State ex rel. McDonald v. Holmes

• Decision Date: 20 December 1909
• Parties: STATE ex rel. McDONALD v. HOLMES, State Auditor.
• Court: North Dakota Supreme Court

19 N.D. 286

123 N.W. 884

STATE ex rel.

McDONALD

v.HOLMES, State Auditor.

Supreme Court of North Dakota.

Dec. 20, 1909.

Syllabus by the Court.

Certain preliminary questions held without merit.

The more adequate and speedy remedy which a suitor must possess to defeat his right to a mandamus is a legal remedy rather than a physical one.

It is essential, to constitute a legislative “appropriation,” that the act of the Legislature, attempting to make such an appropriation, limit the amount of the state's funds which may be applied to the purpose contemplated by the act, as otherwise the officials of the state would have no means of determining the amount of tax to be levied to meet the demands of claimants, and the revenues of the state might be exhausted without the Legislature intending to appropriate them wholly to the subjects covered by such acts.

The last sentence of section 62 of the Constitution, which reads: “All other appropriations shall be made by special bills, each embracing but one subject”-is equivalent to requiring a specific appropriation for each subject other than those embraced in the general appropriation bill.

To constitute an appropriation under the provisions of the Constitution of this state, quoted in the opinion, an act must set apart from the public revenue a definite sum of money for the specific object in such a manner that the state officials are authorized to use the amount so set apart, and no more, for that object.

Chapter 139, p. 185, Laws 1903, providing for the payment of a reward to persons who shall secure the arrest and conviction of violators of chapter 63 of the Penal Code of 1899, known as the “Prohibition Law,” while creating an obligation on the part of the state to pay the rewards earned under the terms of that chapter, is inadequate as an appropriation, and does not authorize the auditor to draw his warrant on the State Treasurer for the sums so earned, for the reason that the act does not limit the total amount which may be paid as such rewards in any year.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Mandamus by the State, on relation of Don. McDonald, against H. L. Holmes, as State Auditor. From a judgment awarding a peremptory writ, defendant appeals. Reversed.

Thomas F. McCue and Andrew Miller, Attys. Gen., and Alfred Zuger and C. L. Young, Asst. Attys. Gen., for appellant. J. B. Wineman, for respondent.

SPALDING, J.

This is an appeal from an order and judgment of the district court of Grand Forks county, directing the auditor of the state of North Dakota to forthwith attest, issue, and deliver a warrant in the sum of $100 to the Treasurer of the State, to be by such treasurer credited to the county of Grand Forks in his settlement with the treasurer of that county, as provided by chapter 139, p. 185, of the Laws of 1903. An alternative writ of mandamus was first issued by that court, and to it the appellant demurred. The judgment awarding the peremptory writ of mandamus resulted from an order of the district court overruling such demurrer. The first objection is that, inasmuch as the State Auditor's official residence is in Bismarck, in the Sixth judicial district, the district court of the First judicial district had no jurisdiction to mandamus that official. The record fails to disclose any objection in district court, and no demand was made that the proceeding be transferred to the district court of Burleigh county in the Sixth district, and the subject, while pointed out, is not discussed in the brief of the appellant. It is objected in the second place that McDonald, the county treasurer of Grand Forks county, on whose relation the proceeding was instituted, is not shown to have such an interest in the proceeding as to authorize him to bring the same, either in person or in the name of the state. The treasurer being liable to the county on his bond for the proper accounting for the funds belonging to the county, and having paid the money from the treasury, is beneficially interested, and may properly act as relator. No authorities are cited by appellant on this point. It is next contended that the relator had a more adequate and speedy remedy by means of withholding the money so paid out in his settlement with the State Treasurer. It is self-evident that, if he had no right to withhold it, the ability or opportunity to do so does not furnish a remedy which can be considered in a legal proceeding. The remedy, in the eyes of the law, which defeats the right to mandamus, is a legal remedy rather than a physical one.

The main contention, as we are advised, in the district court, and the one on which its judgment was rendered, was to the effect that chapter 139, p. 185, Laws 1903, had been repealed by chapter 187, p. 303, Laws 1907, known as the “Temperance Commissioner Law.” This contention is abandoned in this court, and, were this the only question involved, the order and judgment of the district court would undoubtedly be affirmed. Other questions have been discussed here of such a nature that, even though not called to the attention of the trial court, they must be considered by this court. Chapter 139, p. 185, Laws 1903, omitting the title, reads as follows:

“1. The sum of fifty dollars shall be paid to any person or persons for the arrest and conviction of each and every person who violates any of the provisions of chapter 63 of the Penal Code of the state of North Dakota, which amount shall be paid to the person or persons entitled thereto, on the presentation of a certificate issued as hereinafter provided from the state's attorney of the county where such conviction was had setting forth the object for which the same was issued to the treasurer of the proper county; and said treasurer shall take a receipt for the same, setting forth the object for which it was paid, which certificate and receipt shall be forwarded to the State Auditor, who shall, at the next settlement, place a warrant for such amount in the hands of the State Treasurer to be credited on the settlement with said county treasurer.

2. Any person or persons claiming such reward shall, within twenty days after the conviction of the criminal, apply to the state's attorney of the county wherein such conviction was had, who shall thereupon issue to such claimant the certificate provided for in section 1 hereof.”

Section 62 of the Constitution reads: “The general appropriation bill shall embrace nothing but appropriations for the expense of the executive, legislative and judicial departments of the state, the interest on the public debt and for public schools. All other appropriations shall be made by special bills, each embracing but one subject.” Section 186 of the Constitution provides that no money shall be paid out of the state treasury except on appropriation by law and on warrant drawn by the proper officer. The Constitution (section 174) requires the Legislature to provide for raising revenue sufficient to defray the expenses of the state for each year, not to exceed in any year four mills on the dollar of the assessed valuation of the taxable property in the state, and also a sufficient sum to pay the interest on the state debt.

The important question to be determined on this appeal is, Does chapter 139, p. 185, Laws 1903, constitute a valid appropriation of the revenues of the state? Courts have furnished numerous and varying definitions of the word “appropriation” when applied to a legislative act. But it is clear to us that no legal definition of the word can be given applicable to all states; that the provisions of the Constitution of the state whose law is being construed must be taken into consideration. Under the terms of some Constitutions provisions made by the Legislature for the payment of obligations of the state may be appropriations, which, under the terms of others, would be inadequate, and would furnish no warrant for the payment of money by the state officials. Section 62 seems to contemplate that each legislative assembly shall, in one act, make appropriations for the various purposes or subjects enumerated therein, and that it shall be known as the ...