State ex rel. R. R. Crow & Co. v. Copenhaver

• Decision Date: 09 September 1947
• Docket Number: 2363
• Citation: 64 Wyo. 1,184 P.2d 594
• Parties: THE STATE OF WYOMING on the Relation of R. R. Crow & Co., a Corporation, Petitioner, v. EVERETT T. COPENHAVER, as State Auditor of Wyoming, Respondent
• Court: Wyoming Supreme Court

184 P.2d 594

64 Wyo. 1

THE STATE OF WYOMING on the Relation of R. R. Crow & Co., a Corporation, Petitioner, v. EVERETT T. COPENHAVER, as State Auditor of Wyoming, Respondent

No. 2363

Supreme Court of Wyoming

September 9, 1947

[Copyrighted Material Omitted]

Original proceeding on the petition of the State of Wyoming on the relation of R. R. Crow & Co., for a writ of mandamus against Everett T. Copenhaver, as State Auditor, as successor of John J. McIntyre, to compel the auditor to draw and issue to relator certain warrants to be drawn on the State Treasurer in payment of money claimed to be due relator and evidenced by certain vouchers. On respondent's demurrer to the petition.

Demurrer sustained, writ denied, and case dismissed.

Writ Denied and Case Dismissed.

For the relator there was a brief by C. A. Lathrop of Cheyenne, Wyoming, A. R. McMicken, Rawlins, Wyoming and Eph U. Johnson of Rawlins, Wyoming, and oral argument by Mr. Lathrop and Mr. Johnson.

POINTS OF COUNSEL FOR STATE AUDITOR

The Auditor is not vested with any control over the money received by the State from the United States pursuant to the provisions of the Smith-Hughes Act and Sec. 67-1201, Wyoming Compiled Statutes, 1945. USCA, Title 20, Ch. 2, Sec. 23.

The State Treasurer is appointed custodian of funds allotted by Federal Act to the State of Wyoming for the promotion of vocational education, and he shall provide for the proper custody and disbursement of such funds on the requisition of the State Board of Education. Sec. 67-1201, W. C. S. 1945.

Neither the Smith-Hughes Act, USCA Title 20, Ch. 2, Sec. 24, nor Sec. 67-1201, WCS, 1945, mention any process of audit and settlement by the Auditor. Instead, they both provide that these Federal funds shall be paid out by the Treasurer upon requisition of the Board of Education. State v. Snyder, 30 Wyo. 468, 222 P. 40.

Actually, the funds donated by the United States under the Smith-Hughes Act do not become funds of the State Treasury. They remain the funds of the United States, merely being placed in the custody of the Treasurer.

The Auditor is required by law to "audit and settle all claims against the state payable out of the treasury." The claims against the "Cooperative Vocational Educational Fund" are not payable from the Treasury; they are payable from Federal Funds in the custody of the Treasurer, and are, therefore, not claims with reference to which the Auditor is given any statutory duty.

There must be some legal duty enjoined upon the defendant before there can be anything for the writ of mandamus to operate upon. Sec. 3-6701, WCS, 1945.

As to funds in "vocational educational contingent, 1945," the auditor is required by law to audit and settle claims and issue warrants for the payment thereof. Session Laws 1945, Ch. 85.

The Auditor is required to audit and settle claims against the states and draw his warrant for the payment thereof, which involves a determination as to whether funds have been appropriated for the purpose. No warrant shall be drawn by the Auditor unless the money has been previously appropriated by law. 18-511, Wyoming Compiled Statutes, 1945.

The powers and duties of the Auditor have been the subject of numerous decisions of this court. Territory ex rel Donzelmann v. Grant, Auditor, 3 Wyo. 241, 21 P. 693; State ex rel Jeffrey v. Burdick, Auditor, 3 Wyo. 588, 28 P. 146; State ex rel Slack v. Owen, Auditor, 7 Wyo. 84, 50 P. 193; State ex rel Murane v. Jack, Auditor, 52 Wyo. 173, 70 P.2d 888; State ex rel Watts v. Jack, Auditor, 58 Wyo. 108, 125 P.2d 165.

The expenditure of vocational education funds for the education of prisoners of war was not within the contemplation of the legislature at the time of making the appropriation. The primary purpose of the maintenance of the common-school system is the promotion of the general intelligence of the people constituting the body politic, and thereby to increase the usefulness and efficiency of the citizens, on which the government of society depends. Morrison v. Smith-Pocahontas Coal Co., 88 W.Va. 158, 106 S.E. 448; 47 A. J. 300.

The constitution and laws indicate a long-standing intent that the state's system of public instruction shall be operated for the benefit of those who reside within its borders, and, through them, for the benefit of the state itself. Const. of Wyo. Art. 1, Sec. 23; Art. VII, Sec. 9; Art. XXI, Sec. 28; Sec. 67-101 W. C. S. 1945.

For the respondent there was a brief by Norman B. Gray, Attorney General, John S. Miller, Deputy Attorney General and Frank M. Gallivan, Ass't. Attorney General all of Cheyenne, Wyoming, and oral argument by Mr. Miller.

POINTS FOF COUNSEL FOR PETITIONER

It was not the intent of Congress that the appropriations made under the provisions of the Smith-Hughes Act should constitute gifts or donations to the various states, but that it was the intent of Congress that such appropriations were to be used in cooperation with State funds for the promotion of the objects provided for in said act.

Under the provisions of the Smith-Hughes Act the State Auditor is not vested with any discretionary power as to the disbursement of the Federal funds allotted to the states. That discretion devolves upon the State Boards of Education. Under the Statutes of the State of Wyoming, the State Treasurer cannot disburse the funds without a warrant drawn upon him by the State Auditor. The drawing of this warrant by the State Auditor is a ministerial act, which can be compelled by mandamus.

Wide latitude was granted to the United States Office of Education and to the State Board of Education to determine what constitutes vocational education. Policies with regard to such could be determined from time to time, and such policies could be revised or amended from time to time to meet changing conditions and the development of new problems.

The State Auditor, in the discharge of his duties, exercises quasi-judicial discretion. The rule appears to be that the courts exercise extreme caution in substituting their discretion in lieu of the discretion exercised by a board or commission acting within the confines of the powers and duties delegated to such board or commission. State ex rel Jeffrey v. Burdick, 3 Wyo. 588, 26 P. 146.

The court would be warranted in setting aside the action of a Board only where a clear abuse of discretion is shown amounting practically to fraud. C. B. & Q. R. R. Co. v. Byron School District No. 1, 37 Wyo. 259, 260 P. 537.

The proposition is well settled that when an instrumentality of government is vested with discretion and such discretion is exercised in good faith and in a lawful manner, it should not be interfered with or controlled by the courts. Greco v. Roper, et al (Ohio) 61 N.E.2d 307; State ex rel State Highway Commission of Montana, et al v. District Court of First Judicial District, 81 P.2d 347 (Mont.); State ex rel North American Life Ins. Co. of Chicago v. District Court of Tenth Judicial District, 37 P.2d 329 (Mont.); Nelson v. Dean, 168 P.2d 16 (Calif.); State ex rel Taylor v. Missouri P. Railroad Co. (Kan.) 92 P. 606.

The legislature cannot levy a tax or make an appropriation, except only for public purposes. State v. Carter, 30 Wyo. 22, 215 P. 477. Every expenditure made from state funds must be for a public purpose, and to promote the public welfare. The Smith-Hughes Act (Section 21) provides that the controlling purpose of trade, home economics, and industrial education shall be to fit for useful employment.

Under the provisions of the Smith-Hughes Act, federal funds are matched with state funds for the payment of salaries of teachers, supervisors, etc., and such funds are used to reimburse schools and others conducting classes in vocational education for expenditures theretofore made to such teachers and supervisors. Section 24 of the Smith-Hughes Act provides, in part, as follows:

"The moneys so received by the custodian for vocational education for any State shall be paid out on requisition of the State Board as reimbursement for expenditures already incurred to such schools as are approved by said State Board and are entitled to receive such moneys under the provisions of this chapter."

The training program involved in this cause is included in the Budget Estimate, the Appropriation Act, and the Revised Estimates approved by the Governor on March 19, 1945, for the following reasons:

The Budget Estimate does not restrict to whom reimbursements may be made, no restrictions are contained in the Appropriation Act as to how the money shall be expended, nor does the Revised Estimate, approved by the Governor, contain any restrictions.

It was the intent of the Legislature in making the appropriation that such funds could be expended for the purpose of cooperating with the Federal Government in providing vocational education, and that what constituted vocational education was left to the determination of the State Board of Education and the United States Office of Education.

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

OPINION

RINER, Chief Justice.

This is an application by the State of Wyoming on the relation of R R. Crow & Co., hereinafter designated the "petitioner," for a writ of mandamus to be issued in the exercise of this court's original jurisdiction first brought against John J. McIntyre as Auditor of said State. The petition was filed December 21, 1946. Since that date the term of office of Mr. McIntyre has expired and Mr. Everett T. Copenhaver was elected to hold the office in his stead. Copenhaver is now the duly qualified and acting official. He will be usually referred to subsequently as the "Auditor" or as the "respondent." The suit was instituted to obtain this writ to compel the Auditor to...