Goodykoontz v. People ex rel. Sawyer

• Decision Date: 05 December 1894
• Citation: 38 P. 473,20 Colo. 374
• Parties: GOODYKOONTZ v. PEOPLE ex rel. SAWYER.
• Court: Colorado Supreme Court

38 P. 473

20 Colo. 374

GOODYKOONTZ v. PEOPLE ex rel. SAWYER.

Supreme Court of Colorado

December 5, 1894

Error to district court, Arapahoe county.

Application in the district court for writ of mandamus on the relation of A. M. Sawyer. Judgment was rendered awarding the peremptory writ, commanding the state auditor, F. M. Goodykoontz, to issue his warrant for the payment of the residue of a certain legislative appropriation for the Soldiers' and Sailors' Home. The auditor seeks a review and reversal of the judgment by writ of error. Reversed.

Thomas Hartzell, and Bryant & Lee, for plaintiff in error.

Felker & Dayton, for defendant in error.

ELLIOTT J.

1. To care for the nation's defenders when they have become infirm and indigent is a public as well as a patriotic duty recognized by all civilized countries.

In this state such duty has the sanction of the constitution. Article 8 provides: 'State Institutions. Section 1. Educational reformatory and penal institutions and those for the benefit of the insane, blind, deaf and mute, and such other institutions as the public good may require, shall be established and supported by the state, in such manner as may be prescribed by law.' The Soldiers' and Sailors' Home, established by the act of 1893, is a state institution; and it is entitled to be supported by the state, the same as other state institutions, except that those institutions in which the inmates are involuntarily confined may be entitled to the preference in case the public revenues are not sufficient for all.

2. The controversy in this case arises over the following legislative act: 'Section 1. The sum of forty thousand (40,000) dollars is hereby appropriated out of the general fund to be expended by the board of commissioners of the Soldiers' and Sailors' Home, for increasing the facilities for the payment of certain debts already incurred and for the maintenance thereof, for the years 1893 and 1894. Approved (with emergency clause) April 3, 1893.' Sess. Laws, p. 56. Every legislative act making an appropriation, where the money appropriated is not actually in the treasury, as in this case, should specify the revenue of the particular fiscal year out of which the appropriation is to be paid. This view has been repeatedly expressed. In re Appropriations by General Assembly, 13 Colo. 316, 22 P. 464; Henderson v. People, 17 Colo. 587, 31 P. 334. This doctrine is based upon the language of our constitution in reference to appropriations,--language well calculated to protect the credit of the state, and, if observed, certain to prevent the accruing of indebtedness by reason of appropriations or expenditures for the ordinary purposes of the government. In this case it is urged with much force and reason that we should declare the appropriation made in 1893 for the Soldiers' and Sailors' Home void because it does not specify with sufficient particularity the fund or the revenue out of which the same is to be paid. It is strange that the act should have been passed in such form, in view of the decision rendered just before the meeting of the last general assembly, relating to an appropriation for the same institution. See Henderson v. People, supra. But we are not prepared to hold that every appropriation made in such form is void, though it is clear that if the legislature fails to specify definitely the revenue of the fiscal year out of which an appropriation is to be paid, where the money is not already in the treasury, the auditor must determine such question for himself, or else refuse to issue his warrant therefor. The auditor is not authorized to exercise an arbitrary or irreversible judgment in such matter, but he may determine the question for himself, provided he can, from the language and purposes of the act, ascertain with reasonable certainty the fund or revenue out of which it was intended the appropriation should be paid. He must necessarily observe the greatest caution in determining such question; otherwise, he may become responsible for issuing warrants in excess of the revenue.

3. The auditor should not exercise any personal preference in drawing warrants for the payment of legislative appropriations. His duty is to...