Sweeney v. Commonwealth
| Decision Date | 02 November 1904 |
| Citation | 118 Ky. 912 |
| Court | Kentucky Court of Appeals |
| Parties | Sweeney, &c. v. Commonwealth. |
APPEAL FROM FRANKLIN CIRCUIT COURT — JAMES E. CANTRILL, CIRCUIT JUDGE.
JUDGMENT FOR PLAINTIFF AND DEFENDANTS APPEAL. REVERSED.
ST. JOHN BOYLE, D. W. LINDSEY, H. CLAY HOWARD, JOHN S. SMITH, HAZELRIGG & CHENAULT, FOR APPELLANTS.
JOHN W. RAY, ATTORNEY FOR APPELLEE.
Appellant Sweeney qualified as Auditor on December 27, 1899, and gave bond, with the Fidelity & Deposit Company of Maryland as surety. This action was brought upon his bond against him and his surety to recover for an alleged breach of the bond by him in issuing the following warrants upon the Treasurer on account of the active militia:
No. 6,280. Jan. 31, 1900, to D. R. Collier.........$10,044 13
No. 6,320. Feb. 2, 1900, to D. R. Collier.......... 2,599 97
No. 6,330. Feb. 3, 1900, to A. C. Roberts.......... 56 00
No. 6,331. Feb. 3, 1900, to C. F. Ward, etc........ 646 25
No. 6,345. Feb. 7, 1900, to C. C. Mengel, etc...... 12,612 95
No. 6,346. Feb. 7, 1900, to E. E. Power, etc....... 4,022 83
No. 6,902. Feb. 21, 1900, to John Shannon, etc.. 8 00
__________
$29,990 13
On the trial it was conceded that warrant 6,331, for $646.25, was for a demand properly payable out of the treasury, and no recovery was sought thereon, and no proof was offered as to warrant 6,902, for $8. The other warrants were on account of active militia called into service by W. S. Taylor, as Governor, on January 30, 1900, after the assassination of William Goebel. The court allowed the defendants credit, by warrant 6,280 of date January 31, 1900, for $10,044.13, as that was issued before the Legislature had acted on the contest as to the office of Governor, and decided in favor of Goebel; but the other warrants he held illegal, as they were issued after the action of the General Assembly declaring Goebel governor, and after he had taken the oath of office. From this judgment the defendants appeal, and the Commonwealth prosecutes a cross appeal.
It is insisted for the State that the Auditor had no right to expend on account of the active militia anything outside of the military fund, under section 2704, Ky. St., 1903. The construction of this statute was before the court in Bryant v. Brown, 98 Ky., 211, 17 R., 801, 32 S. W., 741, and it was there held that this appropriation of $10,000 is to be expended by the Governor in the organization and perfecting of the State Guard. It was there also held that, when the militia are called into active service, they must be paid out of the treasury. The position of appellee, that there is no warrant of law for the payment of the militia when in active service out of the treasury, can not be maintained. Section 2705, Ky. St., 1903, after providing the salaries of certain officers, further provides as follows: "Other officers and men of the State Guard, when employed in active service, shall receive pay as follows:
Colonels, three dollars; lieutenant-colonels, two dollars and seventy-five cents; majors, two dollars and fifty cents; captains, two dollars and twenty-five cents; first lieutenants, two dollars; second lieutenants, two dollars; sergeants of and above the grade of first, two dollars; other sergeants and corporals, one dollar and seventy-five cents; and privates one dollar and fifty cents per day; the same to be paid out of the treasury on warrant of the Auditor of Public Accounts, upon company pay rolls, accompanied by copies or certificates, of the orders bearing on the case, certified by the Adjutant General and approved by the Governor by his own signature. Each officer and each enlisted man shall also be entitled to one ration per day, and forage when mounted, the ration and forage to be the same as in the army of the United States, or commuted at the actual cost thereof, or of subsistence." By section 2672 it is further provided:
In the case before us, the Governor, in the exercise of the discretion committed to him by law, ordered out the militia. He was the only person to determine whether the militia should or should not be ordered out, and his determination is conclusive. We can not inquire as to whether there were sufficient grounds to justify his action, as by the statute he was authorized to call out the militia whenever he deemed it necessary for the welfare of the Commonwealth. When the governor had called the militia into service, they were in active service, and therefore entitled to pay as provided in section 2705, above quoted; and, the statute making no other provision, this pay must come out of the general fund in the treasury. In the past 25 years the militia has been often called into active service, and no special appropriation has been made by the Legislature to meet the charge. This construction of the statute by all three departments of the government would scarcely be departed from if this court had not heretofore reached the same conclusion in the case of Bryant v. Brown, above referred to. Warrant 6,331, for $646.25, for which no claim was made on the trial, was for the active militia called into service at Nicholasville a short time before the call of the militia to Frankfort. Counsel, in conceding this item, necessarily took the view of the statute we have indicated.
When the militia is called into active service, the men must not only be paid, but they must be fed, for no army can be kept together without food; and therefore it is provided by section 2707, Ky. St., 1903, as follows: By the United States regulations, the proper officer makes his requisition upon the Treasurer for the amount of money necessary, and uses the money, when paid over to him, in feeding the troops and providing for them. Of necessity, the same thing must be done with the State militia when called into active service. The adjutant gneral is ex officio quartermaster general of the militia, and the amount of check 6,280, for $10,044.13, was paid to him on a requisition certified by him, and approved by the Governor by his own signature.
Counsel for appellee refer us to Ristine v. Sinking Fund Com'rs, 20 Ind., 328, Ingram v. Colgan (Cal.) 38 Pac., 315 366, 39 Pac., 437, 28 L. R. A., 187, Clayton v. Berry, 27 Ark., 131, and several cases decided by this court, all to the effect that money can be paid out of the treasury only in pursuance of an express appropriation made by law. But these cases have no application, for section 2705, Ky. St., 1903, after setting out the amount paid the militia are entitled to, expressly provides: "The same to be paid out of the treasury on warrant of the Auditor of Public Accounts." The check in question being for a claim that was certified as required by this section, we conclude that the judgment of the circuit court as to this item was correct, and on the cross appeal the judgment complained of is affirmed.
As to the other items, a different question is presented. The defendants...
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