State ex rel. McLean v. Liedtke

• Decision Date: 08 January 1880
• Citation: 4 N.W. 61,9 Neb. 468
• Parties: THE STATE OF NEBRASKA EX REL. GEORGE MCLEAN, JR., v. F. W. LIEDTKE.
• Court: Nebraska Supreme Court

9 Neb. 468

4 N.W. 61

THE STATE OF NEBRASKA EX REL. GEORGE MCLEAN, JR.,

v.F. W. LIEDTKE.

Supreme Court of Nebraska.

Filed January 8, 1880.

Original application for mandamus.

J. Stuart Dales, for relator.

C. J. Dilworth, Attorney General, for respondent.

COBB, J.

The relator, who is janitor of the university building, acting under appointment of the board of regents of the university, at a stated salary, payable monthly, makes and files his relation against the respondent, who is auditor of public accounts of the state of Nebraska, and prays the judgment of this court that the said respondent be required without delay to draw his warrant in favor of the relator, upon the state treasury, for the sum of one hundred dollars, the amount of his salary for the months of April and May, 1879; the said relator having, on the 9th day of June, 1879, presented to the said respondent the certificate of said board of regents showing him, the said relator, to be entitled to the said warrant for salary, and which was by the said respondent refused.

The respondent appears and makes answer to the said relation, and states, as reasons why a peremptory writ of mandamus should not issue against him, that no specific appropriation has been made by the legislature to pay the said claim out of the regents' fund for the months of April and May, 1879, upon which fund the board of regents of the university issued their certificates for his said salary. Respondent cites section 22 of art. 3, of the Constitution of the state, “that no money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” Also, that the legislature at its last session failed to appropriate any of the funds which constitute the regents' fund, and for that reason respondent refuses to draw any warrant on that fund. The respondent further states, in his said answer, that at the last session of the legislature an act was passed making appropriations for the current expenses of the state government, etc., approved February 27, 1879, including the expenses of the university; and in said act the sum of $25,000 per annum for two years was appropriated out of the general fund for the support of the university, and which sum is unexpended. Wherefore, and for the reasons above stated, the respondent refused to draw his warrant on the regents' fund in favor of the relator, etc.

In any event a peremptory writ will have to issue, and the only question of any...