State ex rel. Murane v. Jack

• Decision Date: 17 August 1937
• Docket Number: 2038
• Citation: 70 P.2d 888,52 Wyo. 173
• Parties: STATE EX REL. MURANE v. JACK
• Court: Wyoming Supreme Court

70 P.2d 888

52 Wyo. 173

STATE EX REL. MURANE v. JACK

No. 2038

Supreme Court of Wyoming

August 17, 1937

Rehearing denied October 4, 1937, Reported at: 52 Wyo. 173 at 193.

Original proceeding in mandamus by the State of Wyoming, on the relation of C. D. Murane, against William "Scotty" Jack, as auditor of the State of Wyoming. On general demurrer by the defendant to the plaintiff's petition.

Demurrer sustained, peremptory writ of mandamus denied, and judgment of dismissal entered.

Judgment dismissed.

For the relator there was a brief by E. E. Enterline, Madge Enterline and W. J. Wehrli of Casper, and oral argument by Messrs Enterline and Wehrli.

Rehearing denied October 4, 1937. See 71 P.2d 917.

This action is based on Section 30-114 R. S., as amended by Chapter 66, Laws of 1933. Arbitrary power is prohibited by the State Constitution--Article I, Section 7 Constitution; State v. Loucks, 30 Wyo. 485. An arbitrary reduction of telephone rates was condemned by the Supreme Court in the case of Bell Company v. Commission, 57 S.Ct. 724. This court has upheld the right of a sheriff to charge eight cents per mile for the use of his own automobile. Taxpayers' League of Carbon County v. McPherson (Wyo.) 54 P.2d 897. Damages are recoverable in mandamus proceedings. Sec. 89-4513, R. S. 1931. Bailey v. Edwards (Mont.) 133 P. 1095; State v. Cocking (Mont.) 213 P. 594; Green v. McCracken (Kans.) 67 Pa,c. 857; Larabee Flour Mills Co. v. Ry. Co., 116 P. 901; Trust Company v. Finney (Kans.) 144 P. 222. Relator is entitled to a peremptory writ against the respondent and an award of damages.

For defendant, there was a brief by Ray E. Lee, Attorney General Thos. F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General and oral argument by Messrs. Lee and Shea.

Mileage fees shall not exceed eight cents per mile. Chapters 12 and 66, Laws 1933. An officer may use his own automobile in the performance of official duties. Chapter 66, Section 1 of Laws of 1931. Only actual expenses are allowable under Chapter 12, Laws 1933; Peterson v. Guernsey, 26 Wyo. 272. A lump sum in the way of mileage may be allowed. Taxpayers v. McPherson, 49 Wyo. 251. Chapter 66, above referred to, does not fix the mileage chargeable, but we think it is clear that only actual expenses of transportation are allowed, which shall not exceed eight cents per mile. Clark v. Board (N. D.) 267 N.W. 138. Some of the states confine the authority of the Governor within very narrow limits. 59 C. J. 115; Constantin v. Smith (Tex.) 57 F.2d 22; Royster, et al. v. Brock, 79 S.W.2d 707. Other authorities reach the opposite conclusion, towit, State v. Buchanan, 24 W.Va. 362; State v. Clausen (Wash.) 264 P. 4031 Gordon, et al. v. Morrow, 218 S.W. 258; Miller v. Barber, 4 Wyo. 409; Jeffrey v. Burdick, 3 Wyo. 588; Article IV, Sec. 1 and Sec. 4 of the Constitution. See also Section 109-104, R. S. 1931; Section 16-111, 119; Section 53, Chapter 148, Laws 1937. The authority of the Governor in this state is not disturbed or diffused over a board, but resides solely in the Governor. Chapter 148, Laws 1937, Section 53. Plaintiff has not made a showing sufficient to authorize the issuance of the writ in this case. State v. Schnitger, 16 Wyo. 479; Buder v. Hackman (Mo.) 265 S.W. 532.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case arises as an original proceeding in this court, speaking generally, in consequence of a disagreement between the defendant, Wm. "Scotty" Jack as State Auditor of the State of Wyoming, and the plaintiff, C. D. Murane, one of the District Judges of this commonwealth, concerning the proper interpretation of Chapter 66, Laws of Wyoming, 1933, which amended and re-enacted Section 30-114 W. R. S., 1931, prescribing the mileage expense to be paid state, county or precinct officers in Wyoming.

By this petition for a writ of mandamus the plaintiff has presented five alleged causes of action against the defendant. In substance, the first of these after setting out the official positions of the parties, states that the plaintiff on April 4 and 5, 1937, used his own automobile in actually and necessarily traveling 104 miles from the City of Casper, where he resides, to and returning from the Town of Douglas, Wyoming, where he held a session of the district court; that thereafter, during the month, he presented to the defendant, for allowance and payment an itemized expense voucher for $ 13.32 for per diem and expense properly incurred in the discharge of official duties as District Judge, copy of such voucher being attached and made a part of the pleading.

This voucher discloses that the mileage account for the use of plaintiff's automobile in official business was reckoned at the flat rate of eight cents per mile; there is no attempt to itemize actual expense of gas, oil, etc. incurred in the trips taken.

It is then averred that thereafter, on or about April 30, 1937, the defendant unlawfully added $ 1.25 for additional per diem charge and deducted two cents per mile from the mileage charge submitted by plaintiff, issuing to plaintiff a warrant upon the State Treasurer, payable to the plaintiff's order, for the sum of only $ 12.49, which warrant plaintiff declined to accept, and shortly afterwards returned the same to the defendant; that said defendant notified the plaintiff that the sole reason for his action in reducing said claim for mileage was due to an executive order made by the Governor of Wyoming, effective as of April 27, 1937, whereby said defendant "was commanded by the Governor to disallow all claims presented to him by the District Judges of the State for mileage at the rate of eight cents per mile for traveling in their own automobiles, and to reduce said charges for mileage, if presented by the Judges at the rate of eight cents per mile, to six cents per mile", and to issue warrants to them accordingly; that although at all times a sufficient appropriation of funds by the State Legislature to meet such expenses existed in the hands of the State Treasurer, and although demand therefor has been made, said defendant refused and still refuses to issue plaintiff a warrant for the sum claimed as aforesaid; and that plaintiff is without an adequate remedy at law.

The second cause of action, with similar allegations, except as to distances traveled and county seats visited on official business, rests upon a claim of the plaintiff for $ 61.60 and an allowance by the defendant thereon of only $ 52.45; the third cause of action rests upon his claim for $ 23.37 and an allowance thereon by the defendant of $ 20.34; the fourth cause of action is based upon his claim for $ 65.43 and defendant's allowance thereon of $ 58.76; and the fifth cause of action presents his claim for $ 12.07 and an alleged erroneous allowance thereon by the defendant of $ 9.99, this cause of action claiming also attorney's fees for the conduct of the litigation.

Plaintiff's petition concludes with a prayer for the issuance of a peremptory or alternative writ of mandamus directed to the defendant, as this Court should order. An alternative writ was accordingly issued, and in response thereto the defendant has filed a general demurrer to each of the aforesaid causes of action. Upon the issue of law thus presented argument was had, briefs have been submitted for the respective parties, and the matter is now for disposition.

The controversy before us arises, as already intimated, upon what construction shall be given the language of Section 1 of Chapter 66, Laws of Wyoming, 1933, which reads:

"That Section 30-114, Wyoming Revised Statutes, 1931, be amended and re-enacted to read as follows:

"Section 30-114. In all cases where a mileage fee or mileage expense is allowed to any state, county or precinct officer, it shall not exceed the rate of eight cents per mile, for each and every mile actually and necessarily traveled in the performance of the duties of his office. In determining the mileage it shall be computed by the nearest practicable route. It shall be lawful for such officer to use his own automobile, or other conveyance, in the performance of such official duties. Before any claim for the service or use of such conveyance shall be paid, the claimant shall present to the State Auditor, or the Board of County Commissioners, as the case may be, for audit and payment, a duly verified claim made out in separate items, properly dated, and the value of each item specifically described, and showing to the full satisfaction of the auditing officer, or board, that such expense has been properly incurred for the benefit of the State or county, as the case may be, in the pursuance of the official duties of such claimant."

More concretely the phraseology of the first and third sentences of the quoted statute is the focal source of the trouble.

It is contended on behalf of the plaintiff that when the statute employs the words relative to mileage expense, "it shall not exceed the rate of eight cents per mile", it fixes a flat rate of eight cents therefor when the official uses his own automobile in the discharge of the duties imposed on him by law. It is insisted that this question was settled by the language of this court in the case of Taxpayers' League of Carbon County, Wyoming, v. McPherson et al., 49 Wyo. 251, 54 P.2d 897, 160 A. L. R. 767.

The case just mentioned came here upon reserved constitutional questions only. It was an action by the Taxpayers' League of Carbon County to recover of the defendants, the sheriff and the undersheriff of that county and the surety on the sheriff's official bond, certain sums of money which the League claimed had been overpaid as mileage to these officers by the County Commissioners...