessary “to pay Union military bonds ” (for the payment of which the whole appropriation had been already and long before solemnly appropriated and pledged) ; and lastly, the whole remainder was to be applied to the overdue coupons on the State bonds issued for railroads.

In this view, the words first received may fairly and justly be interpreted to mean money first received into the treasury and disposable for the objects contemplated by these two acts, not' already appropriated to another specific purpose for which the faith of the State had been pledged, and was therefore not to be touched ; and that the word first, in the mind of the Legislature, referred to the first object, the permanent School fund, in preference to the second object, the payment *24 of the public debt, and not at all to the mere date and absolute time of reception.

The introduction of the words “ and to pay outstanding Union military bonds ” into this second section of the act of March 12, is somewhat loose and peculiar. It might be conjectured that a few words, such as the amount necessary, may by some accident have been dropped out of the draft of the bill; but it is unnecessary to resort to any supposition of this kind, for the true meaning and design of the act to save and except, out of the appropriation then intended to be made,.enough to answer the existing appropriation for military bonds, may be clearly seen by looking through the mere forms of expression into the real object, purview and intention of the statutes.

The rule of construction which has been laid down on unquestionable authority, as applicable to a case of this kind, is, that “when the mind of the legislator has been turned to the details of the subject, and he has acted upon it, a subsequent statute in general terms, or touching the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provision, unless it is absolutely necessary to give the latter act such a construction in order that its words shall have any meaning at all” —Sedgw. on Stat. & Const. Law, 123. The law does not favor a repeal by implication unless the repugnance be quite plain; and two seemingly repugnant statutes should, if possible, have such construction, that the latter may not be a repeal of the former by implication—Dwar. on Stat. 533.

Applying this and all other rules of construction to these statutes, we cannot doubt that the foregoing is the proper view to be taken of them; that there is no repeal of the former laws by express words or by necessary implication ; that there is no essential repugnancy, but that all may stand consistently together ; that this money belongs to the Union military fund, and is applicable, first of all, to the redemption *25 of these Union military bonds until the same are fully paid off'; that such was the intention of the Legislature, and must be the proper legal effect of all these laws taken together ; and that there has been no inientiou, nor act of the Legislature, amounting to a breach of the public faith solemnly pledged. We should be doing injustice to ourselves, to the Legislature, and to the State, could we even think of holding otherwise.

A peremptory mandamus will therefore be ordered.

The other judges concur.