Journal Pub. Co. v. Kenney

• Decision Date: 14 April 1890
• Citation: 24 P. 96,9 Mont. 389
• Parties: JOURNAL PUB. CO. v. KENNEY, State Auditor.
• Court: Montana Supreme Court

24 P. 96

9 Mont. 389

JOURNAL PUB. CO. v. KENNEY, State Auditor.

Supreme Court of Montana

April 14, 1890

Appeal from district court, Lewis and Clarke county; MW. H. HUNT Judge.

McCutcheon & McIntire, for appellant.

H. J Haskell, Atty. Gen., for respondent.

BLAKE C.J.

This is an appeal from the order of the court below denying the application of the relator for a writ of mandate to compel the auditor of the state to draw his warrant on the treasurer of the state in payment of an account. The affidavit, which accompanies the application, is not controverted, and recites the following facts: The Journal Publishing Company entered March 11, 1889, into a contract with the territory of Montana to do all the printing therefor, which is required by law. The account of the printing and advertising done by this company for the inspector of mines, an officer of the state under the contract, amounted to the sum of $389.39, and was presented March 1, 1890, to Kenney, the auditor of the state. This account was examined by the governor and auditor of the state, and found to be correct, March 4, 1890. Afterwards a demand was made of the auditor that he should draw his warrant on the treasurer of the state for the amount of the account in favor of the company, and the auditor refused to perform this act. Upon the hearing of the application, it was adjudged that the writ of mandate be denied upon the ground that the foregoing facts do not entitle the relator to this remedy. It is conceded that the claim of the relator against the state is valid, and the defense of the respondent is based upon the failure of the legislature to make an appropriation for its payment.

The provisions of the constitution, which are applicable to this controversy, declare that "no money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the public officer in pursuance thereof, except interest on the public debt." Section 34, art. 5. "No money shall be drawn from the treasury, but in pursuance of specific appropriations made by law." Section 10, art. 12. In State v. Hickman, 23 P. 740, it was decided that a clause of the constitution which fixed the salary of the secretary of state, and prescribed the times of its payment, was an appropriation made by law. It is obvious that this principle does not determine the question before us. The statute specifies the prices which shall be paid for the printing that has been authorized by the contract between the relator and the territory. Comp. St. div. 5, c. 98. The law further provides that the governor and auditor shall examine the "itemized account" of the contractor which shall be rendered "once in each month," and, "if they find it to be correct and in accordance with the provisions of this chapter, the auditor shall draw his warrant on the territorial treasurer for the payment of the same." Id. § 1636. "The auditor of the territory is hereby empowered to issue territorial warrants, drawn upon the treasury of the territory, in favor of all persons to whom the legislative assembly of the territory may direct." Id. c. 64 § 1122. The obligations of the territory, under the terms of the contract with the relator for the public printing, have been assumed by the state, and the constitution in the most solemn manner protects and enforces the rights of individuals, associations, and corporations which existed at the time when Montana was admitted into the Union. Article 20, schedule, §§ 1, 2, 9, 10, 12. This historic event operated as a repeal or amendment of "all laws enacted by the legislative assembly of the territory of Montana and in force" which were inconsistent with the constitution of the state. Article 20, schedule, § 1. The writ of mandate shall be issued "to compel the performance of an act which the law specially enjoins as a duty resulting from an office." Code Civil Proc. § 566. Are the foregoing provisions of the statute concerning printing consistent with the constitution? There is no law which appropriates in express language a certain sum for the payment of the claim of the relator. Is the auditor empowered. After the admission of the state into the Union to draw his warrant according to the territorial statute, supra?

The constitution of the United States provides that "no money shall be drawn from the treasury but in consequence of appropriations made by law." Article 1, § 9. The leading case upon the interpretation of this clause is Reside v Walker, 11 How. 272. This was a petition for a writ of mandamus to direct the secretary of the treasury to enter upon the books of his department the sum of $188,496.06 to the credit of, and to pay the same to, the plaintiff. Upon the trial of another action, the jury returned a verdict, and certified that the United States was indebted in this amount to James Reeside. A final judgment was entered in his favor therefor, which was in full force when this proceeding was commenced by his executrix. Mr. Justice WOODBURY, as the organ of the court, said: "No officer, however high, not even the president, much less a secretary of the treasury or treasurer, is empowered to pay debts of the United States generally, when presented to them. If, therefore, the petition in this case was allowed so far as to order the verdict against the United States to be entered on the books of the treasury department, the plaintiff would be as far from having a claim on the secretary or treasurer to pay it as now. The difficulty in the way is the want of any appropriation by congress to pay this claim. *** Hence the petitioner should have presented her claim on the United States to congress, and prayed for an appropriation to pay it. If congress after that make such an appropriation, the treasury can, and doubtless will, discharge the claim without any mandamus; but without such an appropriation it cannot and should not be paid by the treasury, whether the claim is by a verdict...