State v. Stover

• Decision Date: 10 October 1891
• Citation: 27 P. 850,47 Kan. 119
• Parties: THE STATE OF KANSAS, on the relation of the Board of Regents of the State Normal School, v. S. G. STOVER, as Treasurer of the State of Kansas
• Court: Kansas Supreme Court

27 P. 850

47 Kan. 119

THE STATE OF KANSAS, on the relation of the Board of Regents of the State Normal School, v. S. G. STOVER, as Treasurer of the State of Kansas

Supreme Court of Kansas

October 10, 1891

Decided July, 1891.

Original Proceeding in Mandamus.

ACTION of mandamus by The State, on the relation of the board of regents of the state normal school, at Emporia, to compel S G. Stover, as state treasurer, to pay certain moneys to the treasurer of said board. The material facts appear in the opinion, filed October 10, 1891.

Writ denied.

J. Jay Buck, and I. E. Lambert, for plaintiff.

John N Ives, attorney general, for defendant.

HORTON C. J. All the Justices concurring.

OPINION

HORTON C. J.:

This is an action of mandamus by the state of Kansas, upon the relation of the board of regents of the state normal school, at Emporia, against S. G. Stover, the state treasurer, to compel him to pay to the treasurer of the board $ 1,700 upon its written order, from interest in his hands, on the state normal school fund. The state treasurer refuses to pay the order presented, and also refuses to pay any other order of the board of regents, upon the ground that there has been no appropriation by the legislature of any moneys accruing from the interest of the state normal school fund, as required by the constitution of the state. Section 24 of article 2 of the constitution ordains, "that no money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law; and no appropriation shall be for a longer term than two years." The sole question in this case is, whether the interest of the state normal school fund can be disbursed by the treasurer of the state upon the orders of the board of regents of the state normal school without an appropriation by the legislature. In 1863, the legislature of the state established and permanently located at Emporia a state normal school. At the same time it set apart and reserved as a perpetual endowment for the support and maintenance of the normal school certain lands granted to the state by the fourth subdivision of the third section of the act of congress admitting Kansas into the union. (Laws of 1863, ch. 57; PP 6310, 6312, Gen. Stat. of 1889.) In 1872, the legislature passed an act providing for the sale of lands belonging to the normal school. Section 4 of that act provided: "All moneys derived from the sales of lands under the provisions of this act, both principal and interest, less the amount of commissions allowed by the board of directors for the sale thereof, shall be paid into the state treasury, where it shall constitute the 'state normal school fund,' for said institution." (Laws of 1872, ch. 189; P 6333, Gen. Stat. of 1889.) In 1886, the legislature granted to the normal school a further endowment of 12 sections of land. (Laws of 1886, ch. 156.) In 1879, the legislature enacted the following provision: "All moneys belonging to the . . . state normal school fund . . . shall be deposited with and paid to the state treasurer, and be subject to the order of the board of school-fund commissioners." (Laws of 1879, ch. 166, § 49; P 6594, Gen. Stat. of 1889.) Sec. 117 of ch. 166, as amended by the Laws of 1883, ch. 143, § 1, now reads:

"Said board of commissioners shall have the power, and it is hereby made their duty, from time to time to invest any moneys belonging to the . . . state normal school fund, . . . in the bonds of the state of Kansas or of the United States, school-district bonds of the several school districts of the state of Kansas, bridge, court-house bonds, or in county, township, or city refunding bonds of the several counties, townships and cities of the state of Kansas." (Gen. Stat. of 1889, P 6654.)

From the provisions of § 4, chapter 189, Laws of 1872, and § 49, chapter 166, Laws of 1879, we are of the opinion that all moneys derived from the sale of the lands of the normal school, both principal and interest, less the commissions for the sales of the lands, are expressly required to be paid into the state treasury. These sums constitute "the state normal school fund." The interest on this fund, which the board of regents, through its president and secretary, now desire to draw from the possession of the defendant, who is the treasurer of the state, is rightfully in his hands as state treasurer. It is therefore rightfully in the state treasury. If it is in the state treasury, and rightfully there, then it cannot be drawn therefrom except in pursuance of an act of the legislature specifically authorizing the same to be done. (Martin v. Francis, 13 Kan. 220.)

There was no appropriation made at the late session of the legislature for the payment of the class of orders or warrants issued to the state treasurer by the president and secretary of the board of regents. As the interest, as well as the principal, of the state normal school fund is rightfully and legally in the state treasury, the state treasurer has no lawful power, under the provisions of the constitution of the state, to honor or pay the order drawn upon him. It is contended, however, that the language of § 4, chapter 189, Session Laws of 1872, and of § 3, chapter 156, Laws of 1886, which authorizes the interest of the school fund to be subject to the order of the president and secretary of the board of regents, and permits them to use the same as the needs of the school shall require, make the state treasurer the agent of the board of regents, and that the interest derived from the state normal school fund is to be held by the state treasurer as the agent of the board, not otherwise. The statute, however, expressly provides that the interest, as well as the principal, "shall be paid into the state treasury;" not that it shall be paid to the person holding the office of state treasurer, or to the agent of the board of regents. The provision in the statute for the board of regents to use the interest for the support and maintenance of the state normal school must be read in connection with the provisions of the constitution of the state, and the use by the board is subject to the limitations prescribed in the constitution. (Const., art. 2, § 24.)

The contention that the board of regents, under the statute, has the power to use the interest on the state normal school fund without an appropriation by the legislature, is disposed of by the decision in Martin v. Francis, supra. The legislature, in 1871, by chapter 39, § 17, provided for the creation of an insurance fund out of the fees to be paid to the state superintendent of insurance, and also provided that the fees should be paid into the state treasury by the superintendent of insurance when collected....