State ex rel. Jeffrey v. Burdick

• Decision Date: 08 December 1891
• Parties: STATE ex rel. JEFFREY v. BURDICK, Auditor
• Court: Wyoming Supreme Court

28 P. 146

3 Wyo. 588

STATE ex rel. JEFFREY v. BURDICK, Auditor

Supreme Court of Wyoming

December 8, 1891

Original action by petition of John K. Jeffrey for a writ of mandamus to Charles W. Burdick, state auditor, to compel him to issue a warrant for the payment of a certain claim against the state. Writ denied.

Writ denied.

John C Baird, Judge Advocate General, for plaintiff.

T. F Burke and Charles N. Potter, Atty. Gen., for defendant.

CONAWAY J. GROESBECK, C. J., and MERRELL, J., concur.

OPINION

CONAWAY, J.

This is an original action in this court by petition for a writ of mandamus, commanding respondent to draw and issue his official warrant as state auditor of Wyoming for a sum certain in favor of petitioner, in payment of a claim against the state for stationery. The bill, a copy of which is attached to the petition as an exhibit, is made out and verified in the usual form, and is approved by the adjutant general and acting quartermaster general; and the items of the bill are stated by him to be necessary incidental expenses of the Wyoming National Guard organizations. It appears from the face of the bill, further, that the articles are for the adjutant general's office, general staff, regimental head-quarters, and regimental staff. Across the face of the bill also appears the following words, subscribed to officially by defendant and respondent as state auditor: "Office State Auditor, August 13th, 1891. The within claim is properly a contingent expense of the adjutant general's office. No warrant can be legally issued thereon for the reason that no appropriation was made by the legislature for the contingent expenses of the adjutant general's office. The claim is therefore disallowed." The petition further alleges that it was the lawful duty of the adjutant general and acting quartermaster general to provide such articles at the expense of the estate for the several organizations and departments of the Wyoming National Guard, and that on their requisitions the same were delivered to them, and are now in their custody and use. It is further alleged that the prices charged are reasonable, and that there was an existing appropriation to pay for armory and necessary incidental expenses of duly-organized militia organizations within said state from January 1, 1891, to March 31, 1893, having money to its credit in the state treasury, more than sufficient to pay this claim. The existence of a general staff organization, a regimental organization, and a regimental staff organization is also alleged, and that petitioner is without remedy, unless by the interposition of this court. To this petition there is a demurrer on two grounds: First, that the court is without the jurisdiction to grant the relief therein prayed for; second, that the petition does not state facts sufficient to constitute a cause of action.

It is argued that neither of the three great departments of the state government should interfere with the affairs of either of the others in the discharge of their functions. Article 2 of the constitution reads as follows: "Section 1. The powers of the government of this state are divided into three distinct departments, --the legislative, executive, and judicial; and no person or collection of persons, charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed and permitted." It is claimed that the state auditor is an officer of the executive department, and should not be subject to control by the judicial department, and that such control is inconsistent with the independence of the executive department. The great weight of authority seems to be in favor of the proposition that the governor of the state, as the head of the executive department, should be exempt from any interference or control by the judicial department, at least to the extent of his executive and political duties, as distinguished from those that are merely ministerial. Indeed, it is very questionable whether ministerial duties should be made an exception. But few, if any, of the cases extend this exemption from judicial control to any other state officers except the governor; and such exemption seems inconsistent with existing and statutory and constitutional provisions now in force in Wyoming. The constitution (article 5, § 3) provides that "the supreme court shall have original jurisdiction in * * * mandamus as to all state officers." Some statutory provisions, especially applicable to this cause, are the following: "Rev. St. § 3073. Mandamus is a writ in the name of the territory (state) to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. Sec. 3074. The writ can only be issued by the supreme court or the district court, and, though it may require an inferior tribunal to exercise its judgment, or to proceed to the discharge of any of its functions, it cannot control judicial discretion." "Sec. 3076. The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially interested." It would seem clear, both in reason and by authority, that under these constitutional and statutory provisions, the state auditor is subject to the writ of mandamus in proper cases.

By section 21 of an act authorizing the organization of a territorial militia, approved March 14, 1890, it is provided that "the adjutant general shall, at the expense of the territory, provide the several departments, on their requisition, the necessary rosters, books of record, blank commissions, enlistments, discharges, rolls, and other papers required by law and regulations." It is alleged that the articles constituting the bill in question are necessary books and articles for the use of,...