State ex rel. Bd. of Regents of Normal Sch. v. Zimmerman

• Decision Date: 11 March 1924
• Citation: 197 N.W. 823,183 Wis. 132
• Parties: STATE EX REL. BOARD OF REGENTS OF NORMAL SCHOOLS v. ZIMMERMAN, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

183 Wis. 132

197 N.W. 823

STATE EX REL. BOARD OF REGENTS OF NORMAL SCHOOLS

v.ZIMMERMAN, SECRETARY OF STATE.

Supreme Court of Wisconsin.

Feb. 28, 1924.

Dissenting Opinion March 11, 1924.

Original suit in mandamus by the State, on the relation of the Board of Regents of Normal Schools, against Fred Zimmerman, as Secretary of State, in which alternative writ was granted. Demurrer to return to the alternative writ sustained, and peremptory writ granted.

Eschweiler, J., dissenting.Herman L. Ekern, Atty. Gen., and M. B. Olbrich, Sp. Counsel, of Madison, for petitioner.

Walter D. Corrigan, Sp. Counsel, of Milwaukee (M. K. Whyte, of Milwaukee, of counsel), for defendant.

JONES, J.

This is an action in mandamus under the original jurisdiction of the court by the state of Wisconsin, upon the relation of the board of regents of normal schools, to compel Fred Zimmerman, secretary of state, to audit a claim of $168 for certain text-books.

The plaintiff relies on the following statute:

“There is annually appropriated such sums as may be necessary, payable from any moneys in the general fund or other available funds not otherwise appropriated, as an emergency appropriation to meet operating expenses of any state institution, department, board, commission or other body for which sufficient money has not been appropriated to properly carry on the ordinary regular work. No moneys shall be paid out under this appropriation except upon the certification of the Governor, secretary of state and state treasurer that such moneys are needed to carry on the ordinary regular work of the institution, department, board, commission or other body for which the moneys are to be used and that no other appropriation is available for that purpose. Any moneys so required beyond the regular appropriation shall appear on the books of the secretary of state as an additional cost of operating the institution, department, board, commission or other body as the case may be.” Section 20.74, Stats.

The petition set forth the authority of the board of regents of the state normal schools to purchase needful apparatus, books, and other articles to assist in instruction, and, subject to the approval of the Governor and the state chief engineer, to remodel and repair buildings now existing and useful in the work of carrying on instruction; that the Governor, state treasurer, and secretary of state, pursuant to section 20.74, Stats., are the state emergency board, and under that section, when moneys are needed to carry on the ordinary regular work of the normal schools, and no other appropriation is available for that purpose, are authorized, and it is their duty to certify that fact; that the secretary of state is auditor of the state of Wisconsin; that on the 19th day of December, 1923, sufficient money had not been appropriated to carry on such ordinary and regular work except by said section 20.74, and that at that time moneys were needed to carry on such work for text-books, apparatus, remodeling toilet rooms, support and reinforcement of one of the libraries, in all amounting to $31,800; that no appropriation was available for such purposes; that the said sums were presently needed to carry on the ordinary regular work; that on the 9th and 19th days of November, 1923, the facts were duly presented to the emergency board by the president and a committee of the board of regents of normal schools; that on the 19th day of December, 1923, the Governor and state treasurer made their certification, but that the secretary of state refused and refuses to sign the same; that upon its execution by the Governor and state treasurer the said amounts became available for the purposes specified; that, relying thereon, the board of regents directed the expenditure of said sums in connection with the operation of the nine normal schools of the state; that afterward the board of regents caused to be purchased certain necessary text-books needed for carrying on the ordinary regular work of the Whitewater normal school, and pursuant to law a sworn voucher for the purchase price in the sum of $168, duly certified as required by law, was presented to the secretary of state for audit; that, notwithstanding his plain duty, he declined and refused to audit and allow the same on the grounds that no appropriation for its payment was available under section 20.74, Stats., and unless ordered by the court he will continue to so refuse.

It was alleged on information and belief that the secretary of state threatens to refuse to allow all other similar claims; that the effect of such refusal will be to greatly hamper, cripple, and prevent the discharge of the ordinary regular work of said schools, and that it will become necessary for several of them to close their doors and discontinue their courses of instruction.

The petition prayed that he be directed to audit said claim and execute said certification, or show cause to the contrary. The certificate, signed by the Governor and state treasurer, was attached as an exhibit.

The alternative writ was issued as prayed, and the defendant made his return. The substance is stated in the brief of his counsel as follows:

“The defendant avers as his reasons for refusing and still refusing to audit and to sign and certify, and as reasons why he should not be compelled to audit or sign and certify, that the act in question is unconstitutional; that no emergency existed or exists; that the items referred to in the writ are not operating expenses; that the 1923 Legislature refused to make an appropriation for any of the purposes enumerated; that the three state officers referred to have no power, authority, or right to make an appropriation where the Legislature has refused to make one; that he has exercised a discretion not to certify; that he is of the opinion that the moneys are not needed for operating expenses; that the money, if needed, should be appropriated by the Legislature; and bcause of the appropriations for operation made by section 20.38. The return denies that it will become necessary for the schools to close or discontinue their courses.”

Although the item which the secretary of state refused to audit amounted to only $168, the issue involved is much broader than this amount or than the $31,800 involved in the certification.

[1][2][3] It is argued by counsel for defendant that the statute in question is unconstitutional because it prescribes no definite sum, fixes no maximum, and provides no measure by which the amount can be ascertained. It is said that the statute endeavors to make available the entire treasury of the state not otherwise specifically appropriated, and, if construed as plaintiff contends, it is almost unlimited as to the purposes for which the treasury can be used.

It is claimed that to constitute an appropriation a definite sum must be set aside for a definite purpose. As sustaining their objection counsel cite the following cases: State ex rel. Davis v. Eggers, 29 Nev. 469, 91 Pac. 819, 16 L. R. A. (N. S.) 630;Ingram v. Colgan, 106 Cal. 118, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187, 46 Am. St. Rep. 221;State ex rel. McDonald v. Holmes, 19 N. D. 286, 123 N. W. 884;Hughes v. Reeves, 45 S. D. 538, 189 N. W. 307;Ristine v. State ex rel. Board of Commissioners, 20 Ind. 328;Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120;Menefee v. Askew, 25 Okl. 623, 107 Pac. 159, 27 L. R. A. (N. S.) 537;Jobe v. Caldwell, 93 Ark. 503, 125 S. W. 423;Dickinson v. Clibourn, 125 Ark. 101, 187 S. W. 909.

Some of these decisions undoubtedly give support to the view that, as all appropriations must be within the legislative will, it is essential to have the amount or the maximum sum from which the expenditures are to be paid stated, and that, in the absence of an ascertainable limit to the amount of money which may be devoted to the object contemplated, no appropriation is made.

In the states of North Dakota, Arkansas, Oklahoma, and South Dakota there are constitutional provisions that appropriations must be specific, or there are other provisions imposing conditions not found in our Constitution. In the Indiana case above cited there was a vigorous decision sustaining the view of defendant's counsel; but it seems difficult to reconcile with this decision some of the later cases. Henderson v. Board, etc., 129 Ind. 101, 28 N. E. 127, 13 L. R. A. 169;Hart v. State, 159 Ind. 182, 64 N. E. 661, 58 L. R. A. 949, 95 Am. St. Rep. 280. The same may be said of the decisions in California.

Counsel for plaintiff rely on the following cases as supporting the view that an appropriation is not invalid because no maximum is stated: Prime v. McCarthy, 92 Iowa, 569, 61 N. W. 220;State v. Allen, 83 Fla. 214, 91 South. 104, 26 A. L. R. 735;Holmes v. Olcott, 96 Or. 33, 189 Pac. 202;State v. Clausen, 94 Wash. 166, 162 Pac. 1;State v. Henderson, 199 Ala. 244, 74 South. 344, L. R. A. 1917F, 770. It is the effect of these decisions that appropriations may be legally made for purposes authorized by law, although indefinite in amount, which appropriations provide that expenditures may be made as the occasion may require, under the direction of designated officers of the state under specified conditions.

The statute now under consideration is no innovation in the legislative history of the state. From its earliest history, appropriations of the same character have been made without attack in the courts, although three Governors have questioned the policy of the statute now under consideration. Nearly 70 years ago statutes were enacted authorizing state officers to employ such clerks as they considered necessary, and to fix their salaries. At a very early date there were unlimited appropriations for employment and supplies necessary to carry on the necessary work of departments, and later there were such appropriations for the payment of all salaries and other disbursements authorized by law for which no other appropriation...