State ex rel. Davis v. Cornell
| Decision Date | 08 November 1900 |
| Citation | 60 Neb. 694,84 N.W. 87 |
| Parties | STATE EX REL. DAVIS v. CORNELL, AUDITOR. |
| Court | Nebraska Supreme Court |
1. The legislative authority to draw money from the state treasury for the satisfaction of a just claim against the state does not become extinguished by the wrongful refusal of the auditing officers to exercise their functions within the proper time.
2. When the law imposes a duty upon a public officer to do an official act at a particular time, the obligation is ordinarily a continuing one; and the courts will, when it is practicable, coerce performance after the appointed time has gone by.
Application by the state, on the relation of Mrs. A. M. Davis, trustee, for a writ of mandamus against John F. Cornell, state auditor. Writ allowed.J. H. Broady and A. H. Babcock, for plaintiff.
The Attorney General, for defendant.
The relatrix, Mrs. A. M. Davis, as trustee of the Society of the Home for the Friendless, exhibited to the auditor of public accounts a claim for $6,017.31 against the state, and demanded that the same be examined and adjusted as required by law. The auditor, after some delay, considered and allowed the claim; but the secretary of state, to whom it was presented on August 3, 1899, refused to approve it. Afterwards, however, the district court of Lancaster county, by a peremptory mandamus, commanded him to approve it, and he did so. The present action was then commenced to require respondent to issue a warrant upon the treasury in favor of the relatrix for the amount allowed. The answer admits the recitals of the alternative writ, but calls attention to the fact that, while the claim was presented in due time to the auditor and secretary of state, it was not approved by the latter officer until after the appropriations made by the legislature of 1897 had ended. The question thus raised--and it is the only one argued by counsel--is whether the appropriation of 1897 for the Home for the Friendless ceased, under the circumstances here disclosed, to be available at the end of the first fiscal quarter after the adjournment of the legislature of 1899. No adjudged case has been brought to our notice that seems to be at all in point. Authorities cited by the attorney general (State v. Babcock, 22 Neb. 33, 33 N. W. 709;People v. Needles, 96 Ill. 575;People v. Lippincott, 64 Ill. 256;People v. Swigert, 107 Ill. 494) sustain the view that no lawful claim against an appropriation can come into existence after the end of the period for which the appropriation was made, but beyond this they do not go....
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