State ex rel. Krabach v. Ferguson

• Decision Date: 05 May 1976
• Docket Number: No. 75-1130,75-1130
• Citation: 46 Ohio St.2d 168,346 N.E.2d 681
• Parties: , 75 O.O.2d 207 The STATE ex rel. KRABACH v. FERGUSON, Auditor.
• Court: Ohio Supreme Court

Page 168

46 Ohio St.2d 168

346 N.E.2d 681, 75 O.O.2d 207

The STATE ex rel. KRABACH v. FERGUSON, Auditor.

No. 75-1130.

Supreme Court of Ohio.

May 5, 1976.

Syllabus by the Court

1. The Auditor of State has the authority and duty to investigate or require further proof of a claim presented to him, where ample reason exists to question the legality of the claim. (R.C. 115.35 construed.)

2. A writ of mandamus will not lie to compel the Auditor of State to issue warrants for payment of claims for purchases of gasoline and oil charged to state credit cards, when the auditor lacks sufficient information to determine that the charges were made for purchases used in state vehicles, and that the purchases were charged to the proper credit card and the proper state department.

This is an original action in mandamus to compel the Auditor of State to issue warrants for payments of state oil and gasoline credit card charges. The parties through their counsel have agreed to the following stipulation of facts:

'1. That relator-plaintiff, Richard Krabach, is the duly appointed Director of the Ohio Department of Administrative Services and respondent-defendant, Thomas E. Ferguson, is the duly elected Auditor of the state of Ohio.

'2. That most state government vehicles display regular state of Ohio license plates which identify the plate as a state government plate, and they are black and white in color.

'3. That other state vehicles display 'cover' or 'gratis' license plates which are green and white in color and are not identified on their face as being state government plates.

'4. That the auditor has a list of the regular black and white government license plates but does not have a list of the 'cover' or 'gratis' plates now being displayed on state vehicles.

'5. That for the past few months the auditor has been denying the payment of state oil and gasoline credit card charges unless the charges are to state government vehicles displaying state government plates or to cover plate vehicles when the cover plate number appears on a list of cover plate vehicles provided by an agency.

'6. That on October 28, 1975, the auditor's office sent a letter to all state agencies requesting a certified copy of the registration card on each vehicle assigned to each department of state government. * * *

'7. That in response to the October 28th, 1975 letter referred to in paragraph 6 above, some departments supplied copies of the cards and others have supplied lists of their 'cover' plates, but the vast majority of the state departments forwarded their requests to Director Krabach for response.

'8. That Director Krabach responded to the letter from the auditor's office of October 28th, 1975 with his own letter dated October 31, 1975 and stated that providing the information would accomplish nothing. * * *

'9. That the following is the position of the auditor:

'A. That a list be provided, broken down by state department, of all 'cover' plates in use by the state of Ohio, side by side with the corresponding state government license plate which belongs with each vehicle.

'B. Each department's section of this list must be attested, i. e., certified as to accuracy and completeness, by a responsible department official having direct knowledge and control over this information.

'C. That the auditor's office would reserve the right on occasion to determine the ownership of vehicles carrying the 'cover' plates by checking the official documentation of ownership of such vehicles at the Bureau of Motor Vehicles.

'10. That the following is the position of the Director of the Department of Administrative Services:

'A. That his department would provide a blind list of cover plates, not beoken down by state department and without the corresponding state government plate number side by side with the 'cover' plate number.'

'B. That the blind list would be attested to by some state official having direct knowledge and control over the information.

'C. That the Director of Administrative Services would not concede the right of the auditor's office on occasion to determine the ownership of vehicles carrying the 'cover' plates by checking the official documentation of ownership of such vehicle at the Bureau of Motor Vehicles.'

The parties also have submitted as a stipulation exhibit a copy of a state credit card charge made by an individual for a state vehicle with 'cover' plates. This exhibit is a typical credit card receipt slip, and the parties have stipulated that it is representative of the information on this variety of charge slips.

William J. Brown, Atty. Gen., Larry R. George E. Lord, Lima, for relator.

William J. Brown, Atty. Gen., Larry R. Zingarelli and David H. Beaver, Columbus, for respondent.

STERN, Justice.

The question presented in this case concerns the duties of the Auditor of the state of Ohio under R.C. 115.35. That statute provides:

'The auditor of state shall examine each voucher presented to him, or claim for salary of an officer or employee of the state, or per diem and transportation of the commands of the national guard, or judgment against the state pursuant to Chapter 2743 of the Revised Code, and if he finds it a valid claim against the state and legally due and that there is money in the state treasury appropriated to pay it, and that all requirements of law have been complied with, he shall issue a warrant on the treasurer of state for the amount found due, and file and preserve the invoice in his office. He shall draw no warrant on the treasurer of state for any claim unless he finds it legal and that there is money in the treasury which has been appropriated to pay it.'

The auditor, respondent in this case, cites as a proposition of law that his duties under R.C. 115.35 are discretionary in nature and that generally mandamus will not lie to control the exercise of discretion. That proposition is clearly erroneous. This court has often issued writs of mandamus ordering the auditor to pay legal claims. State ex rel. Clifford v. Cloud (1966), 7 Ohio St.2d 55, 218 N.E.2d 605; State, ex rel. Haines, v. Rhodes (1958), 168 Ohio St. 165, 151 N.E.2d 716; State, ex rel. Allen, v. Ferguson (1951), 155 Ohio St. 26, 97 N.E.2d 660; State, ex rel. Witten, v. Ferguson (1947), 148 Ohio St. 702, 76 N.E.2d 886; State, ex rel. Glander, v. Ferguson (1947), 148 Ohio St. 581, 76 N.E.2d 373; State, ex rel. Matheney, v. Ferguson (1943), 141 Ohio St. 61, 46 N.E.2d 768; State, ex rel. McCaw, v. Ferguson (1941), 139 Ohio St. 1, 38 N.E.2d 68; State, ex rel. Riley, v. Oglevee (1881), 36 Ohio St. 324. The auditor has no discretion to refuse payment of valid and legal claims when there is money in the state treasury appropriated to pay for them. His duty is simply to draw warrants for valid claims, and to refuse to draw warrants for invalid or illegal ones, or those for which there is no money appropriated in the treasury. The auditor must necessarily make findings as to the legality of claims against the state, but in doing so he must rely upon law, and not discretion. This court stated the applicable principles in State, ex rel. S. Monroe & Son Co., v. Tracy (1935), 129 Ohio St. 550, 567-68, 196 N.E. 650, 657:

'Outside of the courts, the Auditor of State, the officer against whom this action is directed, has the last word in so far as the legality of state contracts is concerned.'

The court then quoted G.C. 243, which differs from R.C. 115.35 only in an additional phrase not relevant here, and continued:

'Let it not be understood that this section renders the Auditor of State entirely immune to the extraordinary writ of mandamus. If a voucher representing a valid claim against the state is presented to him, concerning which all the requirements of law have been complied with, and it is legally due and there is money in the state treasury which has been duly appropriated to pay it, then the law specially enjoins on him as a duty resulting from his office the issuance of a warrant on the treasurer of state in payment of the claim, and the claimant is entitled to a writ of mandamus to secure his warrant if it is refused; but if the claim does not meet all these requirements, it is just as much his duty to refuse the warrant.

'Where a claim is questionable, the dictates of good sense and good business judgment impliedly at least demand that he refer it to the law department of the state for opinion, and be governed thereby.'

This case does raise an issue as to the auditor's discretion, but only as to his discretion to require...