Rhea v. Newman

• Decision Date: 07 May 1913
• Citation: 156 S.W. 154,153 Ky. 604
• Parties: RHEA, State Treasurer, v. NEWMAN.
• Court: Kentucky Court of Appeals

156 S.W. 154

153 Ky. 604

RHEA, State Treasurer, v. NEWMAN.

Court of Appeals of Kentucky.

May 7, 1913

Appeal from Circuit Court, Franklin County.

Mandamus by J. W. Newman, Commissioner of Agriculture, Labor, and Statistics, and chairman of the State Board of Agriculture against Thomas S. Rhea, State Treasurer, to compel defendant to indorse warrants issued by the Auditor of Public Accounts. From a judgment granting relief, defendant appeals. Affirmed.

James Garnett, Atty. Gen., for appellant.

A. J Carroll and W. W. Crawford, both of Louisville, for appellee.

MILLER J.

This action was brought by the Kentucky State Fair, through J. W Newman, its chairman, to compel Thomas S. Rhea, the State Treasurer, by a writ of mandamus, to indorse certain warrants issued by the Auditor of Public Accounts, so that they would thereby become interest-bearing warrants. Briefly stated, the facts are as follows: By an act approved March 19, 1912, the General Assembly appropriated the sum of $30,000 "out of any money in the treasury and not otherwise appropriated for paying off the present indebtedness of the Kentucky State Fair." Acts 1912, p. 541. On November 12, 1912, the Auditor of Public Accounts issued to the plaintiff, John W. Newman, Commissioner of Agriculture, Labor, and Statistics of the state of Kentucky, who by virtue of his office is chairman of the State Board of Agriculture, which conducts the Kentucky State Fair, five warrants upon the State Treasurer, for $5,000 each, in payment of $25,000 of said appropriation. A warrant for the other $5,000 had been previously issued. Chairman Newman presented said five warrants to the appellant, Thomas S. Rhea, State Treasurer, for payment; but Rhea refused to pay any of said warrants because the funds available for their payment had been exhausted. Thereupon the appellee demanded of appellant that he indorse said warrants as interest-bearing from that date, as provided by section 3 of the Act of 1910, which reads as follows: "Whenever any warrant hereafter issued by the Auditor of Public Accounts shall be presented to the Treasurer for redemption, and the funds appropriated for the purpose for which said warrant was issued are exhausted, the Treasurer shall indorse thereon the date of its presentation with the words, 'No funds with which to pay this warrant, and it bears five per cent. interest from this date until called in,' with his official signature thereto, and such warrant shall thereafter bear interest at the rate of five per cent. per annum, payable semiannually." Acts 1910, p. 218. The Treasurer having refused to make said indorsement upon said warrants, Newman, as Commissioner of Agriculture, Labor, and Statistics, instituted this action on January 14, 1913, against Rhea, the Treasurer, praying for a writ of mandamus commanding him to indorse said warrants, and each of them, as required by law, so that they shall bear interest until paid. Rhea answered giving the specific data relating to the revenue and expenses of the state government for the years 1912 and 1913, up to the time he answered, and the probable income and expenses for the remainder of the year 1913, estimated upon the basis of the income and expenses of preceding years, showing that at the time of the appropriation to the State Fair there were outstanding warrants against the commonwealth amounting to more than $1,000,000; that at the date the Auditor issued said warrants there were outstanding warrants against the state amounting to more than $2,000,000; that at the time of the approval of said act making said appropriation, and continuously thereafter, there had been, and was at the time the answer was filed, a deficit in the state treasury in excess of $500,000; and that said warrants were void, because at the time they were issued the indebtedness of the commonwealth, created by the Legislature, exceeded the sum of $500,000, the limit provided by section 49 of the Constitution. A demurrer having been sustained to the answer, and the writ of mandamus ordered pursuant to that ruling, Rhea prosecutes this appeal.

Before taking up the principal question, however, we will dispose of the preliminary question presented in appellee's contention that, since the duties of the State Treasurer are purely ministerial, he cannot raise the question of the validity of the warrants; and that he cannot call in question the act of the Auditor in issuing them. This question was considered at great length in the late case of State ex rel. v. Candland, 36 Utah 417, 104 P. 290, 24 L.R.A. (N. S.) 1260, 140 Am.St.Rep. 834, where the court, after reviewing the authorities, summed up its conclusions as follows: "We think a careful perusal of the authorities will disclose that while some of the cases contain general expressions which would seem to indicate that an officer in a mandamus proceeding against himself, requiring him to do a ministerial act, may not justify his failure to act upon the sole ground that the law directing the act is unconstitutional, the direct question now before us was not really involved in those cases. Where the question whether an officer acting ministerially, who is directly responsible for his official acts, may attack a law in a mandamus proceeding, was actually before the courts, the great weight of authority is to the effect that such an officer may, in such a proceeding, justify his refusal to act upon the ground that the law requiring the act is unconstitutional. The following well-considered cases leave little, if any, room for doubt or controversy upon this question. Van Horn v. State, 46 Neb. 62, 64 N.W. 365; Norman v. Kentucky Board of Examiners, etc., 93 Ky. 537, 20 S.W. 901 , 18 L.R.A. 556; McDermont v. Dinnie, 6 N. D. 278, 69 N.W. 294; Denman v. Broderick, 111 Cal. 97, 43 P. 516; Brandenstein v. Hoke, 101 Cal. 131, 35 P. 562. When the law requires an officer to act, although the act be ministerial merely, if he is directly responsible for his official acts he may refuse to act, if in his judgment the law is in conflict with some constitutional provision, and, in case proceedings are instituted to coerce him, he may set up the supposed defect in the law as a defense. No other conclusion is permissible if the Constitution is the supreme law, and if legislative acts in conflict therewith are not merely voidable but are absolutely void. A legislative act which is in conflict with the Constitution is stillborn and of no force or effect--impotent alike to confer rights or to afford protection. This general doctrine is adopted by the courts generally and is the doctrine promulgated by the Supreme Court of the United States, as appears from the case of Norton v. Shelby County, 118 U.S. 442, 6 S.Ct. 1125, 30 L.Ed. 178, where Mr. Justice Field, in speaking for the court, says: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' If this be true, how can any officer, who is responsible for his official acts and who has taken the required oath of office that he 'will support, obey, and defend' the Constitution of the state, justify any act which in his judgment is contrary to or is forbidden by the Constitution, and which is in fact so, although the act be required of him by some legislative enactment? The fact that the act required at his hands is merely ministerial does not change the effect so far as the officer is concerned. If the legislative enactment under which he is required to act is in conflict with the Constitution, the Constitution and not the enactment prevails, and the officer must obey the Constitution or violate his oath of office."

It is true the language above quoted refers to an unconstitutional enactment of the Legislature; but if a constitutional act of the Legislature requires the Treasurer to perform an act which is ordinarily within the line of his duty, but is, in the particular instance, a violation of the Constitution, he is equally bound to refuse performance, although the law under which he refuses to act is constitutional.

The Treasurer does not contend, in the case at bar, that the Legislature did not have the power to direct state warrants to be indorsed as interest-bearing, as it did by the act of 1910, or that the law imposing that duty upon him was not properly enacted; he only claims that at the time the warrants were presented by the appellee, the act had ceased to operate upon him because the indebtedness of the state had exceeded the constitutional limit. As the Treasurer gives a heavy bond, and takes an oath to support the Constitution of the commonwealth, his duties in the present case were more than merely ministerial; and in our opinion he had the right to raise the question as to the legality of the act demanded of him.

The decision of the case upon its merits presents a more difficult question, and depends upon the construction to be given section 49 of the Constitution of Kentucky, which reads as follows: "The General Assembly may contract debts to meet casual deficits or failures in the revenue; but such debts, direct or contingent, singly or in the aggregate shall not at any time exceed five hundred thousand dollars, and the moneys arising from loans creating such debts shall be applied only to the purpose or purposes for which they were obtained, or to repay such debts: Provided, the General Assembly may contract debts to repel invasion, suppress insurrection, or, if hostilities are threatened, provide for the public defense." And, although section 50 of the Constitution has no direct bearing upon the question before us, it may profitably be read in connection with section 49. It reads as...