Henderson v. People ex rel. Wingate

• Decision Date: 17 October 1892
• Citation: 17 Colo. 587,31 P. 334
• Parties: HENDERSON, Auditor, v. PEOPLE ex rel. WINGATE, Treasurer.
• Court: Colorado Supreme Court

31 P. 334

17 Colo. 587

HENDERSON, Auditor, v. PEOPLE ex rel. WINGATE, Treasurer.

Supreme Court of Colorado

October 17, 1892

Error to district court, Arapahoe county.

Statement by the Court:

Proceeding by mandamus against the state auditor to compel him to issue his warrant for a certain legislative appropriation. Hon. John W. Wingate, treasurer of the Soldiers' and Sailors' Home, was relator, and Hon. John M. Henderson auditor of the state of Colorado, was respondent, below. A peremptory writ of mandamus was awarded against respondent in favor of relator. Respondent seeks a reversal of the judgment by writ of error. Reversed.

Syllabus by the Court

1. The act of March 15, 1889, appropriating to the Soldiers' and Sailors' Home a gross sum 'out of any funds in the treasury not otherwise appropriated,' does not amount to an appropriation out of the revenues of a particular year or years, merely because it provides that a part of such sum may be used during a particular year.

2. In order to compel the state auditor, by mandamus, to issue his warrant for an appropriation, it must clearly appear either that there were, at the date of the appropriation, funds in the treasury, not otherwise appropriated,--that is, revenue then provided for by law, and applicable for such appropriation,--sufficient to pay the same, or that the general assembly making such appropriation did, within constitutional limits, provide for levying a sufficient tax to pay such appropriation within the proper fiscal years.

3. A general appropriation act to defray the expenses of the executive, legislative, and judicial departments of the state government must take precedence over an appropriation for the Soldiers' and Sailors' Home.

4. It is the duty of every public officer connected with the administration of the state finances to treat as void each and every appropriation in excess of constitutional limits. Opinion in Re Appropriations by General Assembly, 22 P. 464 13 Colo. 323, 326, approved and applied.

Joseph H. Maupin, Atty. Gen., and H B. Babb, for plaintiff in error.

John A. Coulter and Morrison & De Soto, for defendant in error.

PER CURIAM.

By an act of the general assembly approved March 15, 1889, it was provided that a commission should be appointed to establish and maintain a soldiers' and sailors' home in this state for the care and treatment of honorably discharged soldiers, etc. Section 5 of said act is as follows: 'The sum of forty thousand dollars, or so much thereof as may be necessary, is hereby appropriated out of any funds in the treasury not otherwise appropriated, to be expended under the direction of said commission for the erection and maintenance of said home for the year 1889 and the year 1890, of which sum not more than twenty-five thousand dollars shall be used during the year 1889; and all moneys paid by the treasurer of the state to the treasurer of this commission shall be upon the attested vouchers, signed by the president and secretary of said commission.' Sess. Laws 1889, p. 345, § 6. From the record in this case it appears that, of the $40,000 thus appropriated, only $1,000 has been paid; that on October 2 1889, application was made to Hon. Louis Schwanbeck, then auditor of state, by the presentation of a properly attested voucher, signed by the president and secretary of said commission, to issue his warrant as auditor for the further sum of $15,000, and that he refused such application; also, that on May 13, 1891, respondent, upon presentation of a like voucher, refused to issue his warrant as auditor therefor. The object of this proceeding is to compel the issuance of such warrant.

It has been assumed by counsel in argument that section 5 of the act in question provided for an appropriation of $25,000 out of the revenues of the state treasury for the year 1889, and a further appropriation of $15,000 out of the revenues for the year 1890. This is incorrect. The act did not make an appropriation out of the revenues of any particular year. It made an...