State ex rel. Norfolk Beet-Sugar Co. v. Moore

• Decision Date: 16 December 1896
• Docket Number: 8818
• Citation: 69 N.W. 373,50 Neb. 88
• Parties: STATE OF NEBRASKA, EX REL. NORFOLK BEET-SUGAR COMPANY, v. EUGENE MOORE, AUDITOR OF PUBLIC ACCOUNTS
• Court: Nebraska Supreme Court

69 N.W. 373

50 Neb. 88

STATE OF NEBRASKA, EX REL. NORFOLK BEET-SUGAR COMPANY, v. EUGENE MOORE, AUDITOR OF PUBLIC ACCOUNTS

No. 8818

Supreme Court of Nebraska

December 16, 1896

ORIGINAL application for mandamus to compel the auditor of public accounts to issue a warrant in payment of relator's claim for bounty on beet-sugar, under chapter 1, Session Laws of 1895. Writ denied.

WRIT DENIED.

Charles F. Manderson and W. S. Summers, for relator:

Where a producer of sugar accepts the offer of a bounty from the state and complies with the statute, it would seem to be as much of a contract as it is possible for any citizen to make with the government. All the elements of a contract are present,--the terms, the consideration, and the lawful object. (Calder v. Henderson, 54 F. 802.)

A state cannot impair the obligation of contracts. (State of New Jersey v. Wilson, 7 Cranch [U. S.], 164; Woodruff v Trapnall, 10 How [U. S.], 190; Charles River Bridge v Warren Bridge, 11 Pet. [U. S.], 549.)

The statute makes an appropriation. The use of technical words in a statute is not necessary in order to make an appropriation. It is sufficient if the legislative intention appears. (Campbell v. Board of Commissioners of State Soldiers' and Sailors' Monument, 115 Ind. 591; In re Appropriations, 32 P. [Colo.], 272; Proll v. Dunn, 80 Cal. 220; Carr v. State, 22 Am. St [Ind.], 624; Reynolds v. Taylor, 43 Ala. 420; Nichols v. Comptroller, 4 Stew. & P. [Ala.], 154; Thomas v. Owens, 4 Md. 189; Green v. Purnell, 12 Md. 329; State v. Hickman, 10 Mont. 497; State v. Weston, 4 Neb. 216; People v. Brooks, 16 Cal. 11; Goodykoontz v. Acker, 19 Colo. 360; Ristine v. State, 20 Ind. 329; State v. Hoffman, 35 O. St. 435; State v. Burdick, 33 P. [Wyo.], 125; Reynolds v. Taylor, 43 Ala. 420; People v. Miner, 46 Ill. 384; Humbert v. Dunn, 84 Cal. 57; State v. Moore, 40 Neb. 854; Hartman v. Greenhow, 102 U.S. 672; Poindexter v. Greenhow, 114 U.S. 270; State v. Cardozo, 28 Am. [S.C.], 275.)

A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, contra:

The act does not appropriate, within the meaning of the constitution, any money for payment of a bounty. (State v. Babcock, 22 Neb. 33; State v. Moore, 36 Neb. 579; State v. Medberry, 7 O. St. 522; State v. Weston, 6 Neb. 17; State v. Liedtke, 9 Neb. 468; State v. Wallichs, 12 Neb. 407; State v. Kennon, 7 O. St. 546; State v. Babcock, 18 Neb. 222; State v. Stover, 47 Kan. 119.)

OPINION

The facts are stated in the commissioner's opinion.

IRVINE, C. J.

This is an original application for a writ of mandamus to compel the respondent, the auditor of public accounts, to draw a warrant in favor of the relator. The right to the warrant is claimed by virtue of "An act to provide for the encouragement of the manufacture of sugar and chicory, and to provide a compensation therefor." (Session Laws, 1895, ch. 1.) By the first section of this act it is provided "that there shall be paid out of the state treasury to any person, firm, or corporation engaged in the manufacture of sugar in this state from beets, sorghum, or other sugar-yielding canes or plants grown in Nebraska, the sum of five-eighths of one cent per pound upon each and every pound of sugar so manufactured under the conditions and restrictions of this act." This is followed by a further provision whereby persons establishing after the passage of the act additional factories shall receive an additional bounty of three-eighths of one cent per pound. Section 2 provides that no money shall be paid upon sugar not containing at least ninety per cent crystallized sugar, nor upon sugar produced from beets for which as much as $ 5 per ton shall not have been paid by the producer, nor upon sugar produced from beets raised by a manufacturer of sugar. Means of determining these facts are then provided by the act. Following sections provide in the same manner for bounties upon chicory. Section 8 is as follows: "When any claim arising under this act is filed, verified, and approved by the secretary of state as herein provided, he shall certify the same to the auditor of state, who shall draw a warrant upon the treasurer for the amount due thereon, payable to the party or parties to whom said sum or sums are due." By section 9 of the act it is provided that it shall be in force a period of three years. The pleadings establish that the relator has manufactured sugar and presented proof thereof entitling it to a bounty of $ 805. The auditor justifies his refusal to issue a warrant upon two grounds: First, that there is no lawful appropriation out of which such bounties may be paid; and second, that if there be such an appropriation, it is in excess of the power of the legislature to make such expenditures, appropriations for other purposes having exhausted the power. No question is raised as to the general validity of statutes providing for bounties. Of the two questions presented, we find it necessary to consider only the first.

It is conceded that the legislature has not, in any general appropriation act or in any way outside of the particular act already cited, made a provision for the payment of the bounty claimed. It is, however, contended that in the provisions quoted from the act of 1895 there exists an appropriation wherewith to pay the bounty created. It is solely to this question that we direct our attention. It will be observed that the act, in brief, designates the amount of bounty to be paid for each pound of sugar manufactured, provides for the manner of ascertaining the amount of sugar manufactured, and directs the auditor, on production of proof of the amount, to draw his warrant upon the treasurer therefor. It does not limit in any way the total sum of money to be so expended, and by its terms the act is to endure for a period of three years. By section 19 of article 3 of the constitution it is provided that "each legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with such fiscal quarter." By section 3 of article 3 it is provided that the sessions of the legislature shall be biennial, except as otherwise provided in the constitution. By section 22 of article 3 it is provided that "no money shall be drawn from the treasury except in pursuance of a specific appropriation made by law and on the presentation of a warrant issued by the auditor thereon, and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution." Do the provisions of the act under consideration constitute a "specific appropriation" for the purpose designated within the meaning of these constitutional provisions, and did the legislature so intend? The relator contends that having accepted the provisions of the act by manufacturing the sugar for which it claims the bounty, its relations with the state are contractual, and that the state cannot refuse payment, because to so do would be to impair the obligations of its own contract. There is, however, a broad distinction between the moral, and even in one sense the legal, obligation of a state to make a payment, and the duty or the power of its officers to fulfill that obligation. Under constitutions such as ours an appropriation for the purpose is indispensable to authorize the state's executive officers to make a payment, no matter how great the moral or the legal obligation may be on the part of the state to make such payment. The state being sovereign, while it may incur obligations, there is no method except those by itself established whereby such obligations may be enforced, and it is in general for the legislature by means of an appropriation to recognize an obligation of the state and permit its enforcement. As said in Ristine v. State, 20 Ind. 328: "A promise by the government to pay money is not an appropriation. A duty on the part of the legislature to make an appropriation is not such. A promise to make an appropriation is not an appropriation. The pledge of the faith of the state is not an appropriation of money with which to redeem the pledge. Usage of paying money in the absence of an appropriation cannot make an appropriation for future payment." And, as said by the same court in Carr v. State, 127 Ind. 204, 26 N.E. 778, while clearly recognizing the obligations of a contract entered into by the state, "there is one essential and far-reaching difference between the contracts of citizens and those of sovereigns, not, indeed, as to the meaning and effect of the contract itself, but as to the capacity of the sovereign to defeat the enforcement of its contract. The one may defeat enforcement but the other cannot. This result flows from the established principle that a state cannot be sued. * * * Nor is this the only method under such a constitution as ours by which a state may defeat the enforcement of its obligation, for the failure to make the necessary appropriation will effectually accomplish that object. * * * The legislature has, therefore, the ability to avoid payment of the obligations of the state by a failure or refusal to make the necessary appropriation, although that body cannot impair the obligation of the contract. Creditors who accept the obligations of the state are bound to know that they cannot enforce their claims by an action against the state directly nor by an action against its officers where no appropriation has been made as the constitution requires." Such citations might be indefinitely multiplied, but the distinction between the obligation of a state to fulfill its contracts and the power of its ministerial officers to fulfill them in the...