Institute for Ed. of Mute and Blind v. Henderson

• Decision Date: 21 November 1892
• Citation: 18 Colo. 98,31 P. 714
• Parties: INSTITUTE FOR EDUCATION OF MUTE AND BLIND v. HENDERSON, Auditor.
• Court: Colorado Supreme Court

31 P. 714

18 Colo. 98

INSTITUTE FOR EDUCATION OF MUTE AND BLIND v. HENDERSON, Auditor.

Supreme Court of Colorado

November 21, 1892

Error to district court, Arapahoe county.

Mandamus, at the relation of the Institute for the Education of the Mute and Blind, to compel John M. Henderson auditor, to draw his warrant for amount of appropriation for plaintiff institution. From a judgment denying mandamus, plaintiff brings error. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

Plaintiff in error, the Institute for the Education of the Mute and Blind, as plaintiff below, brought this action for the purpose of compelling the auditor of state to draw his warrant for the amount of an appropriation made by the last general assembly for the maintenance of the plaintiff institution. The auditor, as a defense to the action, claims that there were no funds in the state treasury wherewith to pay the appropriation. Upon final hearing in the court below this defense was established to the satisfaction of the court, and the writ of mandamus denied. The case comes have by writ of error. The following stipulation of counsel may fairly be said by embody the material facts established by the evidence introduced upon the trial 'It is hereby stipulated by and between the above-named parties, by their respective counsel, that the record and bill of exceptions in the above-entitled case disclose that if a certain act of the legislature entitled 'Bounties,' approved April 18, 1889, commonly known as the 'Bounty Law,' a certain other act, entitled 'Trees,' approved February 12, 1881, and a certain other act, entitled 'Loco or Poison Weed,' approved March 14, 1881, are unconstitutional, that the funds remaining in the hands of the treasurer will be sufficient to pay the appropriation of plaintiff in error, mentioned in the petition; but if said laws be constitutional, and the funds of the state shall be diverted for the payment of bounties under said law, then there will be no funds out of which to pay said appropriation.'

Butler & McKinley and H. Riddell, for plaintiff in error.

J. H. Maupin, Atty Gen., and H. B. Babb, for defendant in error.

HAYT C.J., ( after stating the facts.)

In this proceeding the constitutionality of the bounty law of 1889, the loco weed law of 1881, and the act in relation to forest trees of 1881, is contested. The first of these acts, in the order in which they occur in the stipulation of counsel, is entitled 'An act to provide for the destruction of wolves, coyotes, bears, and mountain lions, and providing for a premium therefor.' By this act it is provided that any person who shall kill any of the animals mentioned shall be entitled to a certain fixed premium therefor. This premium varies in amount for the different animals named. Sess. Laws 1889, p. 35. The second act covered by the stipulation is entitled 'An act to encourage the planting of trees upon the roadsides, and along the line of irrigating canals, and upon lands under irrigation.' This act provides that the planting of trees as specified therein shall not increase the value of the lands for the purpose of assessment and taxation. Furthermore, a premium of $2 for every 100 trees so planted and growing after 3 years shall be paid each year for 7 years after the first 3 years have elapsed. Sess. Laws 1881, p. 250. The third act provides that any person who shall dig up any loco or poison weed in accordance with the provisions of the act 'shall receive a premium of 1 1/2 cents per pound for each pound of such weed dug up.' Sess. Laws 1881, p. 177. The premiums provided by each of these several acts are to be paid in the first instance by the county treasurer of the proper county; the amount to be credited to such officer in his settlement for state taxes with the state treasurer. it must be admitted that the state funds, and not the funds of the county, are drawn upon for the payment of the bounties provided for by these several acts. That the legislature has the power to provide for the payment of bounties is not contested. It is contended, however, that these acts are in conflict with article 5, § 33, of the state constitution, which says: 'No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof.' Under this provision, when money has been actually paid into the state treasury, a statute providing for its payment other than by appropriation and warrant is void. No argument is needed to demonstrate this. The language employed admits of no other construction. The question presented is therefore narrowed to this: Does this constitutional inhibition apply merely to such money as actually reaches the treasury, or does it apply to funds belonging to the state which have not yet reached the hands of the treasurer?

Counsel, in argument, inveigh against the policy of this legislation. However strongly the practice of paying out money in the manner authorized in these acts is to be condemned as dangerous and improvident, this is an argument properly addressed to the legislative branch of the government, and not to the courts. The argument here can only be given weight in proportion as it affects the power of the legislature in the premises.

The provision of the constitution relied upon to overthrow these acts varies from that of most of the other states, in that it requires, not only an appropriation, but also a warrant to be drawn, before money can be lawfully paid. Provisions upon the subject are, however, to be found in the national constitution, and in nearly all of the state constitutions which show that the framers of such instruments have with great unanimity considered that a danger existed which should be guarded against. The provision in the national constitution is as follows: 'No money shall be drawn from the treasury but in consequence of appropriations made by law, and a regular statement and account of the receipts and expenditures of all public moneys shall be published from time to time.' Article 1, § 9, par. 6. In speaking of the purposes of this section of the constitution, a learned commentator says. 'The object is apparent upon the slightest examination. It is to secure regularity, punctuality, and fidelity in the disbursements of the public money. As all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses and debts and other engagements of the government, it is highly proper that congress should possess the power to decide how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation, and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. In arbitrary governments the prince levies what money he...