Fulmore v. Lane

• Citation: 140 S.W. 405
• Parties: FULMORE v. LANE, State Comptroller.
• Decision Date: 04 November 1911
• Court: Supreme Court of Texas

Page 405

140 S.W. 405

FULMORE v. LANE, State Comptroller.

Supreme Court of Texas.

November 4, 1911.

Petition by Sterling R. Fulmore for mandamus against W. P. Lane, State Comptroller. Writ allowed.

Jno. W. Brady and E. B. Robertson, for relator. W. P. Lane, pro se.

DIBRELL, J.

This is an action by Sterling R. Fulmore, relator, against W. P. Lane, State Comptroller, respondent, upon a petition for a writ of mandamus to compel the respondent, as Comptroller of the State, to issue his warrant to the State Treasurer, in favor of relator, for the sum of $100, alleged to be due him by the state for salary for services performed during the month of September, 1911, as stenographic clerk in the office of the Attorney General. No issue of fact is made by the pleadings, and the questions presented are those of law exclusively. If an appropriation was made by the first called session of the Thirty-First Legislature for the support and maintenance of the Attorney General's department, and such appropriation was not vetoed by the Governor, as contended for by the respondent, then the relator is entitled to his writ of mandamus, compelling the respondent, as Comptroller of Public Accounts of this state, to issue his warrant to the State Treasurer for the amount of salary due relator.

Section 14, c. 17, of the Acts of Third Called Session of the 31st Legislature, 1910 (Session Acts, page 39), is as follows: "Sec. 14. No warrant shall be drawn on the treasury of this state by the Comptroller based alone on the requisition of any individual or board, except as otherwise provided by law, but in all cases an account must first be made in pursuance of some specific appropriation, and filed with the Comptroller, by some one duly authorized and verified by affidavit." The duties of the Comptroller under the above section of the act of the third called session of the Thirty-First Legislature are essentially different from those under section 13 of said act, as recently held by this court in the case of Jewel P. Lightfoot, Relator, v. W. P. Lane, Respondent, 140 S. W. 401.

Under the several provisions of said act the Comptroller of Public Accounts is required to audit and approve or disapprove all claims against the state, and by the provisions of section 14, as above quoted, where such claims are based alone on the requisition of any individual, which is here construed to mean any person authorized by law to make such requisition, or board, the Comptroller is not authorized to draw his warrant on the treasury of the state, unless such claim is made in pursuance of some specific appropriation. Under such circumstances his duty is not merely ministerial, but discretionary in the degree that he is authorized to withhold the issuance of his warrant until he ascertains whether such claim is made in pursuance of some specific appropriation. It should not, however, be implied that by the use of the word "discretionary" above the court holds that under the provision of section 14 of said act the Comptroller is clothed with absolute or arbitrary power to withhold the issuance of his warrant, but that before he is required to issue same under the provisions of said section 14 he must determine for himself whether the claim is or not made in pursuance of a specific appropriation. If no such appropriation has been made as a basis for the claim, the Comptroller is not required to issue the warrant; but, on the other hand, if such appropriation has been made, and the requisition for the warrant is made in pursuance thereof, his duty to issue the warrant is mandatory, and he cannot lawfully withhold the issuance of the warrant.

Respondent's answer filed in this case does not disclose any reason why he refused to issue relator a warrant for his salary, which was due him for the month of September, 1911; but we find in the sixteenth paragraph of respondent's petition an allegation, in substance, that respondent refused to issue such warrant upon the sole ground, as stated by him, that the appropriation made by the first called session of the Thirty-Second Legislature for the support of the Attorney General's department had been vetoed in whole by the Governor, and that there was no legal appropriation available against which the Comptroller was authorized by law to draw his warrant. While the respondent contends that the entire appropriation for the Attorney General's department was vetoed by the Governor, the relator contends that no part of such appropriation has been vetoed; that the appropriation for this department was made in a single item, and that no authority was given the Governor by the Constitution to veto a part of an item, and that in attempting to veto a part of an item the veto message was ineffectual and void as to all of said appropriation. These constitute the main questions for decision by this court and we proceed to their determination.

On the 26th day of August, 1911, at its first called session the Thirty-Second Legislature of this state passed and sent to the Governor for his approval the general appropriation bill, carrying the grand total sum of $10,208,613.85, divided into two sums of $5,558,621.85 for the year ending August 31, 1912, and $4,649,992 for the year ending August 31, 1913, and making specific appropriations for the maintenance of the general government and all of its departments, charitable institutions, etc. The enacting clause of the bill is in words and figures as follows: "An act making appropriations for the support of the state government for two years beginning September 1st, 1911, and ending August 31st, 1913, and for other purposes, and prescribing certain regulations and restrictions in respect thereto; to make additional appropriations for the support of the state government for the year ending August 31st, 1911, and to pay various miscellaneous claims against the state, and declaring an emergency." The first section of the bill making the appropriation for the support of the government is as follows:

"Be it enacted by the Legislature of the state of Texas:

"Section 1. That the following sums of money, or so much thereof as may be necessary, be, and the same are hereby appropriated out of any money in the state treasury not otherwise appropriated for the support of the state government from September 1st, 1911, to August 31st, 1913, and for other purposes, and for additional amounts to support the state government for the year ending August 31st, 1911, and to pay deficiencies enumerated herein, created according to law prior to August 31st, 1911; provided that each and every employé of each and every institution or department of this state shall be paid by voucher issued in his or her name; said voucher should state the amount of salary or sum due, and for what service performed, with the date and time of said service, and no money or moneys shall be paid except upon presentation of said voucher or vouchers endorsed by the payee; provided, further, that all of said vouchers upon which any money or moneys have been paid shall be filed with the Comptroller for the inspection of the Governor and the Legislature or by their authority; and provided further, that the correct account shall be kept for all sums paid, or obligations outstanding, against each item of appropriation herein and weekly statements of the net balances to the credit of each account, after all payments made and obligations outstanding have been deducted, shall be forwarded to the State Comptroller, and it shall be unlawful for the state purchasing agent or the authority in charge of any institution or department of this state to purchase or issue orders for any supplies or to otherwise pledge the credit of this state beyond the amount herein appropriated or otherwise lawfully authorized."

Immediately following section 1 of the bill, and on the right margin of the bill, will be found the following words, which are carried through the entire bill and preceding the appropriation of each department:

                              "For the Years Ending—
                     "August 31st, 1912—August 31st, 1913."
                

Following section 1 of the bill, which makes the appropriation, come in consecutive order, the Executive Office, Mansion and Grounds, Department of State, State Revenue Agent, Public Buildings and Grounds, Department of Insurance & Banking, Texas Library and Historical Commission, State Tax Board, State Purchasing Agent, Public Printing, Bureau of Labor Statistics, State Inspector of Masonry, Public Buildings and Works, Adjutant General's Department, Texas State Board of Health, Game, Fish & Oyster Commissioner, Live Stock Sanitary Commissioner, State Mining Board, and Pure Food Commission, for all of which subjects and departments large appropriations are made, without any repetition of the appropriating language found in section 1 of the bill, until the next succeeding department is reached, which is the Attorney General's department. The words "for the years ending August 31st, 1912—August 31st, 1913," are carried forward and repeated at the beginning of the appropriation for each subject and department. In making the appropriation for the Attorney General's department will be found the language and arrangement as follows:

                      "Attorney General's Department
                                  For the Years Ending—
                               August 31, 1912—August 31, 1913
                For the support and maintenance
                 of the Attorney General's department
                 including postage, stationery
                 telegrams, telephones
                 furniture, repairs, express, typewriters
                 and fittings, contingent
                 expenses, costs in civil cases in
                 which the state of Texas or any
                 head of a department is a party
                 for the actual traveling expenses
                 and hotel bills incurred
                 by the Attorney General or any
                 of his assistants or employés in
                 giving attention to the business
                 of the state elsewhere than in
                 the city of Austin; for depositions
                 and procuring evidence and
                 documents to be used in civil
                 suits or

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