Kingsbury v. Anderson

• Decision Date: 15 January 1898
• Parties: KINGSBURY v. ANDERSON, STATE AUDITOR
• Court: Idaho Supreme Court

51 P. 744

5 Idaho 771

KINGSBURY v. ANDERSON, STATE AUDITOR

Supreme Court of Idaho

January 15, 1898

MANDAMUS-APPROPRIATION-CONSTITUTION.-Constitution of Idaho, section 13, article 7, provides that no money shall be drawn from the treasury but in pursuance of appropriations made by law. Held, that in absence of an appropriation the auditor properly refused to issue a state warrant in payment for legal services of counsel employed by the state auditor under the provisions of section 1685 of the Revised Statutes of 1887. Said section does not make an appropriation for the payment of such services.

(Syllabus by the court.)

Original proceeding for writ of mandate.

Writ denied.

Johnson & Johnson, for Petitioner.

The moneys arising from the general revenues of the state constitute the general fund. All bills or accounts against the state are payable out of the general fund, except those claims or accounts which the statute directs must be paid out of specific appropriations. The bill is to be paid out of the treasury, hence out of the general fund. (Secs. 232, 1685.) Section 1685 is an appropriation within the meaning of the constitution. No particular form of appropriation is necessary. It is sufficient if the intent to make the appropriation is clearly evidenced by the language employed in the statutes upon the subject, or if it is evident that no effect can possibly be given to a statute unless it be construed as making the necessary appropriation. (Carr v State, 127 Ind. 204, 22 Am. St. Rep. 624, 26 N.E. 780.) No set form of words is necessary to constitute an appropriation, it being sufficient if the legislative intent to appropriate clearly appear. (Goodyknootz v. Acker, 19 Colo. 360, 35 P. 913.)

R. E McFarland, Attorney General, for Defendant.

No brief filed.

SULLIVAN C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an application for a peremptory writ of mandate to compel the state auditor to issue a warrant in favor of the petitioner for services rendered under and by virtue of the provisions of section 1685 of the Revised Statutes of 1887, which is as follows: "The controller or attorney general may employ other counsel than the district attorney and the expenses must be paid out of the territorial treasury." It is admitted that the petitioner was employed and rendered services for the state of the value of $ 750, and that the state auditor drew a warrant on the state treasury for $ 250 of that sum, and delivered the same to the petitioner, and that there remains due and unpaid to the petitioner $ 500 the balance of said claim. The authority of the auditor to make said employment under the provisions of said section is conceded by the attorney general, but he denies the authority of the auditor to issue a state warrant in payment of said claim on the ground that no appropriation has been made out of which said claim can be paid, while the petitioner contends that the last clause of said section makes such appropriation. The question for decision is: Does the last clause of said section, to wit, "and the expenses must be paid out of the territorial (not state) treasury," make an appropriation? Section 214 of the Revised Statutes is as follows: "In all cases of specific appropriations, salaries, pay and expenses, ascertained and allowed by law, found due to individuals from the territory, when audited, the controller must draw warrants upon the treasury for the amount; but in cases of unliquidated accounts and claims, the adjustment and payment of which...