The appeal in this case was lodged originally in Division Two, where it fell to me. My opinion reversing the judgment of the trial court was concurred in by HIGBEE, P.J. A dissent *Page 73 by WALKER, J., brought the case to Court in Banc upon motion of respondent.
In view of the announcement in the majority opinion that the writer is "unable to conceive how any rational mind can reach any other conclusion, except that the respondent was an officer of the Board of Equalization within the meaning of Section 12856, Revised Statutes 1919," it clearly requires considerable temerity to disagree with my learned brother.
When the case fell to me in Division Two, I went into it carefully and reached a conclusion which nothing said in the majority opinion has changed and, at the risk of being classed as the possessor of an irrational mind, I file as my dissent here that portion of my divisional opinion following the agreed statement of facts, which is set out in full in the majority opinion.
The sole question for our determination is whether respondent is entitled to per diem as an officer of the State Board of Equalization within the contemplation of Section 12856, Revised Statutes 1919. He clearly was not a member of said board, for its members are the Governor, State Auditor, State Treasurer, Secretary of State and Attorney-General only. [Constitution, art. X, sec. 18.] By virtue of his appointment as secretary of the Tax Commission respondent became ex officio secretary of the State Board of Equalization and by that authority performed services for the Board of Equalization. [Sec. 12842, R.S. 1919.] His salary as secretary of the Tax Commission was fixed at $2400 per annum. [Sec. 12841, R.S. 1919.] Officers and members of the Board of Equalization are entitled to receive the same pay per diem as officers and members of the General Assembly (Sec. 12856, R.S. 1919), to-wit, the sum of five dollars per day. [Constitution, art. IV, sec. 16.] It is admitted that the amount of respondent's claim is correct, if he is entitled to compensation for his services as secretary of the State Board of Equalization inaddition to his salary as secretary of the Tax Commission. *Page 74 It is agreed that there are funds in the treasury, appropriated for the purpose and unexpended, sufficient to pay the claim.
(Since the divisional opinion was written the appropriation referred to has lapsed. The Fifty-second General Assembly, by Section 76 of House Bill 670, appropriated $820 for the relief of respondent, but this met with the executive veto. [Laws 1923, p. 398.] Therefore, the stipulation that there are funds in the treasury appropriated for the purpose and unexpended is no longer true in fact, although such stipulated fact must be taken astrue for the purposes of this case.)
The rule is well settled that the State Auditor can approve the payment of money of the State only when satisfactory authority providing for such payment is shown. [State ex rel. Bradshaw v. Hackmann, 276 Mo. 600, 208 S.W. 445; State ex rel. Bybee v. Hackmann, 276 Mo. 110, 207 S.W. 64.] Clear and specific right to the relief sought by mandamus must be established before such relief may be granted. [State ex rel. v. McIntosh, 205 Mo. 616, l.c. 635; State ex rel. Doud v. Lesueur, 136 Mo. 452.] An officer claiming fees or persons claiming allowances against the State must be able to point to the statutory provision authorizing the same or authorizing the service, from which the right to make the charge may be clearly inferred. [State ex rel. v. Allen,187 Mo. 560; State ex rel. Bybee v. Hackmann, supra.] We must approach the solution of the question before us guided by these general principles.
It must be admitted that there is no express provision authorizing the secretary of the State Board of Equalization, as such secretary, to receive a per diem allowance for his services. If such secretary is so entitled, it is because he is an officer of such board and as such authorized under Section 12856 to be so paid, and not then, if Section 12841 provides compensation in full for all services rendered by such secretary. The duties of keeping the records of the Tax Commission and complying *Page 75 with its orders and keeping the records of the Board of Equalization and discharging the duties that board may require are specifically set out in Section 12842. What other duties could he possibly have? It is for the performance of such duties that the secretary of the Tax Commission is paid $2400 per annum.
One of the very important duties of the Tax Commission is rendering assistance to the State Board of Equalization in the performance of its duties. [See particularly Sec. 12847, R.S. 1919.] Its employees are necessarily chosen with the end in view of thus assisting the board. Section 12856 and Sections 12841 and 12842 must be read together. When thus read and construed together, it is apparent that the duties performed by respondent as secretary of the State Board of Equalization are merely a part of his duties prescribed by law as secretary of the Tax Commission.
Even if it was within the contemplation of the Legislature in enacting Section 12856 that the board might employ a secretary of its own choosing outside its own membership and, in that event, such secretary would become an officer of the board in the ordinary sense and entitled on that account to the same perdiem as a member, yet Sections 12841 and 12842, being a later expression of the legislative will and making full and sole provision for a secretary for the Board of Equalization and for his compensation, evidence a change in the legislative policy and they are controlling. If Section 12856 was previously susceptible of such construction, that construction must fall by reason of the later enactments on the subject. In view of the enactment of Sections 12841 and 12842, it is unimportant that, under preexisting constitutional and statutory provisions, the secretary of the State Senate was allowed per diem as secretary of the State Board of Equalization.
It makes no difference whether or not respondent be deemed anofficer of the State Board of Equalization in the ordinary acceptance of the word; he was not, within *Page 76 the contemplation of Section 12856, construed in connection with, and as modified by, Sections 12841 and 12842, such an officer as to entitle him to the per diem allowance in addition to his salary as secretary of the Tax Commission. The utmost which can be said for the construction of said sections contended for by respondent is that there is grave doubt of the correctness of such construction and that clear right to the relief sought has not been shown. Under the rule laid down in State ex rel. McIntosh and State ex rel. Doud v. Lesueur (above cited) and other cases, respondent is not entitled to mandamus against the State Auditor to compel the allowance of his claim.
It therefore follows that the trial court erred in issuing its peremptory writ and its judgment should be reversed, and from the conclusion to the contrary announced in the majority opinion, I respectfully dissent.