Green v. Purnell

• Decision Date: 20 July 1858
• Citation: 12 Md. 329
• Parties: MATILDA E. GREEN v. WM. H. PURNELL, Comptroller of the Treasury.
• Court: Maryland Court of Appeals

12 Md. 329

MATILDA E. GREEN v. WM. H. PURNELL, Comptroller of the Treasury.

Court of Appeals of Maryland.

Jul. 20, 1858

The Comptroller of the Treasury, being clothed by the constitution with the exclusive power of adjusting and settling public accounts, is not a mere ministerial officer, and cannot, therefore, be compelled, by mandamus, to perform any act, in the discharge of his duties, which involves the exercise of judgment and discretion.

A mandamus cannot issue in any case where discretion and judgment are to be exercised by the officer; it can be granted only where the act required to be done is merely ministerial, and the party is without any other adequate remedy.

The question, who is entitled to an appropriation in the general appropriation act, of a certain sum for " the rent of house for fire-engine," under a certain state of facts and under certain acts and a resolution of the Legislature is a question for the Comptroller to determine, in the exercise of his judgment and discretion.

APPEAL from the Circuit Court for Anne Arundel county.

This appeal is taken from an order of the court below, dismissing a petition filed by the appellant for a rule upon the Comptroller to show cause why a mandamus ought not to be issued, requiring him to issue his warrant upon the Treasurer for payment to the petitioner of the sum of $100 for rent of certain premises by her to the State, for the use of the State engine. The facts of the case are fully stated in the opinion of this court, as also in the following opinion of the court below, (BREWER, J.,) delivered upon passing the order appealed from:

" This is an application for a mandamus to the Comptroller of the Treasury to pay to the petitioner the sum of $100, which is claimed to be the rent for the year 1857 of an engine house rented by her to the State. To the rule to show cause, the defendant put in an answer, and the matter has been submitted in that state of the case, without any traverse or testimony.

The facts, as admitted by the answer and alleged by the defendant, appear to be, that resolution No. 9, of the session of 1849, appropriated to Mrs. Matilda E. Green $50 for the rent of an engine house, to be paid on the 1st of December of that year, and for every year thereafter, so long as the same should be rented to the State, but does not state the day of the commencement or end of the renting. Regular successive appropriations were made every year, of the same sums, for the rent of an engine house, without specifying to whom, until 1856, when $100 was appropriated, also without specifying to whom it was to be paid. Mrs. Green received the rent of $50 up to the 1st of December 1856, and her house was occupied by the State up to the 1st of January 1857, when it was removed by the Librarian, who, by the act of 1856, ch. 314, had the superintendence of the engine, and placed it elsewhere.

The petitioner's counsel considers the resolution of 1849 as the acceptance of a lease from Mrs. Green of her engine house by the State for the term of one year, and so on from year to year, at $50 per annum, and which could not be terminated by the State without legal notice to quit. Whether the resolution could be considered as a contract of that nature at the commencement, or could not be terminated by the State without the legal notice required on such contracts of renting between individuals, or whether it was not terminated by the act of 1856, ch. 328, appropriating double the amount for the same purpose, without specifying to whom it should be paid, it seems to me unnecessary to determine. This court cannot entertain suits against the State by individuals, in the usual or ordinary form, or by mandamus to compel the State, through any of its public officers, to fulfil its contracts. Where an unquestionable appropriation has been made by the State, of any portion of its funds, to be paid to any individual, by the constitution, laws and resolutions of the Legislature, the Comptroller is bound to issue his certificate to the Treasurer for its payment, and if he refuse, he may be compelled by mandamus. But when any claim is made against the State, on contract or otherwise, it is the duty of the Comptroller to investigate it, and to determine whether he has sufficient authority given him to decide upon its validity, and to issue a certificate for its payment. This court cannot undertake to sit in judgment upon his decisions.

The question, then, is, whether the various acts and resolutions of the Legislature, as referred to, can be considered as an appropriation of the sum of $100 to be paid to Mrs. Green, for the use of the engine house for the year 1857? The resolution of 1849 appropriates $50 only for the rent for that year, positively to be paid to her, and the same sum for every subsequent year that the house should be rented by the State from her. The house was rented and occupied up to 1857, and the rent paid accordingly. The act of 1856 appropriates $100 for the payment of rent for the engine house for 1857, but does not direct it to be paid to Mrs. Green, nor does it refer to the resolution of 1849, or appear to be connected with it, the latter being for $50, and the former for $100. If rented by her under the act, it would be a new renting, on different terms.

The Librarian, who had charge of the engine, would seem to be the proper person to rent the house, and to certify the fact in such form as would satisfy the Comptroller. Admitting the resolution of 1849 to be still binding on the State as a renting, for want of notice to quit, it could only be an appropriation for the sum there specified to be paid under that renting and appropriation, and the petitioner could only claim the $50. If she claims under the act of 1856, it is a new appropriation, and there must be a renting--an actual renting--not by implication or construction. All the appropriations for this purpose, since 1849, depended on the subsequent renting from her. The rent was then payable to her by the terms of the resolution. After the act of 1856, there was no appropriation of money to any individual; it was appropriated to a purpose. The individual to receive it depended his right to do so upon a contract to be made thereafter with some person authorized to rent. That person, I think, was the Librarian; he was authorized to rent the engine house, and to direct the rent to be paid to the landlord, or to receive it and pay it to him. The landlord had no right to require the Comptroller to pay the money to him, as an actual appropriation by law to him. If the rent is claimed from the State as on a contract with the State, or its legally authorized agent, and not an appropriation to the claimant, the proper accounting officer must judge of its validity. If he considers it invalid, and declines to pay, the claimant must resort to the appropriating department of the State. There is no provision made for suing the State in any form."

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Thos. S. Alexander for the appellant:

1st. The house and premises having been rented from the appellant by the Legislature, from year to year, so long as both parties should please, it was not competent for any other authority than the Legislature to determine that tenancy.

2nd. Under the terms of the renting, the tenancy was determinable only after six months' notice given prior to the end of a given year.

3rd. The year commencing from the 1st day of December, and terminating with the same day in the succeeding year, and it being admitted that the State remained in possession of the premises until the 1st day of January 1857, the appellant is entitled to treat the State as her tenant for the whole year 1857, and, therefore, to claim the sum of $100 appropriated by the act of 1856, ch. 328, for rent of house for State engine.

4th. There being an express appropriation of the money for the object, and clear evidence of the obligation of the State to pay the money to the appellant, it was the duty of the Comptroller to issue the warrant in her favor, as demanded by her, and on his refusal to do so, he may be compelled thereto by mandamus. 4 Md. Rep., 191, Thomas vs. Owens. 12 Pet., 609, Kendall vs. Stokes. 14 Pet., 497, Decatur vs. Paulding. 17 How., 225, United States vs. Seaman. Ibid., 284, United States vs. Guthrie. 31 Eng. C. L. Rep., 72, King vs. Lords Commissioners of the Treasury. 4 Eng. Law & Eq. Rep., 277, Regina vs. Lords of the Treasury.

N. Brewer, of Jno., for the appellee:

1st. The act of 1856, ch. 314, gives to the State Librarian the custody and superintendence of the engine, and authorizes him to rent the engine house. The language of the act, and the rules by which statutes are to be interpreted, require this construction to be given it. 3 G. & J., 66, Blizzard vs. Jacobs. 2 H. & J., 167, Beall's Lessee vs. Harwood. 4 G. & J., 1, Canal Company vs. The Rail Road Company.

2nd. The act of 1856, ch. 328, appropriates $100 for the payment of the rent of engine house for the year 1857. The appropriation is made, not to be paid to Mrs. Green, or any other individual, under this act, but the money is appropriated to a purpose, and the individual to secure it must do so through a contract with the Librarian, who was authorized to rent the engine house, and direct the rent to be paid to the landlord, or to receive it and pay it to him.

3rd. The petitioner has shown no legal claim to the appropriation of $100 made for the rent of house for fire engine for the year 1857, and had no right to require the Comptroller to pay the money to her, as an actual appropriation to her.

4th. This action is a suit against the State for an alleged violation of contract, and this court...