State v. Humphrey

• Citation: 47 Kan. 561,28 P. 722
• Parties: THE STATE OF KANSAS, on the relation of W. W. Martin, v. LYMAN U. HUMPHREY, as Governor of the State of Kansas, et al
• Decision Date: 09 January 1892
• Court: Kansas Supreme Court

28 P. 722

47 Kan. 561

THE STATE OF KANSAS, on the relation of W. W. Martin, v. LYMAN U. HUMPHREY, as Governor of the State of Kansas, et al

Supreme Court of Kansas

January 9, 1892

Decided January, 1892

Original Proceeding in Mandamus.

THE facts sufficiently appear in the opinion herein, filed January 9, 1892.

Writ denied.

P. J Coston, and Curtis & Safford, for plaintiff.

John N Ives, attorney general, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 11th day of March, 1891, W. W. Martin was appointed by Hon. Lyman U. Humphrey, as governor of the state and by the state senate, then assembled, confirmed as agent of the state, to prosecute the claims of the state against the United States, pursuant to an act of the legislature of the state, approved March 3, 1877, chapter 176, Laws of 1877, (PP 5932-5935, Gen. Stat. of 1889.) After his confirmation, W. W. Martin was commissioned by the governor as agent. Subsequently, and before the commencement of this action, he requested the governor, the auditor and the attorney general to enter into an agreement with him as to what his compensation as such agent should be under the provisions of §§ 3 and 4, chapter 176, Laws of 1877, (PP 5934 and 5935, Gen. Stat. of 1889.) The officers refused to enter into any agreement or contract. This is an original proceeding in this court to compel the governor, the auditor and the attorney general of the state to enter into a contract with W. W. Martin, as requested. At the session of the legislature of 1891, chapter 182 of the Laws of 1872, relating to the salaries of state officers, judges, and officers of the legislature, was repealed. An attempt was also made to repeal §§ 3 and 4, chapter 176, Laws of 1877, PP 5934 and 5935 of the Gen. Stat. of 1889. (Laws of 1891, ch. 181, § 17.) The title of said chapter 181 reads: "An act to establish the salaries of state officers, their assistants and clerks, judges, officers and employes of the legislature." The title is very similar to the title of an act of the legislature approved March 2, 1868, and amended by chapter 182, Laws of 1872. The contention is, that there is nothing in the title of chapter 181, Laws of 1891, that refers in any way to the state agent, or to his salary or compensation, and therefore that the part of 17 of chapter 181, Laws of 1891, which attempts to repeal PP 5934 and 5935, Gen. Stat. of 1889, is unconstitutional. The following authorities are cited: The State v. Barrett, 27 Kan. 213; Harland v. Territory of Washington, 3 Wash. Ter. Rep. 131, 13 P. 453. We do not think it necessary to pass upon the constitutionality of the part of § 17, chapter 181, Laws of 1891, referred to.

At the session of the legislature for 1879, the following statute was passed:

"Every officer or agent of the state who shall be empowered to expend any public moneys, or to direct such expenditures, is hereby prohibited from making any contract for the erection or repair of any building, or for any other purpose, whereby the expenditure of any greater sum of money shall be contemplated, agreed to, or required, than is expressly authorized by law." (Laws of 1879, ch. 166, § 132, March 20th; Gen. Stat. of 1889, P 6674.)

Subsequently the legislature adopted chapter 103, Laws of 1886. The title is as follows: "An act relating to state officers and agents, and defining certain crimes and providing punishment therefor." Section 1 reads:

"That any officer or agent of the state who shall be empowered to expend any public moneys, or to direct such expenditures, is hereby prohibited from making any contract for the erection or repair of any building, or for any other purpose, whereby the expenditure of any greater sum of money shall be contemplated, agreed to, or required, than is expressly authorized by law; and any officer or agent of the state violating this law shall be deemed guilty of embezzlement of the amount in excess of that expressly authorized by law, and upon conviction shall be punished by confinement and hard labor not exceeding five years, or in the county jail not less than six months." (Gen. Stat. of 1889, P 6675.)

No appropriation was made by the legislature in 1891 to pay for the services of the state agent. The appropriations heretofore made for such an agent have been exhausted. If the agent is to receive any compensation, it must be paid by the treasurer upon warrants of the auditor....