State ex rel. Ledwith v. Brian

• Decision Date: 06 April 1909
• Docket Number: 16,058
• Citation: 120 N.W. 916,84 Neb. 30
• Parties: STATE, EX REL. JOHN J. LEDWITH, RELATOR, v. LAWSON G. BRIAN, TREASURER, RESPONDENT
• Court: Nebraska Supreme Court

120 N.W. 916

84 Neb. 30

STATE, EX REL. JOHN J. LEDWITH, RELATOR, v. LAWSON G. BRIAN, TREASURER, RESPONDENT

No. 16,058

Supreme Court of Nebraska

April 6, 1909

ORIGINAL application for a writ of mandamus to compel respondent, as state treasurer, to countersign a warrant drawn on the university temporary fund. Writ allowed.

WRIT ALLOWED.

Charles S. Allen, for relator.

William T. Thompson, Attorney General, and Grant G. Martin, contra.

LETTON J. ROSE, J., dissenting.

OPINION

LETTON, J.

This is an application for a mandamus to compel the state treasurer to countersign a warrant for the sum of $ 35 issued by the state auditor and payable from the university temporary fund. The state treasurer's return to the writ alleges that he refused to countersign the warrant for the reason that there is no money in the temporary university fund with which to pay the same or to become available for its payment; that he has paid and canceled warrants on this fund to the amount of $ 661,297.40, and that there are $ 138,651.22 of outstanding warrants against it; that his collections have been from taxes $ 569,312.60, and from interest on investments $ 69,728.07; that, estimating the amount of taxes which will be received by him during the remainder of the biennium with reference to the amount already paid in warrants, warrants have already been issued to a greater sum than the total collections will amount to for the biennium, and that all taxes collected after the end of the first fiscal quarter after the adjournment of the present legislature lapse, as provided by section 19, art. III of the constitution; that the appropriation of the proceeds of the one mill tax for the years 1905 and 1906 not appropriated by the legislature of 1905 is a nullity for the reason that the appropriation of that legislature exceeded the whole of the one mill tax for these years; and that the income from the university permanent investment was not appropriated by the legislature and hence said income cannot be used in the payment of warrants until appropriated.

1. The first point made by the respondent is that under the constitution appropriations made by the legislature of 1907 end with the expiration of the first fiscal quarter after the adjournment of the present legislature, and that consequently all taxes collected after the end of that fiscal quarter cannot be credited to the university fund or be included in calculations made to ascertain the money accruing to said fund. The language of the appropriation act is: "The proceeds of the one mill university tax for the years 1907 and 1908 and so much of the proceeds of the one mill tax for the years 1905 and 1906 as was not appropriated at the last session of the legislature are hereby appropriated for the biennium ending March 31, 1909 to the use of the state university for current expenses, buildings and permanent improvements, as directed in section 19, ch. 87, Compiled Statutes of Nebraska of the year 1905." Laws 1907, ch. 151. Several of the points argued in the hearing of this case were decided in the case of State v. Searle, 79 Neb. 111, 112 N.W. 380. In that case it was held that the appropriation of the proceeds of the one mill tax for the years 1907 and 1908 was a specific appropriation within the meaning of the constitution; that the appropriation was certain because it can be made certain, and that warrants might be drawn against the fund whether the money was actually in the treasury or not, as long as the warrants did not exceed the amount of the appropriation. See, also, opinion of POUND, commissioner, in Weston v. Herdman, 64 Neb. 24, 30, 89 N.W. 384. Respondent now contends that, because the legislature used the words "the proceeds of the one mill tax," and since the constitution (art. III, sec. 19) provides that each appropriation shall end with the expiration of the first fiscal quarter after the adjournment of the next regular session of the legislature, the treasurer has no right to countersign warrants in excess of the amount collected or which in all probability will be collected during the biennium. We think that, under the constitutional provision as to the ending of appropriations, it is the unused or unexpended surplus of the amount appropriated that lapses into the general fund, and not the uncollected portion of an appropriation, as the respondent contends. To illustrate, if an appropriation of $ 100,000 is made from a certain fund, and if when the end of the biennium arrives only $ 90,000 has been used or expended, either by the issuance and payment of warrants or by their issuance and registration under the law, then $ 10,000 would lapse; on the other hand, if the whole $ 100,000 had been expended by the issuance of warrants, there would be nothing unexpended which could lapse. The uncollected portion of the appropriation could not lapse, if its collection had been anticipated by the issuance of warrants. Opinion of the Judges, 5 Neb. 566. The object of the constitutional provision requiring biennial appropriations for the support of the government is to render all departments of the state government dependent upon the will of the people as expressed by its representatives and to require the return to the source of power every two years for the necessary means of existence. The conservation of our liberties by the fathers in the past depended largely upon the control of the purse by the representatives of the people. State v. Moore, 50 Neb. 88, 69 N.W. 373; Ristine v. State, 20 Ind. 328; Humbert v. Dunn, 84 Cal. 57, 24 P. 111; Clayton v. Berry, 27 Ark. 129; McCauley v. Brooks, 16 Cal. 11; State v. King, 108 Tenn. 271, 67 S.W. 812.

Appropriation laws, as well as all others, should be construed so as to promote and effect their object and design. Note to Carr v. State, 22 Am. St. Rep. 624, 638 (127 Ind. 204, 26 N.E. 778). This we think would not be done if we held that no money could be expended in advance of its collection during the biennium, under the provisions of the appropriation. In order to constitute an appropriation, the only things necessary are that an amount be specified and a fund be provided out of which the money shall be paid. It is not essential that the money be in the treasury either at the time of the appropriation or at the time that warrants are issued in payment of claims under the appropriation, unless in the latter case the law expressly limits in some way the issuance of warrants.

We are also of the opinion that the appropriation was of the whole amount of the tax, and not of that portion only which was actually collected during the biennium. If the act had said "that portion of the proceeds of the one mill tax for 1907 and 1908 which will be collected during the biennium," it would then have meant what the respondent contends, but this is not what the legislature said. The Century dictionary defines "proceeds" as "the amount proceeding or accruing from some possession or transaction." Webster defines it as "yield, issue, product." Levy is defined by the Century as "the amount accruing from a tax or an execution." To appropriate "the one mill levy" would seem, under these definitions, to be the same as to appropriate "the proceeds of the one mill levy," and we think the expressions have no different force or effect. In People v. Auditor, 12 Ill. 307, the supreme court of Illinois speaks of the fund created by a tax of two mills on the dollar as "the proceeds of the two-mill tax," and treats the appropriation as specific, though limited by a further provision as to annual collections not contained in our constitution.

We are of the opinion that the legislature intended to appropriate an amount of money equal to that produced by the collection of one mill upon each dollar of assessed valuation in the state. The appropriation could be made specific by a mere matter of computation, and the case is no different than if the legislature had made the computation and inserted the amount in the act. As soon as the grand assessment roll was ascertained, the sum became fixed and certain. The constitutional provision limiting the duration of the appropriation to the end of the first fiscal quarter after the adjournment of the legislature only applies if the fund appropriated has not been exhausted by the issuance of warrants upon it during the biennium. In such case whatever unexhausted surplus there might be would lapse. It is argued that this construction of the law may result in creating a deficit, and that warrants may be issued which there is no money to pay. We can only say that this is a matter for the legislature. In a number of instances it has limited the issue of warrants to a certain per cent. of the levy, or restricted their issuance except when there was money in the treasury to meet them, but this it failed to do in this instance. While we may question its good judgment in making the appropriation in such a form, we cannot interfere with its action, and we think it is entirely proper for the auditor to issue, and the duty of the treasurer to countersign, warrants to an amount equal to the whole of the one mill levy.

2. The next question necessary to decide is whether the money arising from the rental of university lands and interest upon deferred payments for sales of such lands can be drawn without a specific biennial appropriation. This fund is primarily derived from the act of congress approved July 2 1862 (12 U.S. Statutes at Large, ch. 130, p. 503), donating public lands to the several states for the endowment, support and maintenance of colleges of agriculture and the mechanic arts, and from the act to enable the people of Nebraska to form a constitution and state government, passed April 19, 1864 (13 U.S. Statutes at Large,...