State v. Kenney

• Decision Date: 28 March 1891
• Citation: 26 P. 383,10 Mont. 488
• Parties: STATE ex rel. JOURNAL PUB. CO. v. KENNEY, Auditor.
• Court: Montana Supreme Court

26 P. 383

10 Mont. 488

STATE ex rel. JOURNAL PUB. CO. v. KENNEY, Auditor.

Supreme Court of Montana

March 28, 1891

Petition for mandamus.

McCutcheon & McIntire, for petitioner.

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

BLAKE C.J.

The affidavit of the relator states the following facts: The Journal Publishing Company is a corporation, and entered March 11, 1889, into a contract with the territory of Montana to do all the printing thereof, pursuant to law. The state under this contract, is indebted to the relator in the sum of $7,909.93, for printing for the territory and state. The accounts therefor were presented by the relator to the state board of examiners, and audited, approved, and allowed in said sum, and was by it certified and presented to the second legislative assembly. Said legislative assembly, by an act entitled "An act to provide for the payment of all claims against the state approved by the state board of examiners, and reported to the legislative assembly." approved March 7, 1891, appropriated out of the funds of the state the sum of $7,909.93 to pay this claim. A demand for the relator was made March 14, 1891, of the respondent, that as state auditor he should draw his warrant on the state treasurer for the amount of said claim. The respondent refused to draw any warrant therefor. The return does not deny any of the foregoing allegations, but contains the following averments: The assessed value of all the property within the state for the last fiscal year was $112,000,000. The revenue of the state thus far for the fiscal year ending November 30, 1891, amounts to $363,332.80. The revenue of the state from a license and property tax for the remainder of this fiscal year will not exceed $70,000. The fiscal year of 1891 commenced December 1, 1890, and ends November 30, 1891. The taxes levied for this fiscal year, and not paid in by the county treasurers, and received by the state treasurer until the commencement of the fiscal year 1892, are carried upon the books of his office for the purpose of paying off all indebtedness for which appropriations have been made by the legislative assembly for the expenditures incurred in the fiscal year ending November 30, 1892; and the sums received after December 1, 1891, by the state treasurer, are credited upon his books as funds of the fiscal year 1892, and not for the year 1891. Between February 18, 1891, and March 7, 1891 the legislative assembly passed many appropriation bills which obtained the approval of the governor in the order which is specified. The answer sets forth particularly the laws which are referred to, the dates of their approval, and the amount appropriated thereby, which exceeds $640.000 for the fiscal year ending November 30, 1891. The appropriation bills which became laws before the act, supra, which includes the claim of the relator, appropriated for the fiscal year ending November 30, 1891, out of any moneys in the state treasury not otherwise appropriated, the sum of $558,412.36. The state treasurer has set apart for the purposes which are mentioned in the statutes, respectively, of the moneys so received, the entire sum in the treasury. And the answer further alleges: "That at the present time there is not any money in the state treasury that is available or applicable to the payment of the claim of this relator, nor subject to any warrant that might be drawn in favor of this relator for said claim. That since the 28th day of February, 1891, this resistant has drawn certain warrants upon the state treasury, and which have been paid in accordance with the provisions of the general laws, and in pursuance of the appropriations made in the acts last mentioned, in the total sum of $95,207.30. That there now is a balance in the state treasury of $268,125, so set apart as aforesaid. That this resistant has refused to draw his warrant in favor of the relator for the claim so presented, upon the ground that the last legislative assembly of the state of Montana have authorized expenditures and made appropriations for the fiscal year 1891, prior to the passage of [the act, supra,] hereinbefore referred to, which exceed the total tax then and now provided by law, and applicable to such appropriation and expenditure, and which exceed, in the aggregate of such total tax, the sum of $100,000." The relator filed a demurrer to the answer, upon the ground that the facts therein stated did not constitute a defense. The act supra, which is referred to in the affidavit of the relator, contains the following provisions: "Section 1. That the sum of $44,648.19 be, and the same is hereby, appropriated out of any moneys in the treasury, not otherwise appropriated, for the payment of claims against the state, approved by the state board of examiners, reported to the second legislative assembly. Sec. 2. That, in payment of said claims, the auditor is hereby directed to draw his warrant upon the state treasury in favor of the following persons, and for the following amounts." In this list the relator is named, and the amount is the same as that which is specified in the affidavit. The statute provides that "the 1st day of December in each and every year shall be the end of the fiscal year for territorial [state] purposes." Comp. St. div. 5, § 140. It is disclosed by the answer and admitted by the relator that the second legislative assembly appropriated for the fiscal year of 1891 the sum of $640,000, and that a large part thereof, the sum of $558,412.36, was embraced in laws which were approved prior to the act supra, under which the relator asserts his rights in this proceeding. The revenue, which has been received during this fiscal year, and which, it is estimated, will be received during the remainder thereof, amounts to the sum of $433,332.80. The deficit seems to be the sum of $217,000 or thereabouts. The respondent for this reason refuses to draw his warrant in behalf of the relator, and maintains that said legislative assembly has appropriated an amount in excess of the money in the treasury of the state, or which could be made available therefor during the fiscal year of 1891. The following section of the constitution is cited to uphold his action: "No appropriation shall be made or any expenditures authorized by the legislative assembly whereby the expenditures of the state during any fiscal year shall exceed the total tax then provided for by law, and applicable to such appropriation or expenditure, unless the legislative assembly making such appropriation shall provide for levying a

sufficient tax, not exceeding the rate allowed in section nine (9) of this article, to pay such appropriations or expenditures within such fiscal year. *** No appropriation of public moneys shall be made for a longer term than two years." Article 12, § 12. The opinion of the justices of the supreme court of the state of Colorado in Re Appropriation by General Assembly, 13 Colo. 316, 22 P 464, considers similar constitutional provisions, and says: "It will be observed that appropriations and expenditures for ordinary purposes are legitimate so long as they do not exceed the total tax already provided by law, and applicable for their payment, or which may, within constitutional limits, be so provided for their payment within the proper fiscal year. *** What we have said of the legislative department in respect to making appropriations or authorizing expenditures in excess of constitutional authority applies with equal force to the executive department in recognizing or dealing with legislation affecting the public revenue. If legislative acts, making appropriations in excess of constitutional limits, have unfortunately received the governor's signature instead of his veto, he should nevertheless withhold his approval from any and all vouchers relating to such unconstitutional appropriations. So, also, the auditor should refuse to draw any warrant therefor, and the treasurer should decline to make payment thereon. In reference to matters arising under enactments clearly unconstitutional, the unauthorized act of one government official is no justification or excuse for a similar act by another." It is obvious that the responsibility of the legislative assembly is of the utmost gravity. The ninth section, supra, declares that the rate of taxation of real and...