Shattuck v. Kincaid

• Decision Date: 09 August 1897
• Citation: 31 Or. 379,49 P. 758
• Parties: SHATTUCK v. KINCAID, Secretary of State. [1]
• Court: Oregon Supreme Court

49 P. 758

31 Or. 379

SHATTUCK v. KINCAID, Secretary of State. ^[1]

Supreme Court of Oregon

August 9, 1897

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Mandamus by E.D. Shattuck to compel Harrison R. Kincaid, secretary of state, to audit a claim, and draw his warrant for it. From a judgment in favor of defendant, plaintiff appeals. Reversed.

R.E Moody, for appellant.

N.B Knight, for respondent.

WOLVERTON, J.

This is a proceeding by mandamus to require the secretary of state to audit a claim, and draw his warrant for the salary of a circuit judge for the quarter ending March 31, 1897. The secretary resists the proceeding upon the ground that the legislature having failed to make appropriations for the current expenses of the state, he is without authority either to audit or draw his warrant for such claim. The case comes here upon demurrer to the alternative writ which was sustained by the lower court.

By section 2297, Hill's Ann.Laws Or., it is provided that "each of the judges of the circuit courts in this state (shall) receive an annual salary of three thousand dollars payable quarterly, and no other allowance for their services either directly or indirectly," and by section 2230 that "the salaries of the governor, secretary of state, and other officers of the state, shall be paid quarterly, out of the treasury of this state, upon the warrant of the secretary of state, commencing from and after they enter upon the duties of their respective offices." These sections clearly establish the plaintiff's right to the quarter's salary claimed, and upon this point there is no contention.

Section 4, art. 9, of the state constitution provides that "no money shall be drawn from the treasury but in pursuance of appropriations made by law," and section 2 art. 6, constitutes the secretary of state the auditor of public accounts. Section 2230, supra, was section 4 of an act approved June 2, 1859, and by the same act it was provided, among other things, as follows:

"Sec. 11. The secretary of state shall superintend the fiscal concerns of the state, and manage the same in the manner prescribed by law;

"To keep fair, clear, distinct and separate accounts of all the funds and revenues of the state, and also of all expenditures, disbursements and investments thereof, showing the particulars of every expenditure, disbursement and investment. *** To examine and determine the claims of all persons against the state in cases where provisions for the payment thereof shall have been made by law, and to endorse upon the same the amount due and allowed thereon, and from what fund the same is to be paid, and draw a warrant on the treasury for the same; and he shall report to the legislature at the commencement of each regular session a complete list of all accounts so audited, together with a general statement of the fiscal concerns of the state; provided, that no account shall be so audited, except the same be duly verified by the oath, affidavit or affirmation of the claimant or his agent and all accounts shall be kept on file in his office.

"To enter in a book to be kept for that purpose, an abstract of all warrants drawn on the treasury, showing the date, number, name of the claimant, the amount claimed, the amount allowed thereon and from which fund to be paid. ***

"Sec. 12. Whenever any account shall be presented to the secretary of state for settlement, he may require the person presenting the same, or any other person or persons to be sworn before him touching such account, and when so sworn, to answer orally or in writing as to any facts relating to the justness of the account. If any person interested shall be dissatisfied with the decision of the secretary, on any claim, account or credit, it shall be the duty of the secretary, at the request of such person, to refer the same, with his reasons for his decision, to the legislative assembly, and all persons having claims against this state shall exhibit the same with the evidence in support thereof to the secretary to be audited, settled, and allowed within two years, and not afterwards. And in all suits brought in behalf of the state, no debt or claim shall be allowed against the state as a set-off but such as have been exhibited to the secretary, and by him allowed or disallowed, except only in cases where it shall be proved to the satisfaction of the court that the defendant at the time of trial is in possession of vouchers which he could not produce to the secretary, on account of absence from the state, sickness or unavoidable accident."

Other sections of the same act provide that: "The state treasurer shall keep his office at the seat of government, shall receive and have charge of all moneys paid into the state treasury, and shall pay out the same as directed by law."

"It shall be the duty of the treasurer: *** Second--To pay on demand out of the state treasury all sums authorized by law to be so paid, if there are appropriate funds in the treasury to pay the same, and when any such sum is required to be paid out of a particular fund it shall be paid out of such fund only; and he shall pay no fund out of the treasury except in pursuance of law authorizing the payment thereof; but when any claim or account is authorized by law to be paid out of a general or contingent appropriation, the same shall be paid by the treasurer upon the warrant of the secretary of state. Third--To pay all warrants on the treasurer in the order in which they are presented, out of the appropriate fund; if there are no such funds in the treasury, then he shall endorse on such warrants 'Not paid for want of funds' together with the date, and all warrants so endorsed shall draw legal interest from and after such endorsement."

There is some confusion in numbering the sections of the original act, but the sections referred to are designated in Hill's Ann.Laws Or. as sections 2208, 2209, 2217, and 2219.

The plaintiff contends--First, that the law fixing the amount of his salary, and providing for the manner of its payment constitutes an appropriation of funds out of the treasury with which to meet the installments as they become due; and, second, that the secretary is required to audit his claim therefor, and draw a warrant for the amount found due, even though it be determined that there has been no appropriation made to meet it. The principle involved in the declaration of the fundamental law that "no money shall be drawn from the treasury but in pursuance of appropriations made by law," had its origin with the British parliament. It had, prior to the time of Charles II., occasionally and at long intervals exercised the right of appropriating supplies to particular purposes as the needs of the government demanded, but during the reign of that monarch it employed the authority generally, although perhaps not in every instance. It was not, however, until after the revolution of 1688 that the right and authority became firmly established. The principle, as then and since understood, is "that supplies granted by parliament are only to be expended for particular objects specified by itself." Tasw.-Langm.Hist.Eng. 620, 621. The abuse which the establishment of the principle was designed to correct was the exercise of official discretion in paying out and disbursing the public funds, and its purpose was to endow the legislative body with the sole authority, and impose upon it the specific duty, of deciding how and when such funds shall be applied to the discharge of the expenses, debts, or other engagements or liabilities of the government; and such is the limitation imposed by our present constitutional provision. Ristine v. State, 20 Ind. 328; State v. Burdick (Wyo.) 33 P. 125; 2 Op.Attys.Gen.U.S. 670. An "appropriation, as applicable to the general fund in the treasury, may, perhaps, be defined to be," says Perkins, J., in Ristine v. State, supra, "an authority from the legislature, given at the proper time, and in legal form, to the proper officers, to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the state." Webster defines "appropriation" as "the act of setting apart or assigning to a particular use or person in exclusion of all others; application to a special use or purpose, as of *** money to carry out some public object." No particular expression or set form of words is requisite or necessary to the accomplishment of the purpose, and the appropriation may be prospective as well as in præaesenti; that is "it may be made in one year of the revenues to accrue in another or future years, the law being so framed as to address itself to such future revenues." Humbert v. Dunn, 84 Cal. 57, 24 P. 111; Proll v. Dunn, 80 Cal. 220, 22 P. 143. And in every instance it becomes a question of legislative intent to be gathered under the settled rules of interpretation from the language employed, the context, the necessity for the enactment, and purpose to be accomplished considered in the light of contemporaneous circumstances. Field, J., in McCauley v. Brooks, 16 Cal. 28, says: "To an appropriation, within the meaning of the constitution, nothing more is requisite than a designation of the amount, and the fund out of which it shall be paid. It is not essential to its validity that funds to meet the same should be at the time in the treasury." It is maintained by some authorities that constitutional provisions fixing the salaries of state officers proprio vigore makes an appropriation out of the treasury for the payment of the same as they become due, and this upon the ground that such salaries have become fixed and unchangeable by any power vested in the legislature, and that to withhold the funds necessary...