Goodykoontz v. Acker

• Decision Date: 15 January 1894
• Parties: GOODYKOONTZ, State Auditor, v. ACKER.
• Court: Colorado Supreme Court

35 P. 911

19 Colo. 360

GOODYKOONTZ, State Auditor, v. ACKER.

Supreme Court of Colorado

January 15, 1894

Error to district court, Arapahoe county.

Mandamus proceedings by Henry L. Acker, as inspector of metalliferous mines, against Floyd M. Goodykoontz, as state auditor, to compel the issuance of warrants for petitioner's salary. From a judgment for petitioner, respondent brings error. Reversed. Petition for rehearing denied.

The other facts fully appear in the following statement by HAYT C.J.:

Mandamus proceedings against the auditor of state to compel the issuance of warrants for the salary of the inspector of metalliferous mines. Judgment in the district court for petitioner. The state constitution provides that there shall be established and maintained the office of commissioner of mines. The legislature has, however, never created an office by this title, but by an act passed in 1883, and still in force, it did create the office of inspector of coal mines and by a subsequent act, passed in the year 1889, it created the additional office of inspector of metalliferous mines and provided for an inspector to be appointed by the governor, by and with the advice and consent of the senate who should hold his office for two years, or until his successor shall be appointed and qualified. See Sess. Laws 1889, p. 254. This act also provides, in section 13, that 'the inspector of metalliferous mines shall receive a salary of three thousand five hundred (3,500) dollars per year, and ten cents per mile for mileage actually and necessarily traveled in the discharge of his official duties said mileage not to exceed one thousand (1,000) dollars in any one year, to be paid monthly by the state treasurer out of any moneys appropriated for that purpose, on the certificate of said state inspector of metalliferous mines, showing services rendered and the amount thereof; and on presentation of such certificate to the state auditor by the person entitled thereto, he shall issue his warrant for the amount thereof, to be paid out of any appropriation as aforesaid. * * *' It is admitted by the pleadings that the defendant in error was duly appointed inspector of metalliferous mines, his commission bearing date April 20, 1893, and he at once accepted and entered upon the discharge of the duties of the office, and has ever since continued to, and still does, discharge the duties thereof. On the 2d day of November, 1893, the inspector, having performed the duties of his office for the preceding months of August, September, and October, presented vouchers for his salary, in due form, to plaintiff in error, the state auditor, and requested the issuance to him of warrants on the state treasurer for the salary. The auditor of state declined and refused to issue such warrants, upon the ground that no appropriation had been made for the payment of any salary to the inspector, whereupon the inspector presented his petition to the district court of Arapahoe county, praying for a writ of mandamus to compel plaintiff in error to issue warrants upon the state treasurer in payment of the salary as aforesaid. The auditor, by way of answer thereto, pleaded that no appropriation had been made by the ninth general assembly for the salary of the inspector of metalliferous mines, and also that there was no state fund out of which said salary could be legally paid. As the result of a hearing upon these pleadings, the district court ordered a peremptory writ of mandamus to issue against plaintiff in error, commanding him to issue warrants as prayed for in the petition. To this judgment the plaintiff in error duly excepted, and brings the case here upon error.

Eugene Engley, Atty. Gen., and H. F. Sale, for plaintiff in error.

W. D. Wright, for defendant in error.

HAYT, C.J., (after stating the facts.)

Was the defendant in error entitled to the peremptory writ of mandamus? It is admitted that no appropriation was made by the ninth general assembly of the state of Colorado for the payment of any salary to the inspector of metalliferous mines for the year 1893, and also that there is no state fund out of which such salary can be paid. Section 33 of article 5 of the constitution provides that 'no money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof.' Among the statutes passed in furtherance of this constitutional provision are the following: 'In all cases of accounts audited and allowed against the state, and in all cases of grants, salaries, pay and expenses, allowed by law, the auditor shall draw a warrant on the treasurer for the amount due, in the form required by law; provided, an appropriation has been previously made for such purpose.' Mills' Ann. St. § 1826. 'No warrant shall be drawn by the auditor, or paid by the treasurer, unless the money has been previously appropriated by law; nor shall the whole amount drawn for or paid under one head ever exceed the amount appropriated by law for that purpose.' Id. § 1827. The primary object of the foregoing provision of the constitution, and of the statutes passed in aid thereof, is to prevent the expenditure of the money of the people without their consent, expressed in the organic law or by constitutional acts of their legislature. An appropriation is made a prerequisite to payment in every instance. Institute v. Henderson, 18 Colo. 98, 31 P. 714.

Is there an appropriation out of which the salary of defendant in error should be paid? The argument in support of the affirmative is, in substance, as follows: No set form of words is necessary to constitute an appropriation; it is sufficient if the legislative intent to appropriate money for a specific purpose clearly appears from the statute; and when the salary of a public officer is fixed by law, together with the time and method of payment, this constitutes an appropriation, within the terms of our constitution and statutes. Although the decision are not uniform, it must be admitted that the trend of the more recent cases is in support of this argument. Carr v. State, (Ind.) 26 N.E. 778; 22 Am.St.Rep....