Uintah State Bank v. Ajax

• Citation: 77 Utah 455,297 P. 434
• Decision Date: 30 March 1931
• Docket Number: 4990
• Court: Supreme Court of Utah
• Parties: UINTAH STATE BANK v. AJAX, STATE AUDITOR

297 P. 434

77 Utah 455

UINTAH STATE BANK v. AJAX, STATE AUDITOR

No. 4990

Supreme Court of Utah

March 30, 1931

Original proceeding in mandamus by the Uintah State Bank against Ivor Ajax, as State Auditor of the State of Utah.

Demurrer sustained, writ of mandamus denied, and case dismissed.

Robinson & Robinson, of Provo, for plaintiff.

Geo. P Parker, Atty. Gen., for defendant.

FOLLAND J. CHERRY, C. J., and ELIAS HANSEN, J., concur. STRAUP, J. EPHRAIM HANSON, J., dissenting.

OPINION

FOLLAND, J.

This is an original proceeding in this court. Uintah State Bank, as plaintiff, seeks by mandamus to compel the defendant state auditor to issue warrants on the state treasurer in its favor on account of certain bounty certificates issued by the county clerk of Uintah county to various persons and assigned by them to plaintiff. The petition contains nineteen separate causes of action, all of a similar character. A statement of one cause of action will serve to illustrate all. The plaintiff, in its first cause of action, after alleging the corporate capacity of the Uintah State Bank and the qualifications and official position of Wilson Murray as county clerk of Uintah county and of Ivor Ajax as state auditor, alleges in substance that on the 23d day of September, 1929, the county clerk of Uintah county, pursuant to and in accordance with the provisions of chapter 36, Laws Utah 1925, made, executed, and delivered to Dell Massey of Vernal, Utah, a certificate in lawful form for $ 171 on account of bounty on 25 coyotes and 7 bobcats shown by affidavit of Dell Massey to have been killed by him within Uintah county and within sixty days prior to the date thereof, and certifying that the claimant had filed a corroborative affidavit of a reputable citizen and taxpayer within the county to the effect that claimant is a reputable person and to the best of affiant's knowledge and belief the facts set forth in claimant's affidavit are true; that the certificate was made by the county clerk by deputy and was countersigned by the county recorder of Uintah county; that the certificate was for a valuable consideration assigned to petitioner, and that thereafter, on September 29, 1929, petitioner duly presented the certificate to the state auditor for payment; that after receiving the certificate the state auditor examined it together with the affidavit and other papers made and executed therewith, and found them to be in conformity with the provisions of chapter 36, Laws Utah 1925; that all such papers and certificates were correct as to form and that the certificate was duly and legally assigned to petitioner for a good and valuable consideration and the petitioner was the rightful owner thereof; and that an appropriation had been made by the Legislature of the State of Utah for the payment provided in the certificate. An alternative writ of mandamus was issued by this court directed to the defendant requiring him to issue a warrant upon the state treasurer for the amount stated in the certificate, or to show cause why he had not done so. The defendant filed a demurrer alleging want of facts in the petition to constitute a cause of action or ground of relief against the defendant, and particularly that it was nowhere stated or alleged in the petition that plaintiff's claim or demand referred to therein has ever been presented to, audited, or approved by the board of examiners of the state of Utah as required by section 13, article 7, of the Constitution of the State of Utah, or as required by title 29, Comp. Laws Utah 1917, and amendments thereto. Without waiving his demurrer, defendant filed an answer in which it is alleged that representations and statements made by Dell Massey in his affidavit were untrue, false, and fraudulent that the animals from which the hides or pelts therein referred to were taken were not killed in Uintah county within sixty days prior to September 23, 1929, nor were they killed in Uintah county at all, nor did the pelts have attached three full feet, nor were they in such marketable condition as to be salable, nor in such state of preservation as to enable the county clerk to identify them, nor were any of them subject to have bounty paid upon them under and pursuant to the act referred to, and alleged as a further defense that the claim or demand had never been presented to or audited or approved by the board of examiners as required by the Constitution and laws. To this answer petitioner filed a demurrer on the ground of want of facts to constitute a defense to the petition, and that the board of examiners have no authority in law to approve or disapprove the claim referred to. Similar demurrer and answer were filed with respect to each of the nineteen causes of action of the petition.

The first and most important question arising on this record is raised by defendant's demurrer to the petition, that is, whether or not it is necessary for plaintiff to allege that the bounty claim or certificate had been presented to, audited, and approved by the board of examiners.

It is the theory of plaintiff that the county clerk has the sole duty and prerogative of examining and auditing a claim for bounty for the destruction of predatory animals and that when he has issued his certificate for the amount of such claim, the claim is then audited and liquidated as provided by the act of 1925, and is binding upon the state; that as to such claim the duty of the state auditor is merely ministerial; that he has power to do nothing more than examine the affidavits and other papers and the certificate, and if he finds them correct in form it becomes his manifest duty to issue a warrant upon the state treasurer in favor of the claimant for the amount of the certificate, and that the board of examiners has no duty to perform with respect to a claim for bounty, nor any right to examine or audit, approve, or disapprove such claim; and that the bounty claimant or his assignee is not required at all to present such claim or certificate to the board of examiners. In support of this view petitioner relies largely upon the wording of the statute, chapter 36, Laws Utah 1925. This chapter is an amendment of Comp. Laws Utah 1917, sections 435 to 442, inclusive. These sections as amended provided in substance as follows: Section 435 creates the state bounty fund and requires the board of county commissioners of each county to levy a tax upon the assessed valuation of all sheep, goats range horses and cattle to be collected as other taxes and paid into the state treasury, there to be kept by the state treasurer in a separate fund known as the state bounty fund. Five thousand dollars annually of this fund is to be paid to the state board of agriculture and used by it in the destruction of rabbits and rodents, 50 per cent of the balance, including the unexpended balances, to go to the state board of agriculture to be spent in co-operation with the federal government for the eradication of rabies and the destruction of predatory wild animals, and the balance of the fund to be paid out upon warrant of the state auditor for bounties. Section 436 specifies the amount of bounty to be paid for the destruction of certain named animals. In section 437 it is provided:

"Any person who desires to obtain the bounties provided for in Sec. 436 shall, within sixty days of the date of killing of such animals, present to the county clerk of the county in which said animals were killed the entire hide or pelt of such animal with at least three full feet attached in such a marketable condition as to be salable, and in such a state of preservation as to enable the county clerk to identify such animals. The applicant shall subscribe his name to the following affidavit and bill of sale in the presence of the county clerk." (Giving form of affidavit.)

Section 439 requires a corroborative affidavit of at least one reputable citizen and taxpayer of the county stating that the party claiming the bounty is a reputable person and to the best of affiant's knowledge and belief the facts set forth in claimant's affidavit are true. Section 440 provides:

"It shall thereupon be the duty of the county clerk to issue a certificate under the seal of his office, stating the number and kind of skins as herein provided for has been presented for identification, and stating the sum which said person is entitled to receive under the provisions of this chapter. Said certificate shall be in substantially the following form, as may be required for the different kinds of animals." (Setting out form of certificate.)

Section 441 requires the county clerk to forward to the state auditor certified copies of affidavits required to be filed and the certificate made by him, together with the endorsements of other county officers witnessing the identification and cancellation of the skins, and to keep a record of bounty certificates issued by him and to send such skins to the state board of agriculture to be thereafter sold by such board and the proceeds of the sale to be paid into the state bounty fund. Section 442 provides:

"Upon receipt of the papers in this chapter hereinbefore provided, the State auditor shall examine the same, and if he shall find the certificates, affidavits, and other papers are in conformity with the provisions of this chapter, he shall draw a warrant in favor of the person entitled to the same upon the State treasurer for the amount shown by said certificate to be due, and shall deliver or transmit the same to the persons entitled thereto. Provided, that if the certificate issued by any county clerk in payment of bounty is not presented to the State auditor within two years from date, the same shall be cancelled and a State warrant shall not issue...