State ex rel. Henderson v. Burdick

• Decision Date: 01 June 1893
• Citation: 33 P. 125,4 Wyo. 272
• Parties: STATE EX REL. HENDERSON v. BURDICK, STATE AUDITOR
• Court: Wyoming Supreme Court

33 P. 125

4 Wyo. 272

STATE EX REL. HENDERSON v. BURDICK, STATE AUDITOR

Supreme Court of Wyoming

June 1, 1893

This was an action in mandamus brought on the relation of Harry B Henderson against Charles W. Burdick as State auditor, to require the issuance of a warrant in payment of the salary of relator as State examiner for the month of April, 1893. It was an amicable proceeding to determine whether or not there had been an appropriation by law of the amount of said salary sufficient to authorize the auditor to issue a warrant therefor when earned. The auditor had endorsed upon the claim as presented the following: "The salary of the State examiner is a legal and just claim against the State of Wyoming, but as no appropriation was made by the second State legislature for the salary of State examiner I decline to draw a warrant on the State treasury payable to said officer for the amount of his salary for April, 1893, as represented by this voucher." The case was heard upon demurrer to the petition, the allegations of which are fully set forth in the opinion.

Demurrer overruled.

Lacey &amp Van Devanter, for relator.

Citing the following: (Constitution, Art. III, Secs. 32 & 35; Art XIV, Sec. 7; Art. XIV, Sec. 1; Art. IV, Sec. 14; Laws 1890-91, Sec. 27, p. 362; Donnellan v. Nichols, 1 Wyo. 61; opinion of Attorney General Ind. 1888, p. 155; Report of Attorney General Colo. 1889-90, p. 60; id. 1891-92, p. 23; State ex rel. Rotwitt v. Hickman, treasurer, 9 Mont. 370; State ex rel. Wade v. Kenney, Auditor, 10 Mont. 485; State ex rel. Buck v. Hickman, Treasurer, 10 Mont. 497; State ex rel. Maddox v. Kenney, Auditor, 10 Mont. 533.

Charles N. Potter, Attorney General, for respondent.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This proceeding invokes the original jurisdiction of this court, and is submitted on the petition of the relator for the writ and the demurrer thereto. The following facts appear from the petition: The relator is the duly and regularly appointed and qualified State Examiner of the State of Wyoming, and was such during the entire month of April, 1893. On the 18th day of May, 1893, he presented to the auditor of the State his bill and voucher duly verified, against the State for the sum of $ 166.66, the amount of his salary as State Examiner for the month of April last past, and demanded a warrant upon the State Treasurer in payment of the same. The auditor disallowed said claim, endorsing thereon as cause for disallowance that there was no appropriation by the Second State Legislature with which to pay said salary for the said month of April, 1893. Under section 27 of the act providing for the office of State Examiner, defining his powers and duties, prescribing his bond and fixing his compensation, approved January 10, 1891 (Ch. 84, Sess. Laws 1890-91), it is provided that the State Examiner shall receive an annual salary of two thousand dollars, which sum shall be paid by the treasurer in the same manner as other salaries and expenses of other State officers are paid. The salaries of other State officers, except such as are specifically required by law to be paid quarterly, are allowed by the auditor and paid by the treasurer of the State monthly. It is alleged in the petition that in and by said section 27 of the act referred to, the sum of $ 2,000.00 per annum is appropriated by the Legislature and by law for the purpose of paying the salary of the State examiner, and so an amount of money sufficient to pay said salary, due to the relator for said month of April, 1893, is in the treasury and has been regularly appropriated by the Legislature of the State, and by law, as required by the constitution of the State.

The constitutional provision for this office is in the following words:

"The Legislature shall provide for a State examiner who shall be appointed by the Governor and confirmed by the Senate. His duty shall be to examine the accounts of (the) State treasurer, supreme court clerks, district court clerks, and all county treasurers, and treasurers of such other public institutions as the law may require and (he) shall perform such other duties as the Legislature may prescribe. He shall report at least once a year, and oftener if required, to such officers as are designated by the Legislature. His compensation shall be fixed by law." Const. Wyo. Art. IV, Sec. 14.

The act referred to creating the office (Ch. 84, Sess. Laws 1890-91) fixes the compensation in the following language:

"Sec. 27. The State examiner shall receive an annual salary of two thousand dollars, and a contingent fund of not to exceed fourteen hundred dollars for the incidental expenses of his office, which same shall be paid by the treasurer of the State, in the same manner as other salaries and expenses of State officers are paid."

The first State Legislature made an appropriation "for State examiner from January tenth, eighteen hundred and ninety-one, four thousand dollars," Sec. 2, Ch. 61, Sess. Laws 1890-91, the act being approved on the same day as the act fixing the compensation and duties of the State examiner. This appropriation was in the general appropriation bill for the expenses of the State government and covered the period from the passage of the act until and including March 31, 1893. No appropriation was made in the appropriation act or by any statute passed by the second Legislature for the salary or contingent expenses of the State examiner for the fiscal years and biennial term beginning March 31, 1893, and ending March 31, 1895, although appropriations were made to pay the salaries of all State officers except the veterinarian, the examiner and the board of live stock commissioners. The claim of the relator is based wholly upon the provisions of section 27 of the act creating the office of examiner, quoted supra. The following are the provisions of the constitution relating to the payment of moneys from the treasury of the State:

"Except for interest on (the) public debt, money shall be paid out of the treasury only on appropriations made by the Legislature, and in no case otherwise than upon warrant drawn by the proper officer in pursuance of law." Art. 3, Sec. 35.

"No money shall be paid out of the State treasury, except on appropriations by law, and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the State, or any county or political subdivision, shall be audited, allowed or paid until a full itemized statement in writing, verified by affidavit, shall be filed with the officer or officers whose duty it may be to audit the same." Art. 16, Sec. 7.

It will be seen that the first section quoted (Sec. 35, Art. 3) employs the words "appropriations made by the Legislature," while the latter (Sec. 7, Art. 16) uses the term "appropriation by law." These terms "Legislature" and "law" seem to be used as synonyms. They appear to be employed interchangeably, and are evidently so used in the section directing the creation of the office of State examiner (Sec. 14, Art. IV, supra) where the direction is that the "Legislature" shall provide for the office, specifying in the list of his duties that he shall perform such other duties as the "Legislature" may prescribe, and provides that he shall examine such other public institutions as the "law" may require. His compensation shall be fixed by "law." The executive of the State is entrusted with a veto power by the constitution, which may be over-ridden by a vote of two-thirds of the members elected to each house, and which may become an absolute veto if the bill be not approved, in case it is presented to him within the last three days of the session, and he retains it without returning it, when he has fifteen days after the adjournment to approve or disapprove it. It certainly cannot be successfully contended that the Legislature alone can enact any law, without the assent of the governor, or by passing it with a two-thirds vote of the membership of each house, except where his veto becomes absolute by the failure to pass and present the bill to him in sufficient time for him to return it with his objection to the house where it originated. In other words, any appropriation to be effective must be a "law." Possibly, the meaning of these constitutional provisions construed together is that an appropriation must be made by statute, and not by the force of any constitutional provision. It is not necessary, however, to consider this question, as the appropriation in this case, if any there be, is made by a statute and not by reason of any provision of the constitution. Does section 27 of chapter 84 of the Session Laws of 1890-91, which provides for the compensation of the State examiner make a valid appropriation for his salary? There is no provision in our constitution, as there is in the constitution of some states, requiring legislative appropriations annually or biennially to make funds in the treasury available for the payment of the ordinary expenses of the government. The limitation in the Federal Constitution is that "no money shall be drawn from the treasury but in consequence of appropriations made by law." The object of this limitation and that contained in the constitutions of the several states of similar import is to secure to the legislative department the exclusive power of deciding how, when and for what purposes the public funds shall be applied in carrying on the government. 2 Op. Attorney General 670. It had its origin in the British Parliament, when the people of Great Britain, to provide against abuse by the king and his officers of the discretionary power with which they were vested, demanded that the public funds should not be drawn from the...