Hughes v. Reeves
| Decision Date | 17 July 1922 |
| Docket Number | 5165 |
| Citation | 45 S.D. 538,189 N.W. 307 |
| Parties | JOHN F. HUGHES, Plaintiff, v. JAY REEVES, State Auditor, Defendant. |
| Court | South Dakota Supreme Court |
JAY REEVES, State Auditor, Defendant. South Dakota Supreme Court Original Proceedings #5165--Writ denied. Byron S. Payne, Attorney General Attorneys for Plaintiff. Martens & Goldsmith Attorneys for Defendant. Opinion filed July 17, 1922
Plaintiff, a circuit judge, brings proceedings in mandamus against defendant as state auditor, to compel the issuance of a warrant on the state treasury for payment of necessary expenses incurred by him in holding terms of court in circuits other than his own, under authority of section 5184, Revised Code 1919, chapter 180, Laws 1921. By this section as amended, circuit judges are authorized to act in circuits other than the one in which they have been elected, at the request of or by agreement with the judge of such other circuit, and the Supreme Court or presiding judge thereof is authorized to require a circuit judge to perform such duties, and provides that:
"Any judge acting in any circuit other than his own under the provisions of this section shall be entitled to his necessary expenses in the performance of such duty, to be audited and paid out of any money in the state treasury not otherwise appropriated."
Section 9, article 11, of the state Constitution provides that:
Section 1, article 12, Constitution, also declares that:
"No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer."
Pursuant to the requirement of section 9, supra, the Legislature enacted article 3, Rev. Code 1919 (§§ 6934-6945), relating to state funds. Section 6942 of that chapter provides that:
"Money shall be paid from the state treasury only upon the auditor's warrant, and each warrant shall specify upon what fund or from what appropriation such warrant is to be paid: Provided," etc. (Not material here.)
Also chapter 3, prescribing the duties of the state auditor and chapter 4 prescribing the duties of the state treasurer (sections 5342-5352, Rev. Code 1919) section 5344 requires that:
"The state auditor shall make and keep in his office in suitable books ... separate accounts with each appropriation made by the Legislature, each fund arising from the sale of bonds and each current or permanent fund created by law, showing debits and credits of each separate fund or appropriation, by giving such fund credit for the full amount appropriated by law, and by charging it with the amounts drawn against it from time to time," etc.
It is the contention of the state auditor that under these constitutional provisions and the legislative enactments interpretive thereof chapter 180, Laws 1921, is not a valid appropriation for payment of plaintiff's claim. The precise point urged is that section 5184, as amended, which provides that such expenses are to be "audited and paid out of any money in the state treasury not otherwise appropriated," contains no limitation of the amount intended to be appropriated for the specific purpose, and that such limitation is an essential matter, which must be determined by some expression of the legislative will.
Plaintiff relies chiefly upon the decision of this court in Lonestaff v. Anderson, 146 N.W. 703. A careful consideration of the facts and the reasoning in that case convinces us that it is not decisive of the precise question before us. In that case, while the language of the appropriation act was, in substance, like that in the present case, each appropriation referred to moneys collected and placed in special funds, and the appropriations were expressly limited to the amounts which could be collected and placed in such funds under existing laws. In that case we held that the appropriation act itself, limiting the appropriation to the amount...
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