38 N.J.L. 403 | N.J. | 1876
The opinion of the court was delivered by
At the last June Term of this court a rule was allowed, at the relation of Gideon C. Angle for an alternative mandamus, commanding Albert L. Runyon, comptroller of the treasury, to audit, adjust and allow to the relator certain moneys due him from the State of New Jersey, as named in, and provided by a certain act of the legislature, entitled “ an act for the relief of Gideon C. Angle,” approved March 10th, 1874, or show cause, before this court at the
“ That the treasurer of the state be, and he is hereby authorized and directed to pay to the said Gideon C. Angle, now a resident of the county of Hunterdon, the sum of one hundred and sixty-five dollars, with interest thereon from the said date of re-enlistment, (January 1st, 1864,) being the amount of pay due the said Angle from this state.” A return was made to the writ, by the defendant, at said term, and the parties are now heard-before the court on motion to strike out the return as containing no sufficient answer in avoidance of the mandate of the writ.
The comptroller, in showing cause against the command of the writ, draws attention by his return to the second section of the act “ creating the office of comptroller of the treasury, and defining the duties thereof,” in which it is enjoined upon him that he do not allow any claim, charge or amount against the state, unless satisfied that the same is justly due; and certifies that, in fact, he is not satisfied that the claim of the said Gideon C. Angle against the state is justly due.
He avers further in substance, that the facts recited in the preamble as the grounds on which this payment was ordered to be made by the legislative act, would not, if true, justly entitle the relator to the payment of the bounty awarded to
The argument drawn from this return is, that because this claim, being for an unpaid bounty to the family of relator, and not in accordance with the provisions of any general law on the subject of bounties, in that payments to such families
If the duty of the comptroller required or permitted him to pass upon the justice or fairness of the relator’s claim to be paid this money, by reason of any military services performed, such as the state has heretofore legislated to pay bounty for, looking aside from the act for the “relator’s relief,” the judgment formed by him on the facts stated in his return, would be entirely just, and the only conclusion that could be reached by him as a faithful guardian of the public treasury. But, as the case stands, the return furnishes no legal obstacle to the demand of the relator to be paid.
While the legislature, in the preamble to the act for the relief of Angle, has recited, as grounds upon which it saw fit to bestow the state’s bounty, circumstances substantially like those under which provision was made for families of volunteers by genei’al law, yet the claim of Angle is not in any wise rested upon those general provisions, but is entirely founded upon the special act mentioned, and in that act payment is expressly directed to be made, not to his family, or to any person for them, but to him, and out of the treasury of the state.
If the act in which the gift to the relator is made, has the force of legislation, there would seem to be no way to avoid
The duty of the comptroller to audit and adjust claims against the state, and supervise their payment, relates to all claims against the state. The act creating the office directs that he shall examine, audit, adjust and settle all accounts and claims presented against the state, and certify the amount to the treasurer for payment. And it further directs that he shall draw all warrants on the treasurer, for the payment of all moneys directed by law to be paid out of the treasury. It is ■of no consequence in this case that the moneys paid out of the ■treasury under the act of 1861 and its supplement of 1865, went to the chosen freeholders of the several counties. The act under which relator claims provides a different mode for the payment of the money therein ordered, and payment must be made under each law according to its terms. Payment •being directed by law to be made to Angle from the treasury, the comptroller is required to perform such duty to effectuate •the payment as pertains to his office under the law.
The recitals in the preamble to the act in question, whether true or false, are in no way necessary to support the grant •contained in the act, and whether true or false — so far, at least, as affects these proceedings — is a question into which this court has no right to enter. The provisions of the act are plain; no resort need be had to the preamble to give it construction, or find in it “ a key to open an understanding of the statute ” — the sole office of a preamble. If false, it would not prove the legislature to have been imposed upon, and, if it did, fraud or misrepresentation is not sufficient to avoid the act of a legislative body, even if proved. J. C. & B. R. R. Co. v. Hoboken R. R. Co., 5 C. E. Green 76, and cases. “ Even an award cannot be set aside, when drawn in question collaterally, for misrepresentation or fraud in procuring it, but only in proceeding for the purpose of setting it aside.” Ibid.
The power of the legislature to pass an act like this is not drawn in question, nor indeed could it be.
Assuming the act of legislation, therefore, to be valid, cam the comptroller, because he is not satisfied of the justice of the grounds upon which the act of legislation was rested,, refuse to audit and adjust the claim to sign the warrant om the treasurer for the payment of the money? The comptroller is required, before entering upon the duties of his-office, to take an oath that he will not allow any claim, charge, or account against the state, unless satisfied that the same is justly due. The comptroller is an auditing officer. He is placed in his position as agent of the state, to protect the treasury against demands not lawfully due and payable by the state. When a claim is presented he must ascertain
The legislature in this case has left but little for the comptroller to do in adjusting the claim of the relator, and that of a ministerial character merely.
All that is required of him in auditing the claim, is to make correct computation of the lawful interest upon the principal sum of $165, ordered by the said act to be paid to the relator for the time specified therein, and to certify the.
The further objection was made to the allowance of the writ of mandamus, that the act under which the relator ■claimed imposed no duty upon the comptroller in respect to ■this payment. It is true that the act does not, in express 'terms, direct the comptroller to allow this claim and draw his warrant for its payment. This was not necessary to impose that duty upon him. It is not necessary, nor is it ■usual in acts of the legislature directing the payment of money out of the public treasury, to order, in each case, that the warrant for the payment shall be signed by him. The .general provision of law, which requires that all warrants shall be drawn by the comptroller upon the treasurer, for the payment of all moneys directed by law to be paid out of the treasury, sufficiently imposes that duty upon him.
The return of the respondent to the alternative mandamus fails to disclose any legal reason why the command of the writ should not be complied with, and must be quashed.
The comptroller is given ten days further time to make a new return, on failure so to do a peremptory mandamus should issue, requiring him to audit and adjust the claim by the computation of the legal interest upon that sum for the time mentioned, according to the directions of that act, and to draw his warrant upon the treasurer for the payment of such principal and interest.
No costs are allowed as against the respondent.