State Ex Rel. Davis v. Smith

I am unable to agree to the result reached by the majority opinion because I think it does not properly construe the statute providing for the payment of the expenses of the board in question. [Sec. 13525, R.S. 1929, sec. 13525, Mo. St. Ann., p. 637.] The holding that the board is required to be wholly self-sustaining seems to me to be an altogether too narrow and restricted construction of the statute. To give the effect ascribed to it by the majority holding there must be read into the law a legislative intent not apparent on its face, nor present, I think, by fair implication. The section in question provides: "All moneys collected by the board or its treasurer shall be paid into the state treasury, there to constitute a fund for the purpose of carrying out the provisions of this chapter. The State Auditor is hereby directed to issue his warrants monthly, upon the State Treasurer out of this fund only, for the payment of the salaries, office and all other necessary expenses of said board." *Page 1076

By such provisions I think the Legislature had in mind and intended that the board should be self-sustaining only insofar as its operations might make it so. If the Legislature had intended otherwise, and that the board should be wholly self-sustaining from fees earned by it, and the State could in no event contribute to its operations, such intent would have been more aptly expressed. I think the correctness of this proposition is attested by the provisions of the several acts creating some of our other state agencies, for example, and to mention only a few: The State Board of Embalming, the State Board of Dental Examiners, the State Game and Fish Department, and the State Board of Accountancy, as to each of which, it is, respectively, provided:

"All expenses, salary and per diem to members of this board (of Embalmers) shall be paid from fees received under the provisions of this chapter, and shall in no manner be an expenseto the State." [Sec. 13542, R.S. 1929.]

"And no part of said salaries or expenses (of the Board of Dental Examiners) shall at any time be paid out of any funds inthe state treasury." [Sec. 13573, R.S. 1929.]

"The liability of the State . . . shall be limited to the amount of moneys in the state game protection fund, and in noevent shall the State pay out any such salaries or expenses, orbe liable in any way therefor, except to the extent of such gameprotection fund." [Sec. 8304, R.S. 1929.]

"From the fees collected the board (of Accountancy) shall pay all expenses incident under this chapter: Provided, that no expense incurred shall be a charge against the funds of the State." [Sec. 13712(f), R.S. 1929.]

But the language of Section 13525, supra, does not, in my judgment, exclude or repel the idea that the fund so created might not be augmented by an appropriation out of the general revenue by the Legislature. Furthermore, there is a presumption that a new law relating to a given subject was enacted with reference to the former law, so that we are aided, although not controlled, by a legislative construction of the general act in harmony with its action in making the appropriation in question.

I think it was entirely competent for the Legislature, as the depository of the legislative power, and in the exercise of its plenary power over funds raised by general taxation, to determine that the public welfare demanded an additional appropriation to the board in question, and that it had capacity to make the same out of general revenue for the objects mentioned. The functions of the board relate exclusively to the public health. The appropriation to it was made at an extraordinary session of the General Assembly convened for the purpose of dealing with the emergency then existing, and, like *Page 1077 every other act of the Legislature, is entitled to the presumption in favor of validity until its invalidity is made to appear beyond a doubt. [State ex rel. v. Aloe, 152 Mo. 466, 54 S.W. 494.]

For these reasons, I dissent. Ellison, J., concurs.