State v. Hickman

• Citation: 29 P. 92,11 Mont. 541
• Parties: STATE ex rel. PALMER v. HICKMAN, State Treasurer.
• Decision Date: 08 February 1892
• Court: United States State Supreme Court of Montana

29 P. 92

11 Mont. 541

STATE ex rel. PALMER v. HICKMAN, State Treasurer.

Supreme Court of Montana

February 8, 1892

Original application for writ of mandate on relation of H. B. Palmer against R. O. Hickman, state treasurer. Motion to strike out portions of the answer sustained.

Cullen Sanders & Shelton, for petitioner.

Henri J. Haskell, Atty. Gen., for respondent.

BLAKE C.J.

The affidavit of the applicant for this writ of mandate says that an act was passed March 7, 1891, by the legislative assembly of the state, which appropriated the sum of $44,648.19, out of all moneys in the treasury not otherwise appropriated, for the relief of persons named therein. That there was appropriated thereby for the Journal Publishing Company the sum of $7,909.93 for its claim for services. That the state auditor drew, March 28, 1891, the following warrant on the state treasurer, under said act: "State of Montana. Helena, Mont. Mch. 28/91. State Warrant. The treasurer will pay to Journal Publishing company, or order, seven thousand nine hundred and nine & 93/100 dollars, for printing done and furnished to the territory and state of Montana, paid from appropriation H. B. 141, per decision of supreme court rendered Mch. 28/91, out of any moneys in the treasury not otherwise appropriated. E.A. KENNEY, State Auditor. Presented for payment and registered ___, 1891. ___, State Treasurer ($7,909.93.)" That this warrant was then delivered to the Journal Publishing Company, and by it presented to the said treasurer. That said warrant was then registered by the state treasurer, and not paid, for want of funds. That there were, December 16, 1891, in the treasury of the state, funds sufficient to pay said warrant. That the affiant was then the owner and holder of said warrant; and that the said treasurer offered to pay the affiant the sum of $7,909.93, the principal sum in the warrant, and refused to pay any interest thereon. The prayer is for a writ of mandate commanding the said treasurer to pay the interest on said warrant from March 28, 1891, at the rate of 6 per cent. per annum. The answer of said treasurer, among other averments, says that there have not been at any time any moneys in the said treasury which have been set apart or appropriated to pay the interest on said warrant; that respondent denies that the last legislature set apart or appropriated any sum or sums of money to pay the interest on the warrant owned by this relator, or any other person, or at all; that respondent further says that said claim so presented by this relator for interest has not been presented to the state board of examiners of said state for approval, and has not been audited by said board. The applicant filed a motion to strike from the answer the last two paragraphs, which are quoted at length.

Disregarding some questions of practice which have been urged by counsel we are called upon to consider and decide the leading and important inquiries: Is the relator entitled to recover interest upon his warrant without an express appropriation for this purpose by the legisative assembly? Should this claim for interest be submitted to the state board of examiners? It will be necessary and proper to review succinctly the legislation of the territory of Montana upon this subject, and observe carefully the conditions which prevailed when the framers of the constitution assembled. The first legislative assembly convened December 12, 1864; and an act "to provide for the expenses of Montana territory" was approved December 26, 1864. The eighth section was as follows: "That all territorial warrants issued by the proper authorities of the territory shall draw interest at the rate of ten per cent. per annum, from and after the date of their presentation, until there are funds to pay said warrants in the hands of the treasurer." These provisions were amended from time to time, but interest was always payable on territorial warrants which were not paid upon the date of their presentation. When the constitutional convention met in July, 1889, the statutes relating to this subject were in the following form: "That all territorial warrants issued by the proper authorities of this territory after the 1st day of March, A. D. 1881, shall draw interest at the rate of six per centum per annum from and after the date of their presentation until there are funds to pay said warrants in the hands of the territorial treasurer." Section 1129, Comp. St. 5th div. "The treasurer shall quarterly post upon the door of his office, and publish in some newspaper published at the seat of government, a list of all warrants that he may have funds in the treasury to redeem or pay, the payment of which has not been demanded during the quarter last, and from the date of such notice the interest on all such warrants thus posted shall cease; but the treasurer shall hold in readiness such moneys to pay such warrants upon presentation." Section 130, Id. "An act to provide for the funding of the debt of Montana territory" was passed December 3, 1867, and the first section authorizes the treasurer to issue bonds for "all territorial warrants outstanding and unpaid" at a certain time. Statutes of like import were enacted in 1872 and 1879. In July, 1889, there was no territorial debt of this character. The financial policy of the government of the territory, which had been established at an early period of its history, was never altered in substance, and was familiar to the makers of the constitution. What was their action with reference to these matters? They ordained that "all laws enacted by the legislative assembly of the territory of Montana, and in force at the time the state shall be admitted into the Union, and not inconsistent with this constitution or laws of the United States of America, shall be and remain in full force as the laws of the state until altered or repealed, or until they expire by their own limitation: provided, that whenever, in said laws, the words, "territory," "Montana territory," or "territory of Montana," occur, the words "state" or "state of Montana" shall be appropriately substituted and read therefor." Const. art. 20, § 1. Is there any language in the constitution of the state which is inconsistent with the foregoing sections of the compiled Statutes? The laws supra were enacted by the legislative assembly of the territory, and were in force when the state was admitted into the Union, and "remain in full force," if we shall determine this inquiry in the negative: What are provisions of the constitution relating to the indebtedness of the territory or state of Montana?

The following sections, concerning the requirements of an appropriation for the payment of interest on the public debt, should be examined: "The general appropriation bills shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive, and judicial departments of the state, interest on the public debt. ***" Article 5, § 33. "No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt." Article 5, § 34. We will consider in this connection other provisions: "All taxes levied for state purposes shall be paid into the state treasury, and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law." Article 12, § 10. Many of the rules of construction are applicable to statutes and the constitution. Mr. Endlich, in his work on the Interpretation of Statutes, says: "One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words, beyond, the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness." Section 113, and cases cited. The same author also writes: "As, in statutes, the presumption against an intention to change the existing law beyond the specific purpose of the enactment may create numerous apparent exceptions from the general language employed, so, in the construction of a constitutional provision, a due regard for the existing-whether statutory or common-law may produce a similar result. *** In such case, no intention to abrogate previously existing laws in general can be presumed, in the absence of expression to that effect. It is therefore a sound rule of constitutional interpretation that a constitution is to be construed with reference to previous legislation." Section 520, and case cited. We are therefore aided in the interpretation of these sections by resorting to the statutes of the territory governing kindred matters. It can be fairly presumed, in the absence of plain and direct language to the contrary in the constitution, that the uniform policy of the territorial government was to be continued under the organization of the state. We do not rely in this discussion upon mere presumptions. We have already referred to the solemn declaration of the constitution that the legislation of the territory, with definite exceptions, was to be carried into effect. Some of these statutes will be noticed.

The first legislative assembly, in the act, supra, approved December 26, 1864, provides "that the auditor of the territory is hereby empowered to issue territorial warrants drawn upon the treasury of the territory, in favor of all persons to whom the legislative assembly of the territory may direct." St. 1st Sess. p....