People ex rel. Ammons v. Kenehan

• Decision Date: 20 November 1913
• Citation: 136 P. 1033,55 Colo. 589
• Parties: PEOPLE ex rel. AMMONS, Governor, v. KENEHAN, Auditor of State.
• Court: Colorado Supreme Court

136 P. 1033

55 Colo. 589

PEOPLE ex rel. AMMONS, Governor, v. KENEHAN, Auditor of State.

Supreme Court of Colorado, En Banc

November 20, 1913

Original petition by the People, on the relation of Elias M. Ammons as Governor, for a writ of mandamus against Roady Kenehan, as State Auditor. Peremptory writ issued.

Fred Farrar, Atty. Gen., Francis E. Bouck, Deputy Atty. Gen., and Norton Montgomery, Asst. Atty. Gen., for petitioner.

William H. Malone and William H. Scofield, both of Denver, for respondent.

MUSSER C.J.

By permission of this court, there was filed by the Attorney General a petition entitled 'The People of the State of Colorado, on the Relation of Elias M. Ammons, as Governor of the State of Colorado, v. Roady Kenehan, as Auditor of State,' for an original writ of mandamus. Upon the filing of the petition, an order was made for the issuance of an alternative writ directed to the Auditor. In this alternative writ it was alleged that the relator is the Governor, charged by the Constitution and laws with the duty of enforcing the laws and maintaining the peace of the state; that he is the commander in chief of the military forces, and by the Constitution and laws vested with the power of calling out the military forces to execute the laws and preserve good order in the state; that the respondent is the Auditor; that there arose in the counties of Huerfano and Las Animas a condition of great violence and lawlessness, growing in force and extent until it was beyond the control of the peace officers of these counties; that property was destroyed human life deliberately and violently taken, and that the sheriffs of the aforesaid counties repeatedly informed the relator of their inability to restore law and order, and appealed to him as chief executive for assistance in executing the laws and suppressing violence; that thereupon the relator investigated the conditions existing in the said counties, and, deeming that the situation so demanded, issued an executive order to the Adjutant General authorizing and directing him to call into service and hold in readiness for immediate mobilization and action, and to mobilize, as many of the members of the National Guard of the state, in and near the Arkansas Valley, as may be necessary to maintain peace and good order in said counties; that thereafter, finding that conditions demanded further action, the relator, with the approval of the Attorney General made and issued to the Adjutant General an order directing that officer to order out and assume command of such troops of the National Guard as, in his judgment, might be necessary to restore and maintain peace and order in said counties, and to enforce obedience to the Constitution and laws of the state; that pursuant to the said orders parts of the military forces of the state were prepared, mobilized, and placed and kept in the field for the purpose of executing the laws and preserving and restoring peace and order in the said counties, and that, in the judgment of the relator, such action was and is necessary to the preservation of the laws and maintaining peace and order in the state; that the indebtedness incurred for expenses necessarily caused by these military movements includes the pay rolls of officers and members of the National Guard of the state, the necessary transportation, medical attendance and supplies, quarters, and subsistence, for which numerous claims for money exist against the state, and that no funds are available for the payment of the same; that the respondent has declared and still declares that he will not issue any certificates of indebtedness for and on account of any of the said claims unless ordered by a court so to do; that he has refused and still refuses to audit or adjust certain of said claims, though the same have been presented to and examined by him; that, among the claims which the Auditor refuses to audit and adjust, was the pay roll of Company A of the Second Regiment of the National Guard; that the pay roll contains the claims of the officers and men of that company, at the statutory rate of compensation, and that the same is true and correct and entitled to allowance by the Auditor; that, unless the lawful expense of the military forces called out by the Governor be promptly met by the audit and adjustment of the claims arising therefrom and by the issuance of certificates of indebtedness therefor, the executive branch of the state government will be irretrievably weakened, and the integrity and sovereignty of the state imperiled and impaired, the military forces demoralized, and anarchy substituted for the execution of the laws; that the refusal and delay of the Auditor was regardless of both the rights of the claimants and of the necessities of the state; that the unsettled conditions in the counties referred to still continue and may continue for a long period to come, and in the judgment of the Governor, it will be necessary for some time to keep military forces in the field for the purpose of executing the laws and restoring and maintaining peace and good order throughout the state; that certificates of indebtedness can be negotiated at par if promptly issued; that, if the respondent persists in his present refusal and delay, the state government will not only be weakened and endangered but the faith and credit of the state will be jeopardized, and it will be impossible for the state to obtain services or commodities except at a much higher price, if at all, than would otherwise be the case, and large sums of money will consequently be lost to the state and uselessly wasted, unless this court shall see fit to command respondent to do his duty. The claims for money new existing against the state for the pay roll of Company A, and to various individuals and firms for transportation, subsistence, and supplies necessary, are set out, and it is alleged that the said claims are just and correct, and that the Attorney General and Governor have at all times stood ready, and they now stand ready, to approve of each and all of them and of all other just claims for money heretofore or hereafter arising because of the military operations had for the purpose of executing the laws and restoring and maintaining the peace and good order of the state. It is alleged that the Governor has no plain, speedy, or adequate remedy in the ordinary course of law, and that the exigencies of the case require immediate and final action by this court through the extraordinary process of mandamus.

The alternative writ required the Auditor to proceed forthwith promptly, and without unnecessary delay, to audit and adjust the claims described in said petition as well as all other claims that may be presented for audit and adjustment in connection with the use and movement of the military forces as set forth, and, when such claims have been found to be correct, and when they have been approved by the Governor and by the Attorney General, to issue promptly, and without unnecessary delay, certificates of indebtedness therefor, or to show cause, on a day named, why he should not do so.

To this alternative writ, the respondent made return. In the opinion of the court this return is not such as to put in issue any of the material facts alleged which are necessary to a determination of the questions involved. Such allegations of the return as it may be necessary to specifically mention will be noticed at the proper time in this opinion. The return in effect is a demurrer to the alternative writ, and was in effect so treated by the respondent in the oral argument and in his brief.

This action is brought to compel the Auditor to act in and to proceed with the discharge of his duties as set forth in section 6239, Rev. Stat. 1908, which, so far as is material to this case, is as follows: 'In all cases where the laws recognize a claim for money against the state, and no appropriations shall have been made by law to pay the same, the Auditor shall audit and adjust the same, and when the said claim shall have been approved by the Governor and Attorney General, he shall give the claimant a certificate of the amount thereof, under his official seal if demanded, and shall report the same to the General Assembly, with as little delay as possible, giving a statement in tabular form of the number, date of issue, and amount of each certificate, and for what purpose issued.'

Under this section, if a claim is one which the laws recognize as a claim for money against the state, and no appropriation has been made to pay such claim, it is then the duty of the Auditor to act and to proceed with the discharge of his duties as set forth in the section. The first question to be determined is, Are the claims which have been presented to the Auditor for audit and adjustment under that section such as are recognized as claims for money against the state? Second, if they are such claims, has any appropriation been made by law to pay them?

Section 4409, Rev. Stat. 1908, is as follows: 'Officers and enlisted men when serving under the orders of the Governor or of a sheriff, mayor or judge, to prevent violation of the laws of the state, or to prevent or suppress riot or insurrection or to repel or prevent invasion, shall, until such time as other provision is made for the payment for the services rendered, receive pay out of the general fund of the state at the following rates: All commissioned officers shall receive the same pay as is paid to the United States army officers of like grade, less 20 per cent. Sergeant majors quartermaster sergeants and hospital stewards shall be paid the sum of two dollars and forty cents per day for the first twenty days' service: First Sergeants and acting hospital stewards, two dollars and thirty...