State ex rel. Bickford v. Cook

• Decision Date: 24 February 1896
• Citation: State ex rel. Bickford v. Cook, 17 Mont. 529, 43 P. 928 (Mont. 1896)
• Parties: STATE ex rel. BICKFORD v. COOK, State Auditor.
• Court: Montana Supreme Court

43 P. 928

17 Mont. 529

STATE ex rel. BICKFORD v. COOK, State Auditor.

Supreme Court of Montana

February 24, 1896

Application on the relation of Walter M. Bickford for a writ of mandamus to compel A. B. Cook, state auditor, to draw warrants on the state capitol fund for the value of his services and expenses as a state capitol commissioner.

Walter M. Bickford prayed for an alternative writ of mandate commanding the defendant, state auditor, to issue a warrant in payment of the account filed by said Bickford for services rendered by him as a member of the state capitol commission. The relator alleges: "That under and by virtue of an act of the legislative assembly of the state of Montana approved March 7, 1895, designated as 'chapter 4, art. 2, of part 3, tit. 5, of the Political Code,' there was created a board to be known as and called the 'State Capitol Commission,' to consist of five members, to wit, the governor and four qualified electors of the state, said members to be appointed by the governor by and with the consent of the senate. That in pursuance of said act the governor of said state did, on the said 7th day of March 1895, appoint as members of said board Charles K. Cole, of Lewis and Clarke county, Charles F. Lloyd, of Silver Bow county, William K. Floweree, of Teton county, and this affiant, of Missoula county, and said appointments so made as aforesaid were made by and with the advice and consent of the senate, and were approved by said senate, and in all respects in accordance with said law. That thereafter the said persons so appointed filed their oaths of office and bonds as required by law, and entered upon the discharge of the duties of their office as members of said board. That on the 16th day of March, 1895, A. B. Keith was duly elected by said board as its acting secretary, and qualified by filing his bond as required by law. That between the 15th day of March 1895, and the 19th day of December, 1895, this affiant performed services as a member of said board, expended moneys for traveling expenses and mileage while engaged in the duties of said board, which said services, mileage, and traveling expenses amounted to the sum of $87.90; and on the 6th day of November, 1895, this affiant presented an itemized account in duplicate of said per diem, moneys expended for traveling expenses, etc., to the said board, and the same was duly audited, allowed, and approved for the sum of $87.60 and the said audited bill was certified to the state auditor, with vouchers therefore, and this affiant thereupon presented the same to said state auditor, and requested that said auditor issue a warrant drawn upon the state capitol building fund in favor of this affiant for the sum named therein, but that said auditor failed and refused, and still fails and refuses, to issue said warrant, as he is required to do by the provisions of the said act approved March 7, 1895." The auditor, in his return, alleges: That he refused because the warrant for the claim presented was not a claim for the salary and compensation of an officer which was fixed by law. That the said claim had not been presented, examined, and approved by the state board of examiners, as required by section 20, art. 7, of the constitution. "That at the time said claim was allowed, Charles F. Lloyd, one of the members of said board, was, and now is, adjutant general of the state of Montana, and receives an annual salary of one thousand dollars, and is required to give a bond to said state in the sum of two thousand dollars for the faithful performance of his duties of such office which are inconsistent with the duties which he is required to perform as a member of the state capitol commission. That William K. Floweree, one of the members of that board, was, at the time this bill was allowed, a member of said board, and now is a state senator, duly elected and qualified, and that the said William K. Floweree represents the county of Teton in the state senate of the state of Montana, and that the duties imposed by the constitution and the law upon the said William K. Floweree, senator, as aforesaid, are wholly inconsistent with the duties required of him as a member of the state capitol commission." That the said capitol commission has never been legally organized. "That all moneys derived from the sale of all lands granted to the state for the construction of public buildings are state funds, and are moneys belonging to the state, and that such moneys cannot be drawn out of the state treasury unless claims therefor have been presented to the state board of examiners, and by such board approved. That the appropriation by the legislature of the sum of two hundred and twenty-five thousand dollars for the fiscal year ending December 3, 1895, is largely in excess of the money on hand which has been received from the sale and rental of lands granted to the state for the purpose of constructing public buildings at the state capitol." That the moneys received for the rental and sale of the lands granted to the state for the construction of public buildings, and now in the hands of the state treasurer, does not exceed the sum of $6,089.10. "That warrants issued in accordance with article 2, c. 4, tit. 5, pt. 3, of the Political Code, are to be drawn and registered the same as other warrants are drawn and registered by the proper officer of the state. Said warrants, when drawn and registered, are state warrants, and create an indebtedness against the state, and the state is liable for the payment of the same. That said lands, and all thereof, so granted to the state of Montana for public buildings at the capital of the state, are held in trust for the people of the state, of Montana, and that no part or portion of said lands can be disposed of at a price less than ten dollars per acre. That the state has selected, and there have been approved by the secretary of the interior, lands to the amount of 36,164.90 acres for public buildings at the capital of said state, and that, if all of said lands were sold, they would not bring the state the sum of five hundred thousand dollars, which is the appropriation made for the years 1895 and 1896. That said lands so selected by the state and approved by the secretary of the interior are not worth in value the sum of three hundred and sixty thousand dollars, and when sold would not bring or realize in money to the state of Montana the sum of three hundred thousand dollars. Respondent further says, upon information and belief, that the lands so selected and approved cannot be sold at the rate of ten dollars per acre, and that the appropriation for the years 1895 and 1896, in the sum of five hundred thousand dollars for the erection of a state capital building at the state capital is wholly in excess of the value of said lands, and that the drawing of warrants in such sum would be illegal, and contrary to law. Respondent further says, upon information and belief, that such warrants are claims against the state, for which the state of Montana would be responsible for the payment and for the interest thereon, and that he has no authority under the law to draw warrants in favor of such capitol commission, except the amount now in the hands of the state treasurer." The relator moved to strike out portions of the respondent's answer, and at the same time filed a general demurrer.

B. P. Carpenter and Toole & Wallace, for relator.

Henri J. Haskell, for respondent.

HUNT J. (after stating the facts).

In order to erect and complete a state capitol, the legislature by the...