Aaron H. Grout, Secretary of State v. Benjamin F. Gates, State Auditor

• Decision Date: 07 March 1924
• Citation: 124 A. 76,97 Vt. 434
• Parties: AARON H. GROUT, SECRETARY OF STATE v. BENJAMIN F. GATES, STATE AUDITOR
• Court: Vermont Supreme Court

124 A. 76

97 Vt. 434

AARON H. GROUT, SECRETARY OF STATE v. BENJAMIN F. GATES, STATE AUDITOR

Supreme Court of Vermont

March 7, 1924

February Term, 1924. [Copyrighted Material Omitted]

PETITION for a writ of mandamus, preferred to the Supreme Court for Washington County and heard on the petition and answer at its February Term, 1924.

Complaint dismissed, without costs to either party.

NOTE--All the Justices concurred in the main portion of the opinion. On the question of whether an emergency existed, the decision was only by a majority, but the Court has failed to designate which of the Justices concurred or dissented on that phase of the case.

F. C. Archibald, Attorney General, and John C. Sherburne for the petitioner.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

The emergency board was created by section 38 of number 7 of the Laws of 1923, to consist of the Governor, the chairman of the finance committee of the Senate, the chairman of the appropriation committee of the Senate, the chairman of the ways and means committee of the house of representatives and the chairman of the appropriation committee of the house of representatives; (with a proviso not material to notice further). The Governor shall be chairman and the commissioner of finance the secretary of the board. The latter is required to keep minutes of each meeting of the board in a book kept for that purpose and such minutes shall be a public record. By section 39, "Said board shall have authority to make any expenditures necessitated by unforseen emergencies and may pledge the credit of the State for the same." The section then proceeds with specific provisions relating to repairing or rebuilding buildings or property of the State damaged by fire, followed by the provisions: "All sums of money used under the provisions of this section are hereby appropriated for the purposes mentioned in this section. Such monies and appropriations shall be used as said board may direct. Said board shall render an itemized statement, accompanied by vouchers, of the expenditures of all such money and the Auditor of Accounts shall print such statement in his biennial report." And by section 16 of number 8 of the laws of that year, section 39 of Act number 7 was amended by adding a new sentence to read as follows: "Said board shall not expend more than one hundred thousand dollars in any one year."

The emergency board professed to act upon the provisions quoted above from section 39, in adopting its resolution of October 26, 1923 (fully set forth in the statement of the case), and in its subsequent proceedings thereunder. Whether the board acted in the way provided in that section in cases of unforeseen emergencies, is discussed further on. While the defendant admits the allegations of the complaint contained in paragraphs 4, 5, 6, 7, 8, 10, 12, 13, and 14, he says the allegations of paragraph 9, "that the general assembly appropriated the sum of $ 100,000.00 to the uses of such emergency board for each fiscal year of the current biennial period, or so much thereof as may be necessary for emergency purposes," are matters of law, and asserts that in law there are no funds appropriated to the use of that board for either fiscal year of the current biennial period; that he now declines and will continue to decline to issue his warrant in payment of any requisition of the relator from said so-called appropriations of said board unless and until he shall be thereunto commanded by this Court. The defendant further asserts in his answer and in arguing the case that the facts alleged in the complaint and admitted by the answer do not amount to an unforeseen emergency within the meaning of said section 39; and asserts in his answer that the withdrawal of money from the treasury under and in pursuance of said resolution of the emergency board is contrary to section 27, Chapter II, of the Constitution; and that the defendant is without authority to issue warrants for expenditures made by said board under section 39 of number 7, Acts of 1923, including the expenditures purporting to be authorized by its aforesaid resolution.

The proper construction of the provisions of section 39, on the strength of which the emergency board professed to act, is therefore of paramount importance in the solution of the questions before us.

Adverting to the quotations given from section 39, it will be noted that by those provisions the statute has limited the thing to be done in a particular mode, and this being so, it includes a negative of any other mode. Raleigh & Gaston R. R. Co. v. Reid, 80 U.S. 269, 13 Wall. 269, 20 L.Ed. 570. The same principle is laid down in Smith v. Stevens, 77 U.S. 321, 10 Wall. 321, 19 L.Ed. 933, where the Court said: "It needs no argument or authority to show that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication prohibited their sale in any other way." In Zottman v. San Francisco, 20 Cal. 96, the court said: "The rule is general and applies to the corporate authorities of all municipal bodies; where the mode in which their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. The mode in such cases constitutes the measure of the power * * *. Aside from the mode designated, there is a want of all power on the subject. This is too obvious to require argument, and so are all the adjudications." To the same effect are Thomason v. Ruggles, 69 Cal. 465, 474, 11 P. 20; Heidelberg v. St. Francois Co., 100 Mo. 69, 75, 12 S.W. 914; Douglas County v. Keller, 43 Neb. 635, 644, 62 N.W. 60; Page v. Belvin, 88 Va. 985, 990, 14 S.E. 843. And in Taylor v. Taylor, 66 W.Va. 238, 19 Ann. Cas. 414, 66 S.E. 690, it was held that when a statute limits a thing to be done in a particular manner, or by a prescribed person or tribunal, there is an implication that it shall be done in no other manner, nor by a different person or tribunal.

The making of expenditures and appropriating public money are different things. The former is the "act of expending; a laying out of money; disbursement." The latter is: "to set apart for, or assign to, a particular person or use, in exclusion of all others." Webster's New Int. Dict. See Brown v. Honiss, 74 N.J.L. 501, 68 A. 150; Niles School v. Bailey, 161 Mich. 193, 126 N.W. 116; Ainsworth v. Dean, 21 N.H. 400.

It follows that by section 39 the emergency board is authorized to make any expenditures necessitated by unforeseen emergencies, but it alone is charged with the responsibility of making such expenditures, which it cannot delegate; and so the board is not authorized to appropriate or set apart money to some department or officer of the State to be so expended, although it may select a person connected therewith to make the expenditures under its direction as hereinafter stated.

This is made certain from the facts that by the same section of the statute all sums of money used under the provisions of that section were thereby specifically appropriated for the purposes mentioned in the section; that such moneys and appropriations shall be used as said board may direct; that said board shall not "expend" more than one hundred thousand dollare in any one year; and said board shall render an itemized statement, accompanied by vouchers, of the expenditures of all such money and the Auditor of Accounts shall print such statement in his biennial report. These provisions, taken with the one empowering the board to make such unforeseen emergency expenditures, can be given no construction as to the mode of operation, other than that provided by the statute, without doing violence to the rule requiring effect to be given, if possible, to every word, clause, and sentence of a statute. State v. Rutland R. R. Co., 81 Vt. 508, 71 A. 197; Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536.

It hardly seems necessary to state that the statute does not necessarily contemplate that the members of the emergency board, when an unforeseen emergency exists, shall themselves attend to or perform the detailed work in making such unforeseen emergency expenditures. Such detailed work may be done by the board through its agent or agents, the personnel thereof being within the control of the board. But the statute does contemplate that, in the interest of State economy and governmental efficiency, the board shall take the administration of the particular work there entrusted to it, and that the moneys and appropriations shall be used under the general direction and control of the board and in its official designation; and that the itemized statement, accompanied by vouchers, required by the last clause of the section, shall be rendered to the Auditor of Accounts by the board itself and in its name. Thus construed the statute carries into effect, as it should, the intention of the Legislature with reference to the manifest object to be accomplished by it. In re National Guard, 71 Vt. 493, 45 A. 1051.

In this connection we must not overlook the rule making it our duty to adopt a construction of the provisions of section 39 if possible, which will make them consistent with the Constitution. In re Barre Water Co., 62 Vt. 27, 20 A. 109, 9 L. R. A. 195; Cady, Admr. v. Lang, 95 Vt. 287, 115 A. 140. The Supreme Court of the United States, speaking through Mr. Justice White, says this rule is elementary and "plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." U. S. v. Delaware & H. Co, 213 U.S. 366, 53 L.Ed. 836, 849, 29 S.Ct. 527. To the same effect...