State Ex Rel. Stephens v. State Corp.. Comm'n

• Decision Date: 21 November 1918
• Docket Number: No. 2235.,2235.
• Citation: 25 N.M. 32,176 P. 866
• Court: New Mexico Supreme Court
• Parties: STATE ex rel. STEPHENSv.STATE CORPORATION COMMISSION et al.

25 N.M. 32

176 P. 866

STATE ex rel. STEPHENS

v.STATE CORPORATION COMMISSION et al.

No. 2235.

Supreme Court of New Mexico.

Nov. 21, 1918.

Syllabus by the Court.

The refusal of the State Corporation Commission to draw a voucher for the salary of an employé of the Commission entitles him to resort to the remedy of mandamus, as the ordinary course of law does not afford a plain, speedy, and adequate remedy.

Where a legislative appropriation of money is made for contingent expenses of the State Corporation Commission, out of which fund the salary of an assistant rate clerk is properly payable, and suit is filed in mandamus to compel the issuance to such clerk of a salary voucher, and after service on such Commission of the alternative writ such Commission purchases postage stamps for use during the next ensuing fiscal year, and thus expends all the money remaining in such fund, the trial court properly required the issuance of a voucher payable out of the contingent expense fund for the next fiscal year to the extent that such fund was benefited by the use of funds of the previous year out of which such payment should have been made.

Public officers are liable in costs for any duty they are required by law to perform.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Mandamus by the State of New Mexico, on relation of Henry F. Stephens, against the State Corporation Commission, Hugh S. Williams and another, individual members thereof. Judgment for plaintiff, and defendants appeal. Affirmed.

Where, after service on state corporation commission of clerk's alternative writ of mandamus to compel its issuance of salary voucher the commission expended all of fund from which salary was payable it was properly required to issue a voucher against contingent expense fund for next fiscal year to extent of its benefit by use of funds of previous year, in view of Laws 1915, c. 86, § 5.

H. L. Patton, Atty. Gen., and H. S. Clancy, of Santa Fé, for appellants.

Francis C. Wilson and Daniel K. Sadler, both of Santa Fé, for appellee.

ROBERTS, J.

This suit was instituted by the state of New Mexico, at the relation of Henry F. Stephens, by petition in mandamus, praying that the appellants be directed by peremptory writ to issue to him a salary voucher in the sum of $150, covering salary for the month of October, 1917. Upon the filing of the petition the court below directed issuance of an alternative writ, which was issued and served on the respondents on November 27, 1917. The respondents in their return to the alternative writ denied that it was their duty to issue to relator a voucher for salary covering the month of October, 1917, and alleged that the services of said relator had been terminated by said State Corporation Commission on September 30, 1917; and, further, by way of amendment, and as a reason urged by them against the granting of a peremptory writ, alleged that such a writ should not be issued because it would prove unavailing, in that the contingent expense account, out of which relator's salary was payable, had been exhausted, having been drawn to balance by midnight of November 30th, the end of the fifth fiscal year, following service upon them of the alternative writ on November 27th.

At the trial, however, it was proven that the action relied upon to terminate the employment of relator as of September 30, 1917, was concurred in by only one of the two commissioners present at the meeting and within the state of New Mexico at such time. It appeared that at such time, and during all of the month of October, 1917, Commissioner Groves was absent from the state of New Mexico, and was sojourning at San Antonio, in the state of Texas; that Commissioner Williams favored the termination of relator's employment as of September 30, 1917, and Commissioner Montoya opposed such action. Commissioner Williams, relying upon a motion signed by Commissioner Groves while sojourning in Texas, favoring such action, as chairman of the Commission declared the motion carried. Furthermore, at the trial a power of attorney from Commissioner Groves to Commissioner Williams was offered in evidence as showing authority in Commissioner Williams to cast the vote of Commissioner Groves at such meeting in favor of the action sought to be taken. In addition, as a witness, Commissioner Groves at the trial declared that he at such time affirmed the action that Commissioner Williams had attempted to take by virtue of the authority contained in said power of attorney.

At the trial, however, it was proven that between the time of service upon them of the alternative writ and midnight of November 30th, the close of the fifth fiscal year, the respondents had drawn upon said contingent expense account in an amount in excess of $1,000, and that at the close of the fifth fiscal year, on, to wit, November 30th, the last day thereof, there still being a balance to the credit of the said contingent expense account of approximately $170, according to the books of the State Auditor, the respondents used said balance for the purchase of postage stamps, which admittedly were for use during the sixth fiscal year.

It was further shown that the Commission had issued vouchers against the contingent expense fund, for moneys which should have been paid out of other funds, and that there was a large balance in such other funds.

On February 8, 1918, the court rendered judgment directing the issuance of a peremptory writ commanding the respondents to issue to relator a voucher covering salary for October, 1917, as prayed, and made finding of fact and stated conclusions of law which fully support the judgment. From this judgment an appeal was allowed, without supersedeas.

Appellee, having presented his voucher to the State Auditor for the issuance of a warrant for presentation to the State Treasurer for payment, and the State Auditor having refused to issue a warrant, upon the ground that the contingent expense fund for the fifth fiscal year appeared upon his books as drawn to balance, filed his motion, praying that said appellants be compelled to amend their return by designating said voucher as payable out of the contingent expense account of said Corporation Commission for the sixth fiscal year instead of the fifth. The right to such relief was based upon the fact shown by the record that he had traced into the contingent expense fund for such year more than sufficient funds of the fifth fiscal year, belonging to such fund, to pay such claim. The court, after a hearing, entered an order directing appellants to amend their return as prayed. From such order appellants appealed, and were allowed supersedeas.

Appellee has filed a motion to dismiss the appeals upon the ground that double appeals have been joined. This question, in view of our decision upon the merits, need not be considered.

[1] As to the merits: In their brief in this court appellants do not contend that appellee was discharged as assistant rate clerk of the Corporation Commission by the order made by the Commission upon the vote of Commissioner Groves under the power of attorney, said Groves being absent at the time, sojourning in the state of Texas. This being true, this question may be laid aside, and we will assume, as appellants apparently have, that Stephens was in the employ of the Corporation Commission until November 1, 1917; that he was entitled to salary at the rate of $150 per month for services rendered during the month of October; that the Commission refused to draw a voucher for such salary, by which only he could procure a warrant from the State Auditor.

The first point arising for consideration, therefore, is as to whether or not mandamus was the appropriate remedy to compel the issuance to relator by the Corporation Commission of the salary voucher in payment for such services for the month of October, 1917. In 26 Cyc. 171, it is said:

“The remedy which will supersede mandamus may be described in general terms as one competent to afford relief upon the very subject-matter in question, and which is equally convenient, beneficial, and effectual. *** It has been held that mandamus will lie when other existing remedies are tedious, are not sufficiently speedy, or in case they have become obsolete, or are circuitous.”

A similar question was involved in the case of State v. McQuade, 36 Wash. 579, 79 Pac. 207. The respondents, as directors of a school district, refused to issue to relator a warrant covering his salary for one month. The lower court dismissed the petition. The Supreme Court in the course of its opinion said:

“After the filing of the amended return a trial of the issues was entered upon, at which the appellant offered himself and one W. E. Holland as witnesses; their evidence tending to support the right of the appellant to the relief demanded by him. The court, however, after the appellant had testified, and in the course of the examination of Mr. Holland, on motion of the respondents, dismissed the proceedings on the ground that it was not a case in which mandamus would lie; remarking, while giving the reasons for his conclusion, that, if the rule were otherwise, he did not think the evidence offered made a case entitling the appellant to a writ.

On both questions we think the learned trial judge was in error. By virtue of the statute the writ of mandamus may issue to any inferior tribunal, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; and clearly it was the duty of this school board to draw a warrant for the appellant's salary as a teacher, if any such salary was due him. As his contract with the district provided that he was to be paid by a warrant drawn by the school board on the county treasurer, in no other way was he entitled to receive payment for his services; and, unless he can force the board to act, it is difficult to see how he is...