Holmes v. Olcott

• Decision Date: 13 April 1920
• Citation: 96 Or. 33,189 P. 202
• Parties: HOLMES v. OLCOTT, SECRETARY OF STATE, ET AL.
• Court: Oregon Supreme Court

189 P. 202

96 Or. 33

HOLMES v. OLCOTT, SECRETARY OF STATE, ET AL.

Supreme Court of Oregon

April 13, 1920

In Banc.

Appeal from Circuit Court, Marion County; Geo. G. Bingham, Judge.

Suit by H. A. Holmes against Ben W. Olcott, Secretary of State, and others, constituting the State Board of Fish and Game Commissioners. Decree for plaintiff, and defendants appeal. Reversed, and suit dismissed.

The plaintiff alleges that he "is a resident and inhabitant of Multnomah county, state of Oregon, and a taxpayer in said state and county, and brings this suit in his own interest and in the interest of all other taxpayers in the state of Oregon to prevent the illegal disbursement of public funds which he alleges to be true upon information and belief"; that the defendant Ben Olcott is secretary of state, and with the other defendants constitutes the state board of fish and game commissioners, of which he is ex officio chairman; that the commission was created by virtue of chapter 287, Laws 1915; and that about July 3, 1919, the members thereof "authorized the purchase of a game farm in Lane county for the propagation of Chinese pheasants," known as the Reddishfarm, at an agreed price of $7,680, payable in installments from and out of the public funds in the hands of the defendant Hoff as state treasurer. The complaint states that on the date last mentioned the commission "approved the payment of a claim in the sum of $2,000 as the first installment of the purchase price of said game farm"; that, as secretary of state, the defendant Olcott threatens to and will audit said claim when it is presented and will draw his official warrant for the amount thereof on the defendant Hoff; that, unless restrained and enjoined, the defendant Hoff threatens to and will pay said warrant; and that the other members of the commission will approve further claims for the payment of the balance of the purchase price. It is next alleged that "under and by virtue of chapter 287, Laws 1915, all moneys collected for license fees for hunting and fishing are required to be deposited to the general funds of the state of Oregon," and for the reason that the Legislature has not enacted any law authorizing the purchase of the farm or made any appropriation therefor, "the auditing of the said claim and the drawing of a warrant therefor by the defendant secretary of state and the payment thereof by defendant state treasurer will be a withdrawal of said money from the state treasury in direct violation of section 4 of article 9 of the Constitution of the state of Oregon"; that by the payment of such warrant "the funds of the state of Oregon will be dissipated and lost, and plaintiff's burden of taxation will thereby be appreciably increased, to his irreparable damage." The plaintiff prays for a decree enjoining the auditing and payment of the $2,000 and the allowance of any further claims for the payment of the balance of the purchase price "and the cost of operation and maintenance of said game farm."

To this complaint the defendants filed a demurrer on the following grounds:

"That the plaintiff has not legal capacity to sue.

"That there is a defect of parties defendant for the reason that Frank E. Reddish, the vendor of the lands payment for which is sought to be enjoined by the plaintiff, is a necessary party to said suit.

"That said complaint fails to state facts sufficient to constitute a cause of suit against said defendants or any of them."

This was overruled on September 3, 1919. The defendants elected to stand on their demurrer, and on November 3d following the court rendered a decree as prayed for in the complaint enjoining the issuance and payment of said warrant. The defendants appeal, claiming that the court erred in not sustaining their demurrer and "in not giving and entering judgment and decree in favor of the defendants."

George M. Brown, Atty. Gen. (I. H. Van Winkle, Asst. Atty. Gen., on the brief), for appellants.

William P. Lord, of Portland (Arthur I. Moulton, of Portland, on the brief), for respondent.

JOHNS J. (after stating the facts as above).

Section 4 of article 9 of the Constitution provides:

"No money shall be drawn from the treasury but in pursuance of appropriations made by law."

Section 7 of the same article is as follows:

"Laws making appropriations for the salaries of public officers and other current expenses of the state shall contain provisions upon no other subject."

The decision of this case depends upon the construction of those sections.

Section 4 is historical and is identical with that of the federal Constitution and the organic law of numerous states. Such provisions are substantial copies of declaratory acts or resolutions of the British Parliament which were adopted when British subjects were claiming and asserting their rights. In the early government of England the king levied, collected and expended the public revenues. Through a series of reforms, after the revolution of 1688 it finally became a law that the king could not use the public money unless it was specially appropriated by an act of Parliament. The abuse to be corrected by the establishment of the principle was in the exercise of official discretion with regard to the expenditure of public money. The purpose to be accomplished was to impose upon the legislative power this duty and to give to it alone the right of specifying the particular demands against the state which should be paid from time to time out of public funds.

It will be noted that section 4 of article 9 does not specify how an appropriation shall be made, or when it shall be made. Hence those questions become important.

In the leading case of Ristine v. State of Indiana, 20 Ind 328, the Supreme Court of that state said:

"Appropriation, as applicable to the general fund in the treasury, may, perhaps, be defined to be an authority from the legislature given at the proper time, and in legal form, to the proper officers to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the state."

In 1 Words and Phrases, p. 471, we find:

" 'Appropriation' is the setting apart from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and for no other."

"To appropriate means to allot, assign, set apart, or apply to a particular use or purpose. An 'appropriation,' in the sense of the Constitution, means the setting apart a portion of the public funds for a public purpose, and there must be money placed in the fund applicable to the designated purpose to constitute an appropriation."

"An 'appropriation' of money to a specific object is an authority to the proper officers to pay the money because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer is authorized to pay such warrant if he has appropriated money in the treasury." In State ex rel. Norfolk Beet Sugar Co. v. Moore, 50 Neb. 88, 69 N.W. 373, 61 Am. St. Rep. 538, it is held:

"An appropriation, within the meaning of our Constitution, is the setting apart by law of a certain sum from the public revenue for a specified purpose, so that the executive officers are authorized to expend that sum, and no more, for that purpose, and no other.

"An appropriation is not specific if it leaves the amount to be expended to be limited only by the extent of claims which may regularly be made upon it by the recipients; the amount of those claims being uncertain."

The opinion also quotes with approval the definition of "appropriation" in Ristine v. State of Indiana, supra. In Clayton v. Berry, 27 Ark. 129, it is said that "appropriated by law" means the act of the Legislature setting apart or assigning to a particular use a certain sum of money to be used in the payment of debts or dues from the state to its creditors. In Humbert v. Dunn, 84 Cal. 57, 24 P. 111, the court said:

"Has the Legislature fixed the amount of the claim and designated its payment out of a certain fund? These are the only things necessary to the validity of the appropriation."

In People v. Brooks, 16 Cal. 11, it is held:

"To an appropriation, within the meaning of the Constitution, nothing more is requisite than a designation of the amount and the fund out of which it shall be paid."

Stratton v. Green, 45 Cal. 149, holds that by a "specific appropriation" is understood an act by which a named sum of money has been set apart in the treasury and devoted to the payment of a particular claim or demand. This last definition is approved by the Supreme Court of Nevada in State v. LaGrave, 23 Nev. 25, 41 P. 1075, 62 Am. St. Rep. 764. The opinion in State ex rel. Norfolk Beet Sugar Co. v. State, after quoting from these authorities, says:

"It will be observed that each of these definitions includes as one of its requisites certainty as to the amount appropriated."

On another point of construction, section 4 of article 9 of the Constitution was before this court in Shattuck v. Kincaid, 31 Or. 379, 49 P. 758, where in a well-considered opinion by Mr. Justice Wolverton it is held:

"An 'appropriation' is a setting aside or designation of particular funds for the discharge of certain definite and specified obligations, and may relate to a fixed amount of liability or to one that is continuing."

The following quotation is there made from the case of Ristine v. State of Indiana, supra:

An "appropriation, as applicable to the general fund in the treasury, may, perhaps, be defined to be * * * an authority from the Legislature, given at the proper time, and in legal form, to the proper officers, to apply sums of money out of that

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