Prime v. McCarthy

• Decision Date: 14 December 1894
• Citation: 61 N.W. 220,92 Iowa 569
• Parties: PRIME, ADJUTANT GENERAL, v. MCCARTHY, AUDITOR.
• Court: Iowa Supreme Court

92 Iowa 569

61 N.W. 220

PRIME, ADJUTANT GENERAL,

v.MCCARTHY, AUDITOR.

Supreme Court of Iowa.

Dec. 14, 1894.

Appeal from district court, Polk county; W. A. Spurrier, Judge.

Action of mandamus for an order commanding the defendant, as auditor of state, to issue his warrants upon the state treasury for the payment of a certain claim audited and certified by the executive council. An order was granted as prayed, and defendant appeals. Affirmed.Cummins & Wright, for appellant.

John Y. Stone, Atty. Gen., for appellee.

GIVEN, J.

1. The claim in question is for the subsistence and compensation of a part of the military force of the state while in the actual service of the state, under an order of the governor, to prevent breaches of the peace, of which there was imminent danger. The occasion upon which this military force was ordered into actual service was when 1,200 or more destitute men, commonly known as “Kelley's Army,” were about to enter the state in a body at Council Bluffs, Pottawattamie county. The reasons for his action are stated by the governor in his evidence as follows: “I received such information as led me to believe that they intended to cross the Missouri river at Council Bluffs, with the purpose to cross this state from west to east; that they had no means of subsistence except what they could take by force; and that their purpose was to commit breaches of the peace along their line of march across the state in securing subsistence and transportation, unless the same should be reluctantly given them by the citizens of the state. In this belief, and for the purpose of preventing or avoiding the disorder and the breaches of the peace thus threatened, I, as governor and commander in chief, ordered out eight companies of the Iowa National Guard, and directed them to concentrate at Council Bluffs, ordering General John R. Prime, adjutant general, to repair there at once, and assume immediate command of the united forces. This I did under the authority of section 4 of chapter 74 of the Acts of the 18th General Assembly.” No question is made, in this case, as to either the authority or necessity for the governor's action. Neither is it questioned but that the claim is just and correct, and should be paid. It is conceded that the adjutant general is entitled to receive the entire sum due, $4,102.11, from the source by which it is payable, for disbursement to the persons entitled thereto. The claim was presented by the adjutant general, under whose immediate command the services were rendered, and upon whose order the expenses were incurred, to the executive council, by whom it was audited and certified under section 120 of the Code. Appellant refused to issue a warrant on the treasurer for the payment of this claim on the certificate of the executive council, and in support of his position contends that the claim is chargeable to Pottawattamie county, under section 8, c. 74, Acts 18th Gen. Assem., and that, if not so payable, it is payable out of the appropriations made in section 51 of said chapter 74, and the additional appropriations thereto made,--section 5, c. 65, Acts 20th Gen. Assem., and section 19, c. 31, Acts 24th Gen. Assem.

2. We first inquire whether the claim is chargeable to Pottawattamie county. Section 5 of said chapter 74 is as follows: “In case of any breach of the peace, tumult, riot or resistance to process of this state, or imminent danger thereof, it shall be lawful for the sheriff of any county to call for aid upon the commandant of any military force within his county, immediately notifying the governor of such action; and it shall be the duty of the commandant upon whom such call is made, to order out in aid of the civil authorities the military force, or any part thereof, under his command.” Section 8 provides that “all officers and soldiers while on duty or assembled therefor pursuant to the order of any sheriff of any county in cases of riot, tumult, breach of peace, or whenever called upon to aid the civil authorities shall receive the same compensation as provided for in section 7, and such compensation shall be audited, allowed and paid by the supervisors of the county where such service is rendered.” Section 7 provides: “The military forces of this state, when in the actual service of the state in time of insurrection, invasion, or immediate danger thereof shall, during their time of service, be paid by an appropriation especially made therefor, the following sums each, for every day actually on duty.” Following this is an enumeration of the per diem to be paid. It will be observed that it is only upon the military forces within his county that a sheriff may call for aid, and that it is only for services rendered “pursuant to the order of any sheriff” that compensation is to be paid by the county. These troops were ordered into service by the governor, and from other counties than Pottawattamie. The services thus rendered in that county were not rendered upon the call of the sheriff thereof. We are clearly of the opinion that the claim in question is not chargeable to Pottawattamie county.

3. We next inquire whether said claim is payable out of the appropriations made in said chapters 74, 65, and 31. The appropriation in section 51, c. 74, is as follows: “There is hereby appropriated the sum of twenty thousand dollars per annum, or so much thereof as may be necessary, out of the state treasury not otherwise appropriated, for the purposes named in this act.” It further provides that warrants against said appropriations shall be drawn “upon the certificate of the adjutant general, approved by the governor.” Section 5, c. 65, Acts 20th Gen. Assem., appropriated an additional $15,000 per annum “for the purpose of carrying out the provisions of chapter 74, Laws of the 18th General Assembly as herein amended.” Section 19 of said chapter 31 makes an additional appropriation of $10,000 per annum “for the purpose of carrying out the provision of chapter 74, Laws of the 18th General Assembly as amended by chapter 65, Laws of the 20th General Assembly and as herein further amended.” These troops were called into actual service by the governor, under section 4 of said chapter 74, giving him authority, “in case of insurrection, invasion or breaches of the peace, or imminent danger thereof, to order into the service of the state such of its military force as he may deem proper and under the command of such officers as he shall designate.” It will be observed that these appropriations are made for the purposes named in chapter 74, and for the purpose of carrying out the provisions of chapter 74 as amended. One of the purposes named in chapter 74 is the suppression or prevention of breaches of the peace, and it was for the latter purpose that these troops were ordered into service. Section 7 does not provide for paying for subsistence of troops in actual service, but only the per diem to be paid for the service “in time of insurrection, invasion or immediate danger thereof.” This section does not embrace services rendered in suppressing or preventing breaches of the peace. Ordinarily, if not uniformly, breaches of the peace are prevented or suppressed with much less force, and consequently with much less expense, than attends the suppression or prevention of an insurrection or the repulsion of an invasion. We are inclined to think that it was because of these differences that breaches of the peace were omitted from the provisions of section 7, and that “an appropriation especially made” is required to cover the expenses incurred in cases of insurrection or invasion. It seems to us quite clear that this indebtedness was incurred in carrying out one of the purposes named in said chapter 74 as amended, namely, the prevention of breaches of the peace. The question still remains whether it was the legislative intention that claims like this should be paid out of the appropriations mentioned. Chapter 74, as amended, is quite specific in providing...