Leddy v. Cornell

• Decision Date: 06 January 1912
• Citation: 52 Colo. 189,120 P. 153
• Parties: LEDDY, Auditor, v. CORNELL.
• Court: Colorado Supreme Court

120 P. 153

52 Colo. 189

LEDDY, Auditor, v. CORNELL.

Supreme Court of Colorado, En banc

January 6, 1912

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Application for mandamus by Herbert W. Cornell against Michael A. Leddy as Auditor of the State of Colorado. Decree for plaintiff issuing a peremptory writ, and defendant brings error. Reversed and remanded, with directions to dismiss complaint and writ.

Benjamin Griffith, Atty. Gen., for plaintiff in error.

Edwin Van Cise, Frank L. Grant, and Philip S. Van Cise, for defendant in error.

BAILEY J.

In 1907 the legislature passed an act (Laws 1907, p. 262) relating to civil service, which provided, among other things, that the governor should appoint three persons as civil service commissioners to perform certain duties therein specified. Section 3 is as follows:

'They (the commissioners) may appoint a secretary who shall be chief examiner, who shall superintend under their direction any examination under this act, and perform such other duties as they may prescribe. The secretary shall be paid a salary not to exceed eighteen hundred dollars a year, and his necessary travelling expenses actually incurred in the discharge of his official duties. They may also employ such other clerical assistance as may be necessary to carry out the provisions of this act.'

Section 12 provides:

'Every applicant for examination, except unskilled laborers, shall pay the State Treasurer the sum of one dollar, to be placed to the credit of the commission, in a special fund for the purpose of defraying so far as possible, the expenses to be incurred hereunder, and no one shall be examined until he or she exhibits the Treasurer's receipt therefor.'

In addition to the foregoing provisions of the act the following constitutional and statutory provisions are more or less involved in the question at issue, to wit: Section 32, art. 5, of the Constitution:

'Appropriation bills.--The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject.'

Section 33, art 5, of the Constitution:

'Disbursement of public money.--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.'

Section 6236, Revised Statutes of Colorado, 1908:

'Shall draw warrants on appropriation.--Sec. 91. In all cases of accounts audited and allowed against the state, and in all cases of grants, salaries, pay and expenses, allowed by law, the auditor shall draw a warrant on the treasurer for the amount due, in the form required by law; Provided, An appropriation has been previously made for such purpose.'

Section 6237, Revised Statutes, 1908:

'No warrant unless appropriation.--Sec. 92. No warrant shall be drawn by the auditor, or paid by the treasurer, unless the money has been previously appropriated by law; nor shall the whole amount drawn for or paid under one head ever exceed the amount appropriated by law for that purpose.'

The commission appointed the plaintiff, Herbert W. Cornell, its secretary and fixed his salary at eighteen hundred dollars a year. The eighteenth general assembly failed to make any appropriation for that department at all. The commission approved vouchers for the secretary's salary for the months of February, March, April and May, 1911, aggregating $600. These were presented to the state auditor for payment out of the general fund of the treasury, as state officers are paid. The auditor declined to issue warrants, on the ground that no appropriation had been made to pay this salary and there was, therefore, no money available for that purpose. Whereupon the secretary filed his complaint in the district court of the city and county of Denver to mandamus the state auditor to draw warrants for these vouchers. An alternative writ issued, and the auditor demurred to the complaint and writ upon the grounds that neither stated a cause of action, because it appeared therefrom that no appropriation had been made for the payment of the claims. The demurrer was overruled, the defendant declined to plead further, and elected to stand by the case as made on the law question thus raised. Thereupon there was judgment for a peremptory writ against the auditor, commanding him to draw warrants in payment of the vouchers. Objections were made and exceptions reserved to the ruling of the court on the demurrer and to the judgment entered, and the defendant brings the case here for review on error.

The contention of plaintiff was and is that, by the provisions of section 3 of the act, there is a continuing appropriation, and that it is the duty of the state auditor to draw warrants accordingly, without further legislative expression upon the subject. This the defendant controverts, and thus is presented the only question for consideration and determination.

The doctrine of continuing appropriations has been recognized and approved by this court. The question is whether this act, by the following provision: 'The secretary shall be paid a salary not to exceed eighteen hundred dollars a year, and his necessary travelling expenses actually incurred in the discharge of his official duties'--which is the only reference therein to compensation for the secretary of the commission, considered in connection with other provisions thereof, brings itself within the rule respecting such appropriations adopted by this court.

In 18 Colo. 193, 32 P. 272, In re Continuing Appropriations, it is said:

'While it is necessary that something more than a duty to pay must be shown, no set form of words is necessary to constitute an appropriation. It is sufficient in this regard, if the legislative intention clearly appears from the language employed. In no instance will an appropriation be inferred from doubtful or ambiguous language.'

In Institute v. Henderson, 18 Colo. 98, at page 102, 31 P. 714, at page 715 (18 L.R.A. 398), upon this subject it is further said:

'The case of Ristine, Auditor, v. State, reported in 20 Ind., commencing at page 337, will be found an exhaustive and valuable review of this provision. In the course of the opinion the court says:

"A promise by the government to pay money, is not an appropriation. A duty on the part of the legislature to make an appropriation is not such. A promise to make an appropriation, is not an appropriation. The pledge of the faith of the state, is not an appropriation of money with which to redeem the pledge. Usage of paying money in the absence of an appropriation, cannot make an appropriation for future payment. The question is to be settled upon the meaning of the constitution. Usage may be evidence of the meaning the administrative officers have put upon that instrument, and, as such, entitled to respectful consideration, but it is no binding interpretation; and the late usage was, in fact, probably commenced without consideration.' See, also, People ex rel. v. Spruance, 8 Colo. 530 .

'The necessity for an appropriation in each instance is dwelt upon in the opinion, and it is shown that an appropriation is not to be inferred from doubtful or ambiguous language.'

By no process of reasoning can it be held that the words of the act above quoted, considered...