State ex rel. Jamison v. Forsyth

• Decision Date: 16 June 1913
• Docket Number: 751
• Citation: 21 Wyo. 359,133 P. 521
• Parties: STATE EX REL. JAMISON v. FORSYTH, STATE AUDITOR
• Court: Wyoming Supreme Court

133 P. 521

21 Wyo. 359

STATE EX REL. JAMISON v. FORSYTH, STATE AUDITOR

No. 751

Supreme Court of Wyoming

June 16, 1913

ORIGINAL proceeding in mandamus.

The action was brought in the name of the state on the relation of Claude E. Jamison against Robert B. Forsyth, State Auditor, to require the payment of a claim of the relator out of an alleged existing appropriation for the office of state geologist. The case was heard upon a demurrer to the petition, it being conceded that all facts were fully and correctly set forth therein. The material facts are stated in the opinion.

D. A Preston, Attorney General, for respondent, in support of demurrer, cited Commonwealth v. Barnett, 199 Pa 161; Fulmore v. Lane, (Tex.) 140 S.W. 405; State v. Holder, (Miss.) 23 So. 643; Porter v. Hughes (Ariz.) 32 P. 165; Oklahoma v. Trapp, 113 P. 910, 28 Okl. 83.

C. L. Rigdon, for relator, contra.

POTTER, JUSTICE. SCOTT, C. J., concurs. BEARD, JUSTICE dissenting.

OPINION

POTTER, JUSTICE.

The original jurisdiction of this court is invoked in this case. It is an action seeking a peremptory writ of mandamus requiring the defendant as State Auditor to allow the bill and voucher of the relator for the sum of five dollars and issue to the relator a warrant for that amount upon the State Treasurer in payment of said bill. The case has been presented upon a demurrer to the petition and it is conceded that all the facts have been fully and correctly set forth in the petition. The question involved is the effect of the action of the Governor in approving a part of an item in the general appropriation bill passed at the recent session of the Legislature, and disapproving the remainder of that item.

The facts are, as set forth in the petition, that the relator, Claude E. Jamison, is the duly and regularly appointed, qualified and acting State Geologist of the State of Wyoming, and was such on the first day of April, 1913. That biennially there is appropriated by the legislature out of funds in the state treasury not otherwise appropriated a certain sum of money to pay the necessary contingent expenses of the State Geologist. That on the last day of the session, viz.: February 22, 1913, the Twelfth Legislature passed an act making appropriations of money embracing distinct items, entitled: "An Act making appropriations for salaries and contingent expenses of State and District officers and employees, and the various State Boards and Commissions, for the two years ending March 31st, 1915, including * * *." That among the distinct items of appropriation enumerated in Section 3 in said act to pay the necessary contingent expenses of State and District officers and employees, and the various State Boards and Commissions from March 31, 1913, to and including March 31, 1915, is one which reads as follows: "For the office of State Geologist, fifteen thousand dollars." That on the 8th day of March the Governor signed the said act and approved the said item of appropriation for the contingent expenses of the office of State Geologist to the extent of ten thousand dollars, and disapproved of five thousand dollars thereof in words and figures to-wit: "This act is approved save and except the items or parts of items specially noted herewith as being disapproved and as shown by accompanying communication. March 8, 1913, 6 p. m. See also notations on margins. Joseph M. Carey, Governor." That on the margin of the item "For the office of State Geologist, fifteen thousand dollars," is the following notation: "$ 10,000 of item approved, $ 5,000 of item disapproved. J. M. C., Governor." That the accompanying communication of the Governor appended to said act and explaining his action thereon is in words and figures as follows (omitting everything not pertaining to this particular item of appropriation):

"March 8, 1913.

Hon. Frank L. Houx,

Secretary of State,

Cheyenne, Wyo.

Sir: --I herewith file with you Enrolled Act No. 93 (O. H. B. No. 266), House of Representatives, entitled: 'An Act making appropriation for salaries and contingent expenses * * *' etc., etc., said act being what is known as the General Appropriation Act. I have approved this act except where specifically noted hereinafter. * * * Section 3, the paragraph reading 'For the office of State Geologist, fifteen thousand dollars.' I approve of so much of this item as appropriates $ 10,000, and withhold my approval from $ 5,000, leaving the appropriation $ 10,000. The State Geologist's office had an appropriation of $ 5,000 for the biennial period just passing. I believe double this appropriation ought to be more than sufficient to carry on the work of his office for the next two years. * * *

Very truly yours

JOSEPH M. CAREY,

Governor."

That on the 1st day of April, 1913, the relator presented to the defendant as State Auditor his bill and voucher in due form against the state for the sum of $ 5, an amount due and payable as an expenditure necessarily made by the relator in the performance of the duties imposed by law upon him as State Geologist. That the Auditor, questioning the legality of the said item of appropriation for the contingent expenses of the office of the State Geologist, has refused a warrant for the said bill and voucher, or any other amount. The petition, after setting forth the said facts, alleges: "That in and by said Section 3 of said Act the sum of ten thousand dollars, or so much thereof as may be necessary, is appropriated by law to pay the necessary contingent expenses of the State Geologist from March 31st, 1913, to and including March 31st, 1915, and so said petitioner represents that an amount of money sufficient to pay said expenditure due to said relator as set forth in said bill and voucher is in the treasury of the state, and has been duly and regularly appropriated by law."

As above suggested, the question presented by the demurrer is whether, as a result of the Governor's approval of part and disapproval of part of the item appropriated for the contingent expenses of the State Geologist's office, there is an appropriation of any amount for that purpose.

Counsel for relator does not contend that the Governor is without authority to disapprove a part only of a distinct item in a general appropriation bill and approve the remainder of such item, but has assumed that the Governor possesses such authority, insisting, however, that whether the Governor is vested with that authority or not, at least the sum of $ 10,000 remains appropriated for the payment of the contingent expenses of the Geologist's office. The position of the Auditor, as explained by the Attorney General, is that the authority of the Governor to disapprove of a part of an item in an appropriation bill containing distinct items has been doubted, leaving the result of such action on has part also in doubt, that is to say, whether it has resulted in destroying the entire appropriation for said contingent expenses of the Geologist's office or in an appropriation by law of the amount as reduced by the Governor or as passed by the legislature.

The provisions of the Constitution applicable to the question thus submitted are as follows:

Art. III, Sec. 24. "No bill, except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed."

Art. III, Sec. 34. "The general appropriation bills shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject."

Art. III, Sec. 35. "Except for interest on 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. IV, Sec. 8. "Every bill which has passed the legislature shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon the journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if it be approved by two-thirds of the members elected, it shall become a law; but in all such cases the vote of both houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each house respectively. If any bill is not returned by the governor within three days (Sundays excepted) after its presentation to him, the same shall be a law, unless the legislature by its adjournment, prevent its return, in which case it shall be a law, unless he shall file the same with his objections in the office of the secretary of state within fifteen days after such adjurnment."

Art IV, Sec. 9. "The governor shall have power to disapprove of any item or items or part or parts of any bill making appropriations of money or property embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items and part or parts disapproved shall be void unless enacted in the following manner: If the legislature be in session he shall transmit to the house in which the bill originated a copy of...