State v. King

• Decision Date: 08 February 1902
• Parties: STATE ex rel. NOONAN v. KING, Comptroller.
• Court: Tennessee Supreme Court

67 S.W. 812

108 Tenn. 271

STATE ex rel. NOONAN v. KING, Comptroller.

Supreme Court of Tennessee.

February 8, 1902

Appeal from circuit court, Davidson county; John W. Childress Judge.

Mandamus by the state, on relation of M. J. Noonan, against Theo. F. King, comptroller. From a judgment granting the writ respondent appeals. Affirmed.

E. A Price and K. T. McConnico, for appellant.

G. W Pickle, Atty. Gen., for appellee.

McALISTER J.

The relator, Noonan, as shop and factory inspector of the state of Tennessee, filed the petition herein for the writ of mandamus, to compel the comptroller to issue his warrant on the state treasurer for the payment of his (Noonan's) salary. The comptroller demurred to the petition and alternative writ, upon the ground that no appropriation had been made by law for the purpose of paying relator's salary, and he was therefore without authority to issue the warrant. The demurrer was overruled, and, the comptroller refusing to make further defense, a peremptory writ was ordered, and final judgment pronounced against him. Thereupon the comptroller appealed, and has assigned errors. The main inquiry upon the record is whether any appropriation has been made by law for the payment of this salary out of the public treasury. The constitution, art. 2, § 24, provides, viz.: "No money shall be drawn from the treasury but in consequence of appropriations made by law, and an accurate statement of the receipts and expenditures of the public money shall be attached to and published with the laws at the rise of each stated session of the general assembly." Shannon's Code, § 287, provides, viz.: "No money shall be paid out of the public treasury unless the law or laws under which the sum may be claimed, or demanded, shall expressly direct and order that it shall be paid out of the public treasury, and unless the warrant shows the name of the person in whose favor it is drawn and the nature of the claim upon which it is founded and the statute or authority under which it is issued." It is insisted that the salary of the shop and factory inspector was not included in the general appropriation bill made by the legislature of 1901, and, further, that the act of 1899 creating the office fails to provide for its payment out of the public treasury. The act of 1901 (chapter 67), amending the act of 1899, which created the office, provides, viz.: "That the salary of said inspector shall be twelve hundred dollars per annum, payable monthly on warrant of comptroller, as other salaries are paid." The precise objection made to this act is that it fails to provide that this salary shall be paid out of the public treasury, but simply fixes the amount and manner of payment.

But the principal question submitted for our determination is whether the language of the act of 1901 fixing this salary and providing for its payment amounts to an appropriation by law, within the meaning of section 24, art. 2, of the constitution, which declares that "no money shall be drawn from the treasury but in consequence of appropriations made by law." The question, when otherwise formulated, is, must all payments from the public treasury be made in consequence of general appropriation bills, and is this the only mode of appropriating money by law in the sense of the constitution? It may be remarked that this provision originated in the constitution of 1796, and was readopted by the convention of 1834, with the addition, "And an accurate statement of the receipts and expenditures of the public money shall be attached to and published with the laws at the rise of each stated session of the general assembly." This provision as amended was then incorporated in the constitution of 1870. It is matter of history that general appropriation bills, while commendable in practice, are of comparatively modern origin. So far as we have been able to discover, the acts of 1879 furnish the first precedent for a general appropriation bill. Anterior to that time, through a long series of years, such specific direction for the payment of money out of the state treasury was not supposed to be necessary in any case where the particular claim was fixed by a special statute. No general appropriation bill was ever passed prior to 1879.

It has been erroneously supposed the general appropriation bills of 1899 and 1901 contain express inhibitions against the payment of any money out of the state treasury unless the nature and amount of the claim is specifically included therein. The provision referred to in the general appropriation bill of 1899 and 1901 is contained in the first section, viz.: "The comptroller is hereby expressly forbidden to draw his warrant on the treasury for any amount over and above the amount appropriated for any particular purpose, and he is also forbidden to draw his warrant for any amount for any purpose for which an appropriation has not been made, either in this act or by law." This very act clearly recognizes the right of the comptroller to pay claims, salaries, and other expenses, which have already or may thereafter be fixed by law. The only limitation imposed by the constitution upon the payment of money out of the public treasury is that it must be in consequence of appropriations made by law. So that the main inquiry in this case is whether the provision in the act of 1901 that "the salary of said inspector shall be $1,200 per annum, payable monthly, on warrant of comptroller, as other salaries are paid," amounts to "an appropriation made by law."

This question, while of first impression in this state, so far as we are advised, has frequently arisen in other jurisdictions and has been resolved in the affirmative. In 2 Am. & Eng. Enc. Law (2d Ed.) p. 515, we find the following statement, viz.: "In a number of the United States there are constitutional provisions to the effect that no money shall be drawn from the treasury but in pursuance of appropriations made by law." "Appropriations," as applicable to the general fund in the treasury, is defined to...