118 Ky. 458 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
On the 30tb of July, 1903, tbe appellee, Finley Shuck, filed bis petition in tbe Franklin circuit court against Gus. G. Coulter, Auditor of Public Accounts of tbe State of Kentucky, in which be alleged that be bad rendered clerical services as chief of tbe claims department in tbe auditor’s office from tbe 1st of March, 1900, until tbe 1st of March, 1903, under tbe following written agreement: “I hereby
Tbe only question for decision is whether tbe appellant,, as treasurer, can be required by mandamus to pay tbe warrant of appellee for clerical services rendered tbe auditor after tbe appropriation for that purpose bad been exhausted in tbe payment of previous warrants for similar services; By sections 138 and 139, and subsection 4 of section 4001a, of tbe Kentucky Statutes of 1903, tbe Auditor of Public Accounts is allowed $17,400 to enable him to employ and pay such clerks as be may deem necessary for tbe proper discharge of tbe business of bis office, including tbe duties formerly performed by tbe Register of tbe Land Office. Tbe selection of tbe clerical force necessary for the proper conduct of tbe business of tbe auditor’s office, and tbe fixing or apportioning of their respective salaries, is left to the sound discretion of the auditor, but tbe aggregate of such salaries can not lawfully exceed tbe amount appropriated therefor by tbe General Assembly. By section 144 of the General Statutes of 1903, be is required to keep an account between tbe Commonwealth and her civil officers, to whom salary or wages are payable out of tbe treasury. Section 4688 provided “that no money shall be paid out of tbe treasury except upon tbe warrant of tbe auditor drawn upon tbe treasurer, and then only by check of tbe treasurer upon a designated depository; and that no such check shall be given by tbe treasurer, even though tbe auditor issues a warrant therefor, unless the law under which the money
It is not necessary for us to determine in this action what may be the ultimate liability of the State under the agreed judgment in Shuck against Coulter, auditor. All that was decided in that case was that appellee had a valid claim for $1,500 for clerical services rendered the auditor, and that warrant should issue therefor. When payment of the warrant so adjudged is demanded of the treasurer, he responds that the specific appropriation for the liquidation of claims for clerical services in the auditor’s office had been exhausted previous to the issual of appellee’s warrant, and that there were no funds in the treasury out of which such warrant could be lawfully paid by him. Ordinarily, when the law recognizes the validity of a claim against the State, it is payable out of any funds in the treasury not otherwise appropriated, but a wholly different rule prevails where a claim against the State is payable only out of a specific appropriation, which has been exhausted. When this state of case is shown to exist, courts can not by mandate require the auditor to issue a warrant for the claim, or the treasurer to pay it. See Throop’s Public Officers, sections 823, 824; Weston v. Dane, 51 Me., 461; Kentucky v. Boutwell, 13 Wall., 526, 20 L. Ed., 631; United States v. Bayard, 127 U. S., 251, 8 Sup Ct., 1156, 32 L. Ed., 159; Page v. Supervisors, 85 Cal., 50, 24 Pac., 607; People v. Hyde Park, 117 Ill., 462, 6 N. E., 33.
For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.