State ex rel. Holcombe v. Burdick

• Decision Date: 01 June 1893
• Parties: STATE EX REL. HOLCOMBE v. BURDICK, STATE AUDITOR
• Court: Wyoming Supreme Court

33 P. 131

4 Wyo. 290

STATE EX REL. HOLCOMBE v. BURDICK, STATE AUDITOR

Supreme Court of Wyoming

June 1, 1893

ORIGINAL ACTION in mandamus on the relation of A. A Holcombe, State veterinarian, to compel the auditor, Charles W. Burdick, to issue a warrant upon the State treasury for the salary of relator for the month of April, 1893, the auditor having declined to issue such warrant, on the ground that, admitting the claim for salary to be a just one, the second legislature had failed to make any appropriation therefor. The case was heard upon demurrer to petition. It was contended on behalf of relator that the act of 1882 creating the office, and the amendments thereto, contained a sufficient appropriation; Sec. 1 of the act as amended in 1890-91; Laws of 1890-91, p. 328, fixing the salary at $ 1,800 per annum, and providing for its payment out of the fund created by the act, which was known as the "Stock Indemnity Fund." The provision for the tax from which the fund was derived was repealed in 1890, but there had been no disposition of the money remaining therein.

Lacey &amp Van Devanter, for relator.

Citing the constitutional and statutory provisions and authorities cited by same counsel in the case of State ex rel. Henderson v. Burdick, reported supra, and in addition thereto, Rev Stat. 1887, Secs. 4199, 4211, 4213; Laws 1888, pp. 131 and 136; Laws 1890, p. 26; Laws 1891, p. 328.

Charles N. Potter, Attorney General, for respondent.

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

OPINION

GROESBECK, CHIEF JUSTICE.

This case presents substantially the same questions as those involved in the case of Henderson v. Burdick, just decided. There is, however, one difference in the situation of the officers which may be noticed. The statute creating the office of veterinarian provides for his compensation and traveling expenses, for the condemnation of diseased live stock, and a fund for the payment of the salary and expenses of the veterinarian and for live stock slaughtered according to law. (Sections 4199-4213, Rev. Stat. Wyo. taken from Ch 41, Sess. Laws 1882.) The section creating the office of veterinarian was amended by Ch. 77 of Sess. Laws 1890-1, and his salary was fixed at $ 1,800.00 per annum, to be paid out of the fund provided in the chapter. This fund was created by the act and arose from the special annual tax of not exceeding one mill on the dollar, to be levied by the territorial board of equalization annually upon the assessed valuation of all cattle, sheep, horses and mules in the territory. The section creating the fund was amended by Ch. 58, Sess. Laws 1888, by striking out the word "sheep" wherever the same occurred in the section, thus removing the tax on sheep for the purposes of the act. The section was finally repealed by Ch. 12 of the Sess. Laws of 1890, but no disposition was ever made of the fund thereby created, and it still remains as a distinct and separate fund in the treasury, under its designation by statute, the Stock Indemnity...