State ex rel. Ball v. Hall
| Decision Date | 22 November 1935 |
| Docket Number | 29698. |
| Citation | 263 N.W. 400,130 Neb. 18 |
| Parties | STATE EX REL. BALL v. HALL, STATE TREASURER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The ministerial duties of a state officer, such as a treasurer not involving judgment or discretion, may be enforced by mandamus.
2. This is so because the question whether the writ of mandamus shall be granted or refused always depends upon the character of the act in question, and not upon the office held by the respondent.
3. The journals of the two houses of the Legislature, kept according to the Constitution, are the best evidence of what appears therein.
4. When the journals of both houses of the Legislature and the signature of the Governor each clearly show the passage of an act in a certain definite form, the undisputed mistake of an enrolling clerk will not be allowed to defeat the act.
Original action in mandamus by the State, on the relation of Marion E Ball, against George E. Hall, State Treasurer, to require respondent to countersign and pay a warrant duly drawn by the State Auditor and approved by the Secretary of the State.
Writ allowed.
Good Good & Kirkpatrick, of Lincoln, for relator.
G. E. Price, of Lincoln, for respondent.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.
This is an original action in mandamus, brought directly in this court by the relator to require the state treasurer to countersign and pay a warrant duly drawn by the state auditor and approved by the secretary of state.
This action involves the test of an act of the 1935 session of the Nebraska legislature in respect to the appropriation bill, being House Roll No. 381 entitled, " A Bill for an Act making appropriations for the State Government for the biennium ending June 30, 1937, and the conditions of payment thereof; and to declare an emergency; " and a portion thereof reads as follows:
| Section 9. | Attorney | General. |
| 2 Salaries and Wages | $48,000.00 |
| 3 Maintenance (Office) | 9,000.00 |
| 4 Litigation | 20,000.00 |
| 5 Costs and Judgments | 5,500.00 |
| 6 Protection of Irrigation Rights, North Platte District |
The last item in the above appropriation can be traced through the journals of both houses, and the alleged mistake is charged to be an error of the enrolling clerk in relation thereto. It appears from the journal of the House that, after some discussion, this last item was reduced to $45,000. The bill was engrossed, and in some way the enrolling clerk entered it at $10,000, instead of making a reduction of $10,000. The bill in this form went to the Senate, and the Senate decided that $45,000 might not be sufficient, and, while approving the original bill at $45,000, the Senate added $30,000, providing, however, that this last $30,000 could only be expended by the joint action of the governor and the attorney general. The House refused to concur, and appointed a conference committee, then a second, and finally a third conference committee acted on this matter.
In this third conference committee, the Senate receded from insisting on the additional appropriation of $30,000, and inserted in lieu thereof $10,000, the same to be in addition to the $45,000 already concurred in by the Senate. Then, by a mistake of the enrolling clerk, the original item of $45,000 was made $10,000.
When this bill reached the office of the governor, the mistake was detected, and the governor inserted these words when he approved the bill, " Correction Section 10, line 5 1/2, Protection of Irrigation Rights, North Platte District, $45,000; " and, as thus amended, the governor approved the bill (Laws 1935, c. 177).
The respondent, State Treasurer Hall, insists in his brief and argument that the fact that the governor attempted to correct it before signing the bill is not sufficient to correct the record of an enrolled bill; in other words, that the state treasurer, as an administrative officer, is not allowed to reject an enrolled bill and pay out funds on the authority of the journals alone.
There is abundant authority to support the proposition that the ministerial acts of a state officer, such as a treasurer, not involving judgment or discretion, may be enforced by mandamus.
This is so because the question whether the writ of mandamus shall be granted or refused always depends upon the character of the act in question, and not upon the office held by the respondent. 18 R.C.L. 192, § 116, and cases there cited; Riley v. Carter, 165 Okl. 262, 25 P.2d 666, 88 A.L.R. 1018; State v. Carter, 167 Okl. 32, 27 P.2d 617, 91 A.L.R. 1497; State v. Bryan, 102 Neb. 506, 167 N.W. 783. Or, as stated by Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, 170, 2 L.Ed. 60:" It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus, is to be determined."
The litigation now presented to this court can be stripped of all details and stated in the form of two questions: (1) Was this $45,000 appropriation made by the legislature? (2) Was the action of the legislature, as shown by the journal of the House and the journal of the Senate, the true evidence of what had been done, or was the enrolled bill the evidence of the action taken?
The first case arising in this state of a similar nature was State v. McLelland, 18 Neb. 236, 25 N.W. 77, 53 Am.Rep. 814.This was an application for mandamus to compel the county clerk of Nance county to give notice of an election for register of deeds on November 3, 1885. An act had been passed by...
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