State v. Howard

• Decision Date: 12 November 1909
• Citation: 83 Vt. 6,74 A. 392
• Parties: STATE v. HOWARD.
• Court: Vermont Supreme Court

74 A. 392

83 Vt. 6

STATE

v. HOWARD.

Supreme Court of Vermont. Orleans.

Nov. 12, 1909.

[Copyrighted material omitted.]

Exceptions from Orleans County Court; Willard W. Miles, Judge.

Suit by the State against George T. Howard in general and special assumpsit. Verdict for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Clarke C. Fitts, Atty. Gen., and E. A. Cook, State's Atty., for the State. Dunnett & Slack, Young & Young, and W. B. C. Stiekney, for defendant.

MUNSON, J. The state prosecutes this suit to recover sums claimed to have been illegally charged by the defendant for his services and expenses as railroad commissioner. The case is here upon exceptions taken by both parties. The question presented is regarding the effect of an allowance of the charges by the auditor of accounts. The defendant claims that a determination of the auditor is in the nature of a judgment, and conclusive of the rights of the parties. The state argues that the auditor is not a judicial officer, but merely an agent with limited powers, whose unauthorized act has no binding effect.

The statute provides, with certain exceptions: That the treasurer shall not disburse moneys except upon orders drawn by the auditor in pursuance of law; that the auditor shall examine and adjust all claims against the state, not otherwise specially provided for, in favor of persons acting under the authority of the state or of the executive, and allow such sums as he finds justly due, and draw orders on the treasurer therefor; that claimants for compensation shall furnish him, before payment is made, sworn itemized statements of the time spent, the date thereof, the services performed, and items of expense incurred, accompanied by receipted bills as vouchers, for all expenses other than certain minor ones specified; that he may examine a claimant or other person under oath, and shall require proof of a claim equivalent to testimony upon oath, or a certificate of some commissioned officer of the state who is officially cognizant of the claim; that he shall allow no claim not based on law, nor draw an order except in pursuance of law; that he shall make a record of claims presented, and shall at the request of the claimant, upon the disallowance of a claim in whole or in part, refer such claim to the General Assembly, and if the claimant neglects to apply to the General Assembly, or the General Assembly acts upon the claim by allowing it in whole or in part or rejecting it, the claim shall be treated as adjudicated; that he shall make a biennial report of the revenues and disbursements of each fiscal year, showing by what officer and on what account they were received or made; and that the claims committee of the General Assembly shall examine this report in order to correct allowances which appear excessive, and shall examine his record of claims presented and his proceedings thereon, and make report to the General Assembly. V. S. 273, 306; Acts 1896, p. 91, No. 123, § 6; Acts 1904, p. 223, No. 171; V. S. 307, 327, 308, 318, 320; P. S. 380, 414, 412, 416, 435, 417, 428, 430.

The only cases in this state to which our attention has been directed as helpful in the interpretation of these provisions are: State v. Bates, 36 Vt. 387, 398; Peck v. Powell, 62 Vt. 296, 19 Atl. 227; Fay v. Barber, 72 Vt. 55, 47 Atl. 180; Clement v. Graham, 78 Vt. 290, 319, 63 Atl. 146. The first of these was a suit on the bond of a defaulting state treasurer, and the sureties pleaded in bar that, on the annual settlements made with the treasurer by the auditor for the two preceding years, it was found and officially reported by the auditor that the treasurer bad fully accounted for all the moneys he had received, and that they signed the bond sued upon in reliance upon the correctness of said reports, and the court held the plea defective in that it did not set up any want of good faith or of due care on the part of the auditor in making the settlements. In Peck v. Powell, the petitioner, as judge of the city court of Burlington, claimed certain fees which the petitioner, as auditor, refused to allow him, on the ground that he was not within the terms of the statute, and the court held the auditor's construction of the statute erroneous and ordered that a mandamus issue. Fay v. Barber, was a case of the same nature, relating to the fees which justices of the peace were entitled to receive under various provisions of the criminal law. In Clement v. Graham the court recognized the office of auditor of accounts as a branch of the executive department of the state government. The most that the state can claim from the three cases last named is that the auditor is an executive officer, and that his action upon claims of a certain class, different from any in question here, may be reviewed on petition for mandamus. It is claimed that State v. Bates holds, in effect that a finding of the auditor within the scope of his official duty is not a judicial determination. The real scope of the decision is that an auditor's report that the State Treasurer has accounted for all his receipts, based upon an examination of his accounts made in good faith and without negligence, affords no defense to one who becomes his surety for a subsequent term in reliance upon the fact that his previous official conduct has been thus passed upon. It is evident from this brief review that the statutory provisions in question must be construed without much aid from our previous decisions.

The provision that the legislative committee on claims shall examine the auditor's report in order to correct allowances which appear excessive is referred to by the state as a plain indication that the findings of the auditor are not to be regarded as final. On the other hand, the provision that a claim referred to the General Assembly at the request of a dissatisfied claimant shall be treated as "adjudicated," if the claimant neglects to apply to the General Assembly, is referred to by the defendant as showing beyond question that the decisions of the auditor have the conclusiveness of a judgment. While arguments worthy of consideration may be based upon these and other particular provisions and expressions of the statute, it is evident that our disposition of the questions presented must rest largely upon a comprehensive view of the statute as a whole and the general principles applicable to the subject. The designation of the auditor as an executive officer does not carry us far on our inquiry. The duties of the head of an executive department are seldom confined to those properly classed as "executive." The conflict of argument on this subject is apparently due in part to a failure to recognize the fact that the authorized acts of an auditing officer may differ in character and be subject to different rules. His statutory duty in the particular instance may be ministerial or discretionary, and the effect to be given his action will depend upon its classification in this respect. A "ministerial duty" is one regarding which nothing is left to discretion— a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist. Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437. If the duty is one that requires the exercise of judgment in its performance, it is not ministerial, but discretionary. A discretionary duty may be executive or judicial, according to the nature of the subject-matter. The ministerial acts of a public official, whatever the classification of his office, are subject to the control and review of a court of competent jurisdiction; but an officer who is intrusted with a duty which requires the exercise of his judgment and discretion is entitled to proceed therein without judicial interference, and may render a decision that will be final and conclusive.

The distinction drawn by the definition above given may be made more specific by a reference to some of the cases. A decision which rests solely upon the construction of a statute does not involve that exercise of judgment which the law contemplates, as may be seen from the Peck and Fay Cases already cited. See, also, the remarks of Chief Justice Taney in Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559, 609. If the duty is one that necessarily involves an inquiry of fact and an exercise of judgment upon the case presented, it is not ministerial, and the disposition made of it will be binding upon the courts. Decatur v. Paulding; United States v. Seaman, 17 How. 225, 15 L. Ed. 226; Wailes v. Smith, 76 Md. 469, 25 Atl. 922; Henkel v. Willard, 97 Md. 24, 54 Atl. 657. The inquiry of fact referred to need not necessarily be a formal inquiry in the particular instance, if the official is already possessed of information upon the subject, for he may act upon his own knowledge, as well as upon information derived from others. See United States v. Barlow, 132 U. S. 271, 10 Sup. Ct. 77, 33 L. Ed. 346. The ascertainment of a fact which raises the duty, or is collateral to its performance, is not such an exercise of judgment as will deprive the duty of its ministerial character. Betts v. Dimon, 3 Conn. 107; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65. If the duty imposed is itself definite and precise, the fact that the official is permitted a choice of methods or instrumentalities in discharging it will not control the classification. McCord v. High, 24 Iowa, 336; Hicks v. Dorn, 42 N. Y. 47.

Most of the cases cited in support of the above rules were cases in which it was sought to control the action of an official by mandamus or injunction. Others were cases in which it was sought to hold an official liable in damages for action taken. To the first class may be added Richards v. Wheeler, 2 Aikens, 369, a case in which this court considered the grounds and extent of its right to control the action of an inferior tribunal. Cases of...