State v. Kenney

• Decision Date: 13 March 1891
• Citation: 26 P. 197,10 Mont. 485
• Parties: STATE ex rel. WADE v. KENNEY, State Auditor.
• Court: Montana Supreme Court

26 P. 197

10 Mont. 485

STATE ex rel. WADE v. KENNEY, State Auditor.

Supreme Court of Montana

March 13, 1891

Application for peremptory writ of mandate.

B. P Carpenter and F. W. Cole, for petitioner.

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

BLAKE C.J.

The affidavit of the relator contains the following allegations "That he was duly appointed, in the year 1889, one of the Code commissioners under an act of the legislative assembly of the territory (now state) of Montana, entitled 'An act to provide for the appointment of a commission to codify the criminal and civil law and procedure, and to revise, compile, and arrange the statute laws of Montana,' approved March 14, 1889. That ever since such appointment he has acted as such commissioner in the preparation of the four Codes provided for in said act. That said Codes have been prepared and filed, as required by said act and the act of the legislative assembly of the state of Montana amendatory of said act, approved March 9, 1891. That the Civil and Penal Codes and the Code of Civil Procedure were prepared and filed, and a warrant drawn by the auditor in favor of this affiant and each of the Code commissioners and paid out of the state treasury. That the Political Code was filed, as required by law, on the 10th day of March 1891. That affiant, on the 10th day of March, 1891, after filing the said Political Code with the secretary of state demanded of said E. A. Kenney, the state auditor of the state of Montana, a warrant on the state treasurer of the state of Montana, for the sum of one thousand dollars, which said sum was due this affiant for his salary and compensation in the preparation of said Political Code. That the said E. A. Kenney, state auditor as aforesaid, refused, and still refuses, to give affiant a warrant on the state treasurer for said amount, or any other amount." There are other allegations, which do not become material to this controversy, and the prayer is for a peremptory writ of mandate to issue out of this court, directed to said state auditor, and commanding him to give to the affiant a warrant for said sum. The return of the respondent is to the effect that the foregoing act of the legislative assembly in 1889 did not make any specific appropriation of money out of any fund to pay the relator; that the relator was not entitled to receive any compensation by the terms of this act until he had performed certain services; and that, when said Political Code was filed with the secretary of state, there was no money in the state treasury which was applicable to the payment of said claim by reason of the appropriations of large amounts by the second legislative assembly of the state, which had been made in 1891. It is necessary to construe these clauses and sentences of the act which was approved March 14, 1889: "The said commissioners shall each receive a compensation for his services of $4,000." Section 4. "Upon the completion of any one of the said Codes, and upon filing the same, accompanied with a general index, and the report...