Opinion
No. 39401.
January 18, 1945.
1. CONSTITUTIONAL LAW: Constitutional Convention: Submission of New Constitution: Ordinance not Exclusive. The ordinance of the Constitutional Convention dealing with the method of holding the election on the new Constitution did not exclude a prior committee report recommending publication of the "Address to the People." Each was a part of the plan or "manner" in which the Convention purposed to submit its work to the voters.
2. CONSTITUTIONAL LAW: Constitutional Convention: No Particular Form of Appropriation Required. It is not necessary that expenditures of the Constitutional Convention be authorized in any particular manner.
3. CONSTITUTIONAL LAW: Words and Phrases: Constitutional Convention: Submission of New Constitution: Meaning of Word "Submit." The Constitutional Convention is authorized to submit its work to the people in such manner as it may provide, which means that it may adopt a different method from that in which other propositions are submitted to the voters. The word "submit" may include more than leaving the bare document to the will of the voters.
4. PARTIES: Constitutional Law: Issues Raised by Amicus Curiae. While an amicus curiae must take the case as he finds it with the issues made by the parties, new points raised in the brief of the amicus curiae will be considered in view of the general public interest involved.
5. CONSTITUTIONAL LAW: Constitutional Convention: Authority of Committee. While the life of a committee cannot be extended beyond the life of the body which created it, the persons designated as a committee of the Constitutional Convention to complete and carry out the submission of the new Constitution are duly authorized public agents to supervise the expenditure of public money.
6. MANDAMUS: Courts: Prior Injunction Suit: Jurisdiction of Supreme Court. A prior injunction suit in the circuit court which would deny adequate relief to the relator does not deprive the Supreme Court of jurisdiction to grant relief through a mandamus proceeding.
7. CONSTITUTIONAL LAW: Constitutional Convention: Power to Publish "Address to the People." The Constitutional Convention had the power to publish the "Address to the People."
8. MANDAMUS: Constitutional Law: Writ Against State Auditor. Since the voucher of the committee of the Constitutional Convention was legally issued, the State Auditor was without discretion to refuse to approve it, and a writ of mandamus should issue against him.
9. COURTS: Mandamus: Rule for Motion for Rehearing Suspended. The necessity of a speedy final decision requires the court to suspend its rule permitting the filing of a motion for rehearing.
ALTERNATIVE WRIT MADE PERMANENT.
Conkling Sprague for relator.
(1) The Constitutional Convention was authorized to appropriate and expend such moneys as were reasonably necessary to accomplish the purpose for which the Convention was called. 16 C.J.S., p. 35, sec. 8b. (2) The Convention was authorized to expend such money as was reasonably necessary to inform the electors of the contents of the proposed new Constitution, and was therefore authorized to publish the "Address to the People" in relator's newspapers. Sec. 3, Art. XV, Mo. Constitution. (3) "Submit to the electors in such manner as may be provided by such Convention," as used in said Section 3, means to present for consideration, to offer for the judgment of the electors (Century Dictionary), and implies the authority of the Convention to appropriate and expend the state's moneys reasonably necessary to offer to the electors an opportunity to ascertain the contents of the proposed new Constitution. (4) What may be reasonably implied from powers granted the Convention by said Section 3 is as much a part of the section as what is expressed. Dillon v. Gloss, 256 U.S. 368, 65 L.Ed. 994; McCullough v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579. (5) Section 3 should receive a reasonable and practical interpretation to effectuate the intent and purpose of the people in adopting it. 16 C.J.S. 50, sec. 14; 1 Story, Constitution, sec. 451. (6) The Convention having determined the amount necessary to carry into effect the manner of submission provided for by it, having appropriated that amount, and having provided in detail the purposes for which the amount could be expended and the manner and method of expending and disbursing it, the Convention had exclusive control of the expenditure, and when the voucher in question was approved as provided by the Convention, it became the duty of the State Auditor to draw his warrant therefor. State ex rel. McDowell, Inc., v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524. (7) An appeal to the General Assembly is inappropriate and would not be an adequate remedy at law; the public interest is such as to make imperative a speedy determination of the authority of the Convention, acting through its duly constituted agents, the Executive Committee, to offer an opportunity to the electors of Missouri to inform themselves of the contents of the proposed new Constitution.
J.E. Taylor, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondent.
(1) The Constitutional Convention was bound by the provisions of the present Constitution of Missouri, and such Convention can only exercise such powers as the present Constitution vested in it. Moore v. Brown, 165 S.W.2d 657; Erwin v. Nolan, 280 Mo. 401, 217 S.W. 837. (2) The only authority and power the Constitutional Convention had was to propose amendments to the present Constitution or to propose a new Constitution, and to provide for the manner in which such amendments or new Constitution should be submitted to the electors of the State. Sec. 3, Art. XV, Mo. Constitution. (3) The Constitutional Convention determined the manner in which the proposed new Constitution should be submitted to the electors of the State, and the method or manner provided for did not provide for nor authorize the publication in newspapers of the Address to the People. Ordinance, p. 4, Journal of Constitutional Convention for September 29, 1944. (4) Even if the Constitutional Convention by adopting committee reports or in any other manner undertook to authorize the publication in newspapers of the Address to the People, and to appropriate money to pay for the cost of such publication, such action was without authority and void. State ex rel. v. Blaisdell, 119 N.W. 360, 18 N.D. 31; Noland v. Hayward, 192 P. 657, 69 Colo. 181; In re Norton, 134 N.Y.S. 1030, 75 Misc. 180; Hoar on Constitutional Conventions, p. 213; Jameson on Constitutional Conventions (4 Ed.), p. 530.
Frank B. Williams, amicus curiae pro se.
(1) The Constitutional Convention of 1943-44 ceased to exist September 29, 1944, and the delegates thereto became private citizens with no power or authority after the adjournment of the Convention sine die to perpetuate or extend the activities of the Convention through an Executive Committee or agents and said private persons have no power or authority to contract state debts over which the Convention has no control and their contracts entered into are without authority of law are void. (2) That the manner of holding an election submitting the proposed Constitution of Missouri to the electors and fixing the date of said election, was determined by the Ordinance adopted by the Convention, which makes no provision for the printing or publication in any newspaper of the "Address to the People." (3) The "Address to the People" is no part of the submission of the Constitution to a vote of the electors under the provision of Section 3, Article XV of the present Constitution of Missouri. The term "Address to the People" is unknown to our statute and constitutional law and to legal lexicographers. The term has never been legally defined or given any particular legal significance. (4) The Constitutional Convention exercises only such power to appropriate state funds as is granted by the exact language of Section 3, Article XV of the Constitution and it has no implied power to make appropriations for any purposes other than granted by said Section. Had the framers of the initiative act (Art. XV) intended the grant of general powers claimed by relators, they would have said so in plain terms. Their failure to make a general grant negatives any presumption of an intention to make it. 11 Am. Jur., p. 667, sec. 57, p. 668, sec. 58; State ex rel. v. Dirckx, 211 Mo. 568, 111 S.W. 1; Henderson v. Koenig, 168 Mo. 356, 68 S.W. 72, 57 L.R.A. 659; State ex rel. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080; State ex rel. v. St. Louis, 11 S.W.2d 1010; State ex rel. v. Hussman, 5 S.W.2d 1086; State v. Gas Co., 138 P. 781; State v. Butter, 69 So. 771; People v. Deutsche, 94 N.E. 162. (5) The appropriation from the general revenue for purposes and expenditures stated in the committee reports and resolutions of the Constitutional Convention is not made pursuant to Section 3, Article XV of the Constitution and is not made pursuant to an appropriation by law, that is, by statute and is not made for expenditures incurred by the Convention while it remained a legally constituted body; and such appropriation can be used for such purposes only as set out in the ordinance adopted by the Convention which provides the manner or procedure to be followed in submitting the proposed Constitution to a vote of the people. Sec. 19, Art. X, Sec. 15, Art. III, Mo. Constitution; Brown v. Moore, 165 S.W.2d l.c. 664. (6) The general power of appropriating state funds is exclusively in the Legislature and no monies shall ever be paid out of the treasury of this State, or any of the funds under its management, except in pursuance of an appropriation by law. The grant of special power to the Constitutional Convention is an exception, a temporary grant only made by the people, and must be strictly construed since its life is for the duration of the Constitutional Convention. Sec. 19, Art. X, Mo. Constitution; Moore v. Brown, 165 S.W.2d l.c. 664; State ex rel. v. Burton, 266 Mo. l.c. 717, 182 S.W. 746; Ward v. Colo. E.R. Co., 22 Colo. App. 332; Screbner v. State of Oklahoma, 132 P. 933, Ann. Cas. 1915B, 381. (7) The Constitutional Convention cannot delegate its authority or powers of discretion to private persons and cannot grant such power and authority to private persons beyond the life of the Convention. The persons who were to wield the powers of the Convention, the delegates, were chosen, elected, by the people. They constituted the body of the Convention. Their powers and the powers of the body to incur expenditures are non-delegable. Expenditures legally could be incurred only by the body. The body's power to incur expenditures expired with sine die adjournment. The body could act through agents only while it had life. The body could not project its powers beyond its life. Sec. 3, Art. XV, Mo. Constitution; State v. Dirckx, 211 Mo. 568, 111 S.W. 1. (8) The word "submitted" as used in Section 3, Article XV means the final draft or finished document, yielded or deferred to the opinion or authority of the people for adoption and does not connote the "submission" of the "Address to the People" which is no part of the "Constitution" to be voted upon by ballot at a special election "as may be provided by the Convention." Webster's International Dictionary, Second Edition, Unabridged. Title "Submitted." (9) The word "manner" as used in Section 3, Article XV means a mode or method in which the "Constitution or constitutional amendments" without embellishment or modification must be "Submitted." Webster's International Dictionary, Second Edition, Unabridged. Title "Manner." (10) The word "such" in the phrase "in such manner," used in Section 3, means in the manner as "characterized and specified and of the sort or degree indicated or contextually implied." It is essentially a term of comparison. It means "of that kind"; of the same or like kind; identical with or similar to something specified. Webster's International Dictionary, Second Edition, Unabridged. State ex rel. King v. Board of Trustees of Firemen's Pension Fund of Kansas City, 184 S.W. 929, 192 Mo. App. 583. (11) The rule noscitur a sociis applies. It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. "Noscitur a sociis" is a rule of construction applicable to all written instruments. It is a rule of interpretation by which the meaning of not merely one word but that of several may be arrived at where there is use or room for construction. Relator admits in his petition for the writ that there is doubt and himself applies the art of construction. State v. Hogan, 130 S.W.2d 250; Cochran v. Standard Accident Ins. Co., 271 S.W. 1011, 219 Mo. App. 322. (12) Failure of the Constitutional Convention of 1922 to follow the Constitution and the law is not persuasive on the court to make the same error now. Constitutional Conventions do not make laws. Neither do they make precedents. The rule stare decisis cannot be applied to their field of activities. State ex rel. v. Renick, 157 Mo. 292, 57 S.W. 713; State ex rel. v. Mo. Workmen's Comp. Comm., 318 Mo. 1004, 2 S.W.2d 796. (13) Rules of the Supreme Court of Missouri under the Code of Civil Procedure are a bar to the granting of an original remedial writ of mandamus by that court in any case where adequate relief can be afforded by application for such writ to a court having in that behalf concurrent jurisdiction and particularly when such concurrent court already has jurisdiction of the same subject matter, and the same respondent in an injunction proceeding, duly filed and pending prior to the filing of the mandamus suit. Supreme Court Rule 1-23; Civil Code of Mo. R.S. 1939, effective January 1, 1945; Laws 1943, p. 359, sec. 10. (14) The pending of prior injunction suit in a court of concurrent jurisdiction involving the same matters and the same respondent, operates as a bar to the issuance of a writ of mandamus where the rights of relators in both suits, even though relators are different, may be determined in the prior injunction proceedings duly filed before the mandamus suit. 38 C.J. 572-573; secs. 45, 47; 34 Am. Jur. 866, sec. 77; High, Extr. Leg. Rem. (2 Ed.), sec. 30; State ex rel. v. Speer, 284 Mo. 45, 233 S.W. 655; State ex rel. v. Sale, 153 Mo. App. 273, 103 S.W. 119; State ex rel. v. Stone, 190 S.W. l.c. 602; Supreme Court Rule No. 32; Ohio v. Wyandot, 7 Ohio, 278; People v. Warfield, 20 Ill. 160. (15) If everything precedent to the right to have the duty performed has not been done and the relator and the contracting authority with whom he deals fail to perform every material precedent to the right to have the duty performed, mandamus will not lie to compel a public officer to perform the act sought to be commanded. Secs. 13026, 13040, R.S. 1939; State ex rel. Lindley v. Clark, 61 Mo. 263; State ex rel. v. Smith, 330 Mo. 352, 48 S.W.2d 891, 81 A.L.R. 1066. (16) The duties of the State Auditor are not "ministerial" enforceable by mandamus, where, as here, there is discretion in the performance of the duty imposed upon him under the Constitution and the laws of this State. 12 C.J., p. 713, sec. 65; State ex rel. v. Hinkson, 7 Mo. 353; State v. Boone County Court, 50 Mo. 317, 11 Am. Rep. 415; Hall v. Bray, 51 Mo. 288; State v. New Madrid County Court, 51 Mo. 82; State ex rel. v. Clark, 61 Mo. 263; St. Louis v. Shields, 62 Mo. 247; Mangiercina v. Haney, 141 S.W.2d 89; State ex rel. v. Board of Education, 224 Mo. App. 120, 21 S.W.2d 645, cause transferred from the Sup. Ct. 18 S.W.2d 26; Corley v. Montgomery, 226 Mo. App. 795, 46 S.W.2d 283; State v. Henderson, 350 Mo. 966, 169 S.W.2d 389; Marbury v. Madison, 1 Cranch, 137, 170, 2 L.Ed. 60. (17) The office of State Auditor is a coordinate branch and belongs to the Executive Department of the Government and by reason of his oath of office to faithfully carry out his duties, he is not amenable to process by mandamus in matters of discretion. Art. III, Mo. Constitution; Sec. 6, Art. XV, Mo. Constitution, "Oath"; State ex rel. v. Stone, 120 Mo. 428, 25 S.W. 376, 23 L.R.A. 194. (18) The State Auditor is a quasi-judicial executive with duties "prescribed by law" and unless his action is unreasonable, mandamus will not lie to compel him to act. If there is doubt, he is not required to take the risk of a wrong decision. Sec. 1, Art. V, Mo. Constitution; Sec. 13040, R.S. 1939; Keck v. Seibert, 138 Mo. 202, 32 S.W. 670; State v. Thompson, 316 Mo. 1169, 293 S.W. 391. (19) The discretionary powers of the Executive Department are within the range of matter committed by the Constitution and Law to the State Auditor and his decision is final and binding on the courts. Hence, the Legislature is the exclusive judge in matters of this sort. 12 C.J., p. 713, sec. 65; State ex rel. v. Boone County Court, 50 Mo. 317, 11 Am. Rep. 415; Lindley v. Clark, 61 Mo. 263. (20) The relator in mandamus must have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required before mandamus will issue. State ex rel. v. Stone, 190 S.W. l.c. 602; State ex rel. v. City Willow Springs, 183 S.W. l.c. 592. (21) When the act to be performed would be unlawful, doubtful or not clear, mandamus will not lie to compel the State Auditor to certify or approve any claim for payment by the State Treasurer. State ex rel. v. Smith, 330 Mo. 352, 48 S.W.2d 891, 81 A.L.R. 1066.
Williams, Nelson O'Bryen, amici curiae.
(1) A Constitutional Convention "is created by the direct action of the people and in the discharge of its powers, duties and obligations it performs one of the highest and most important acts of popular sovereignty." 16 C.J.S. 20. (2) Under the Constitution of Missouri now in effect the Constitutional Convention of 1943-44 is given the express power to determine the "manner" by which the proposed Constitution shall be submitted to the voters of the State and also the express power and authority "to appropriate money to pay for the expenditures incurred" by the Constitutional Convention. Sec. 3, Art. XV, Mo. Constitution. (3) The word "manner" contained in said Sec. 3, Art. XV of the Constitution in the sense there used means "A mode of procedure; the mode or method in which something is done." Webster's New International Dictionary, Second Edition, Title "manner." (4) The action of the Constitutional Convention in compiling the "Address to the People" and in providing for its publication in relator's newspapers and in appropriating money to pay the expense of said publication is presumed to be constitutional. Even a statute by a Legislature is never held to be unconstitutional unless its unconstitutionality appears beyond a reasonable doubt. Ward v. Public Service Comm., 341 Mo. 227, 108 S.W.2d 136; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721. (5) The fact that the Constitutional Convention of 1922 pursued a like course in compiling and publishing its "Address to the People" and the further fact that the Constitutional Convention of 1875 likewise prepared an "Address to the People" to be used in connection with the submission of the then proposed Constitution and had the same printed and paid for out of its contingent funds [See, Journal, Missouri Constitutional Convention of 1875 (The State Historical Society of Missouri, Columbia, 1920), Proceedings of July 3, 1875, p. 541, and of August 2, 1875, p. 876 et seq.] while not binding upon the courts should be considered as valuable light on the meaning of Sec. 3, Art. XV of the Constitution and persuasive as to the soundness and legality of the similar action taken by the Convention of 1943-44. (6) The duty required of the State Auditor, respondent herein, under the facts and circumstances of this case was a purely ministerial duty and one that may be controlled by a writ of mandamus. Sec. 13042, R.S. 1939; State ex rel. McDowell, Inc., v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. Meals v. Hackmann, 217 S.W. 271.
Original proceeding in mandamus to compel the respondent, State Auditor, to approve a voucher and issue a warrant to relator. The voucher, dated December 23, 1944, was issued by the executive committee of the 1943-44 Constitutional Convention in payment for publishing in relator's newspaper the "Address to the People" adopted by the Convention.
The Convention adjourned sine die on September 29, 1944. Prior to adjournment the following, among other proceedings, were had.
On September 27 the "Address to the People," explanatory of the proposed Constitution, was approved and provision was made for an executive committee and other committees to complete the work of the Convention. Among other duties the executive committee was directed to "Supervise, manage, control and pay for all activities necessary to the closing of the Convention and the submission of the new constitution to the voters of the State."
On September 28 the Convention approved the final draft of an entire new constitution to be submitted to the voters and adopted the report of a committee recommending the printing and distribution of the "Address to the People" in pamphlet form and also its publication in newspapers.
On September 29 a committee report, including an attached exhibit, was adopted. The exhibit was styled: "Ordinance. Manner of holding election submitting the proposed constitution of Missouri to the electors and fixing the date of said election."
The Ordinance fixed the date of election, method of giving notice, method of conducting the election and making returns thereof. An appropriation was made to pay the cost of printing the "Address to the People" in pamphlet form and its publication in newspapers.
A decision of this case depends upon a construction of Section 3, Article XV of the present Constitution, a portion of which reads:
"The convention shall have power to appoint such officers, employees and assistants as it may deem necessary, and fix their compensation, and to provide for the printing of its documents, journals, proceedings and a record of its debates, and to appropriate money to pay for the expenditures incurred. . . . Any proposed Constitution or constitutional amendment which shall have been adopted by such convention shall be submitted to a vote of the electors of the state in such manner and containing such separate and alternative propositions and on such official ballot as may be provided by such convention," etc.
On behalf of respondent counsel contends: (1) that the Convention determined the manner in which the proposed new constitution should be submitted to the electors in the ordinance heretofore mentioned, and that such ordinance did not provide for or authorize the publication in newspapers of the "Address to the People;" (2) even if the Convention, by adopting committee reports or in any other manner, undertook to authorize such publication and to appropriate money to pay for the same, such action was without authority and void.
On the first contention counsel argues that the manner of submission was completely and exclusively provided for in the ordinance and that the previous adoption of a committee report recommending publication of the "Address" cannot be considered [600] as any part of the plan or manner of submission. In making this argument, we apprehend that counsel is confused by the constitutional restrictions imposed upon the general assembly requiring it to act in a particular way. There is nothing in the constitution requiring the Convention to proceed in any particular manner, that is, by bill or ordinance, nor is there any requirement that its plan for submission of its work must be merged into one ordinance or resolution. We see no inconsistency in the duly adopted committee report authorizing the publication of the "Address" and the ordinance providing the method of holding the election. They treat different phases of the same general subject and each is a part of the plan or "manner" in which the Convention purposed to submit its work to the voters.
But counsel says there must be authority for the incurring of an obligation before money can be appropriated to pay therefor. Of course, that is true, but again we fear that counsel is thinking of the restrictions placed upon the manner in which the general assembly can authorize the incurring of an obligation and which restrictions are not applicable to the Convention. The constitution authorizes the Convention to incur expenses for certain purposes and such expenses are not required to be authorized in a particular manner. They may be authorized by motion or resolution duly adopted by the Convention.
Counsel contends that the Convention was without legal authority to authorize the publication of the "Address" and to appropriate money to pay for same.
In support of this contention counsel calls our attention to the manner in which various propositions are submitted to the voters by the general assembly and to the provisions of Section 2 of Article XV of our Constitution governing the submission of constitutional amendments either by the general assembly or by the initiative. But Section 3 of Article XV permits the Convention to submit its work in such manner as it may provide which means, of course, that it may adopt a different method from that provided for the submission of other propositions.
Some effort is made to define the word "submit." It is contended that to submit means to present and leave to the judgment of the voters. [Noland v. Hayward, 192 P. 657, 69 Colo. 181.] That is true, but a proposition may be presented or submitted in various ways. A case is submitted to a court when it is finally left with the court for its decision, but it may be submitted, (1) on the pleadings, (2) on the pleadings and evidence, (3) on the pleadings, evidence and argument. Either of those methods constitutes the manner of submission.
We get little help from cases decided in other jurisdictions because they are based upon constitutional or statutory provisions which differ from ours, but so far as the cited authorities are pertinent they support the idea that to "submit" may include more than leaving the bare document to the will of the voters. For instance: In re Norton, 134 N.Y.S. 1030, 75 Misc. 180, says: "In this election everything necessary to reach the judgment of the qualified voters is a part of the submission; that is, all the proceedings preparatory to the election, the proceedings upon election day, including the count of the ballots, and the return." Hoar on Constitutional Conventions, page 213, says: ". . . the general authority of the Convention over the manner of submission will include the date of election, the election officials" etc.
A brief filed by amicus curiae on behalf of respondent raises questions not stressed by respondent's counsel. We are not required to consider these additional questions because an amicus curiae "must take the case as he finds it with the issues made by the parties." [3 C.J.S., page 1049, section 3c.] But we will consider them since this is a matter of general public interest and not merely a suit concerning private litigants.
It is contended: (1) that the life of committees could not be extended beyond the final adjournment of the Convention; that when the Convention adjourned sine die its members became private citizens without power to incur indebtedness on behalf of the Convention; (2) that a suit now pending in the circuit court wherein a taxpayer seeks to enjoin respondent and another official from recognizing the validity of the voucher now under consideration bars us from jurisdiction in the instant suit.
We concede the correctness of the abstract proposition that the life of a committee cannot be extended beyond the life of the body which created the committee. That is not the question here. If, as we hold, the Convention had the power to submit [601] its work to the voters in such manner as it may decide, it had the power to appoint the persons to complete and carry out such submission. Although such persons are designated as a committee of the Convention, they are in reality agents of the State or of the public to supervise the expenditure of public money which has already been legally appropriated for a definite purpose. The general assembly has, by law, created what it termed a Legislative Research Committee which functions after final adjournment. The Convention has, by proceedings which have the force of law, created a so-called committee to perform the public function of submitting its work to the voters in the manner provided by the Convention.
The election to vote on the proposed constitution has been set for February 27. No final decision can be rendered before that date in the injunction suit pending in the circuit court. Due to the urgency for a speedy decision, that case not only fails to afford, but actually denies, adequate relief to relator in the instant mandamus suit. We have jurisdiction.
On oral argument it was conceded that the Convention had power to publish the entire proposed constitution in newspapers. We hold that it also had the power, as a part of its plan of submission, to publish the explanatory matter which constitutes the "Address to the People." The people granted that extensive power to the Convention by the adoption of Section 3 of Article XV of the Constitution. Whether that provision is wise or otherwise is not for us to say.
The voucher having been issued in accordance with law, the respondent State Auditor is without discretion to refuse to approve it and to issue his warrant.
This case has been thoroughly and ably briefed and argued by the attorneys for the relator and respondent. The members of the court have had full opportunity to examine the record and briefs. The necessity for a speedy final decision induced us to advance the hearing and now requires us to suspend our rule permitting the filing of a motion for rehearing.
The alternative writ of mandamus heretofore issued herein is hereby made permanent. All concur except Gantt, J., not sitting.