State v. Major

• Decision Date: 25 June 1920
• Docket Number: 4609.
• Parties: STATE EX REL. DOLIN v. MAJOR, COUNTY CLERK.
• Court: Montana Supreme Court

192 P. 618

58 Mont. 140

STATE EX REL. DOLIN v. MAJOR, COUNTY CLERK.

No. 4609.

Supreme Court of Montana

June 25, 1920

Appeal from District Court, Sheridan County; C. E. Comer, Judge.

Mandamus by the State, on the relation of Joseph F. Dolin, against A A. Major, County Clerk of Sheridan County. Judgment of dismissal, and relator appeals. Affirmed.

Babcock & Ellery, of Plentywood, for appellant.

J. J Gunther, of Culbertson, Geo. Cudhie, of East Scobey, and S C. Ford, of Helena, for respondent.

BRANTLY C.J.

On November 29, 1919, the relator (plaintiff) presented to B. K. O'Grady, the auditor of Sheridan county, for her approval a claim for printing done by relator for the county, properly itemized and verified as provided by the statute. Rev. Codes, § 2945. On December 2, the auditor approved the claim in part, but disapproved it as to the remainder, and reported it to the board of county commissioners with the indorsement of her action thereon. At its regular session on January 6, 1920, after considering the claim, the board disregarded the action of the auditor disapproving a portion of it, settled and allowed it in full, and ordered the defendant (respondent), the county clerk, to draw a warrant for the amount of it in favor of the relator. The defendant refused to comply with the order, though the relator made demand upon him. Thereupon the relator applied to the district court for a writ of mandamus to compel him to issue the warrant. In response to the alternative writ he filed his answer, in which he denied the power of the court to order him to issue the warrant. Relator's general demurrer to the answer having been overruled, he elected to submit the application for final decision upon the question of law raised by the answer. The court rendered judgment for the defendant, setting aside the alternative writ and dismissing the application. The relator has appealed. The question presented for decision is whether the board of commissioners may settle and allow a claim against the county and order the issuance of a warrant for its payment, though it has been disapproved by the county auditor. In other words, is it within the authority of the board of commissioners under the statute defining its power and jurisdiction in that behalf, to settle and allow a claim against the county, notwithstanding the auditor has disapproved it?

A claim, as the one in question here, may be disapproved only in part. The part disapproved, however, is still pro tanto a claim outstanding against the county, the validity of which remains to be determined at the option of the claimant by such proceeding as may be available to him for that purpose; for, however extensive the power possessed by the auditor, it cannot be assumed that his disapproval of a claim is finally conclusive against the claimant.

The general powers of the board of county commissioners with reference to claims against the county are defined in section 2894 of the Revised Codes, as follows:

"The board of county commissioners has jurisdiction and power under such limitations and restrictions as are prescribed by law. * * * At regular meetings of the board to examine, settle and allow all accounts legally chargeable against the county, except salaries of officers, and order warrants to be drawn on the county treasurer therefor, and provide for the issuing of the same."

The duties of the county clerk in this behalf are defined as follows:

"The county clerk must: * * * Draw warrants on the county treasurer in favor of all persons entitled thereto in payment of all claims and demands chargeable against the county, which have been legally examined, allowed, and ordered paid by the board of county commissioners; also for all debts and demands against the county when the amounts are fixed by law, and which are not directed to be audited by some other person or tribunal." Section 3045.

Sections 3100 to 3110, inclusive, create the office of county auditor, for all counties having an assessment of not less than $8,000,000, and prescribe the duties of this officer. Section 3106 declares:

"It shall be the duty of persons holding claims against any county having a county auditor to present the same to the county auditor, whose duty it shall be to audit the same. The county auditor shall also investigate and examine into all claims presented to him and report the same with his findings to the board of county commissioners at their regular session after such investigation shall have been completed with his approval or disapproval indorsed thereon, and he shall keep a complete record of all such claims and of his investigations and examinations of the same in a book kept for that purpose. In all counties having a county auditor, all bills, claims, accounts or charges for materials of any kind or nature that may be purchased by and on behalf of the county by any of the county officers or contracted for by the commissioners shall be investigated, examined and inspected by the county auditor, who shall indorse his approval or disapproval thereon before any warrant for the payment of the same can be drawn. In all counties having a county auditor, no claim against the county shall be paid or warrant drawn therefor unless the same shall have the approval of the county auditor: Provided, however, that the judge of the district court of the county where any claim has been disapproved by the county auditor may order the payment of the same."

It will be noticed that under section 2894 the power of the board to settle and allow claims against the county seems to be limited to those in the form of accounts only; but, speaking generally, since the board has the exclusive power to act for the county and to control the disbursement of its funds, the word "accounts," used therein, must be understood in a broad, generic sense, and as including any right to or claim for money which is due and payable from the county treasury; for whether a claim, other than one of those expressly excepted, be technically in the form of an account or not, the board must recognize it as a legal claim before it can make an allowance of the amount of it and order its payment. Otherwise the clerk may not draw a warrant on the treasurer in any case not directly authorized by section 3045. As to the excepted claims, namely, salaries and debts and demands the amounts of which are fixed by law, no allowance is necessary, because jurisdiction over them is not vested in the board, and it is the clerk's legal duty to draw warrants for their respective...