22 Utah 6 | Utah | 1900
Lead Opinion
The facts stated in plaintiff’s complaint, as amended, show, among other things, that the plaintiff is an association of eighteen persons, which at various times between the 29th day of October, 1895, and the 27th day of June, 1896, made advancements of money to the County Attorney of Salt Lake County, for the purpose of defraying expenses necessarily incurred by him in the execution of the laws of the State of Utah, in prosecuting certain ex-county officials, who were indicted for the crime of bribery, and that the total amount of money so advanced, together with interest, was $8,532.24; that the money was advanced at the solicitation of the county attorney, and members of the then board of county commissioners of. Salt Lake County, because no means were available to pay the expenses of the prosecution of the cases, or expenses of securing witnesses from outside of the State, and on the promise of the county attorney and board of county commissioners that if the money was advanced it would be returned as soon as legal authority to do so could be obtained; that in order to prosecute the cases, it was necessary to procure witnesses from Chicago, Illinois, and the amount obtained was principally used to defray the expenses of witnesses to attend 'at the trial.
It is further shown by the complaint that the plaintiff duly presented and filed with the county clerk of Salt Lake County, in accordance with the provisions of Ch. 30 laws of 1897, a claim against said county for the amount so advanced, and that accompanying the claim were itemized vouchers, showing the manner in which the money had
It is also alleged in the complaint, upon information and belief, that the reason for the refusal of the said board to consider said claim, was the belief of said board that they had no legal authority to consider said claim upon its merits.
To this complaint the defendant filed a demurrer for the reason that said complaint did not state facts sufficient to constitute a cause of action.
The demurrer was overruled, and a judgment rendered in favor of plaintiff. From this judgment the defendant appeals.
After the adoption of the constitution the legislature enacted a special statute, found in the laws of 1897, p. 46, wherein it is provided: “That in all cases since the first day of January, 1895, in which any county of the Territory of Utah or of this State, or any officer thereof, has received advancements of money from any person or association for the purpose of defraying expenses incurred in . the execution of the laws of said territory or state, and the money so received was actually used for such purpose by the county or officer receiving the same, the advancements of money so made are hereby declared to be legal and valid claims against such county as a county of this State in favor of the persons or associations paying the same, and the same shall be paid out of the treasury of such county in the manner provided by law for the payment of other claims of said county: Provided, however, that all such claims shall be presented and filed with
The able counsel for appellant strenuously insist that the above statute is unconstitutional, and in conflict with Sec. 30, Art. 6 of the Constitution.
The proviso added to Sec. 30, Art. 6, Const., reads as follows: “Provided that this section shall not apply to claims incurred by public officers in the execution of the laws of this state.”
Without this provision section 30 would doubtless bear the construction placed upon it by counsel for the appellant.
By the provisions of the Constitution and laws of this state, offenses committed prior to its adoption were continued. and could be prosecuted to judgment thereafter.
The claim under consideration was incurred by public officers in the execution of the laws of the state, and was not a legal claim against the county until the enactment of the statute. This section in the Constitution in no way limited the power of the legislature to authorize the payment of a just claim so created against a county, without authority of law.
The legislature is not restricted in its appropriation of public money by legislative enactment to cases where a legal demand exists against the county or state. It may appropriate money for any purpose which it may consider as calculated to promote public good and .protect its honor,
. Where a moral obligation exists, the legislature may give it legal effect."
There is nothing in our constitution which’ conflicts with the provisions of the statute.
In the case of The Town of Guilford v. Board of Supervisors, 13 N. Y. 143, the Court said:
“ The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude or charity. Independent of express constitutional restrictions, it can make appropriations of money whenever the public well-being requires or will be promoted by it;*and it is the judge of what is for the
In 1 Dillon on Mun. Corp., (4th ed.) Sec. 75, it is said:
“It is competent for the legislature to compel municipal corporations to recognize and pay debts or claims not binding in strict law, and which for technical reasons cannot be enforced in equity, but which, nevertheless, are just and equitable in their character, and involve a moral obligation.” j
It appears from the pleadings that all the essential requirements of the statute creating the power have been complied with; although it must be conceded that it would have been more satisfactory had the money advanced been paid into the county treasury, and thereafter drawn therefrom in the regular manner, for the purposes named.
The appellant also claims that the respondent mistook its remedy by appeal; that the proper remedy was by mandamus.
Under the statute referred to, the advances and payments made to the county attorney, for the purposes named, were made legal and valid claims against the county. Without proper consideration, and acting upon the supposition that the statute was invalid, the county commissioners rejected the whole of the claim. They did not refuse to consider or act upon the claim, but, on the contrary, acted upon it, and rejected it altogether.
The. case of the State v. Hart, 57 Pac. Bep. 415, 19 Utah, 438, is one of the cases relied upon by counsel for the appellant to sustain its contention. In that case the trial judge refused to act and compel or impanel a jury of
The facts in that case were very different from the contention here. In this case the court did act, and rejected the claim. If the commissioners had refused to act or take cognizance of the case when properly brought before them, they would be compelled to do so by mandamus. Their action in such a case would not be the exercise of a discretion or quasi judicial duty, imposed upon them by law, but a refusal to take cognizance of a matter upon which the law required them to act. But if the commissioners acted upon the claim and decided against its validity, even if they were induced to do so because of their belief that the statute was unconstitutional, the remedy of the respondent was not by mandamus, but by appeal.
The only right the respondent had was under the statute which provides for the presenting to, and passing upon, and allowance of such claims, by the county commissioners, before it can be paid. Under such circumstances if a party is aggrieved by the action of the commissioners in disallowing his claim, his only remedy is, by appeal. Having acted upon the claim once and disallowing it, the board cannot be compelled by mandamus to act again.
In Wood on Mandamus, p. 49, it is said:
! ‘ Mandamus lies to compel a court to fulfill their duties and to hear and adjudicate upon a matter pending before it, when there is no reasonable excuse for not doing so. But when thq court or body has entered upon .the matter, and have decided it, the court will not compel them to reconsider the matter, or rehear it, upon the ground that they have come to a wrong conclusion. In such cases the party must pursue his remedy by appeal or otherwise, as the writ of mandamus cannot be used to interfere with
In disallowing the claim the board exercised a judicial or at least a quasi judicial function; and when it exercised this function a writ of mandamus will not be issued requiring it to reverse or review its judgment. In such cases an appeal is the proper remedy for the defeated party.
We find no reversible error in the record. ' The judgment of the district court is affirmed, with costs.
Dissenting Opinion
dissenting:
The complaint contains the following allegations: Plaintiff further alleges that on the 7th day of September, 1897, said board of county commissioners, without considering or investigating'in any manner the facts relating to the advancement by the plaintiff of the money aforesaid, and without considering the facts relating to the purposes for which said money had been advanced and used and whether the same had been actually used for the good and benefit of said county of Salt Lake, the said board of county commissioners rejected said claim. Plaintiff alleges upon information and belief that the reason for the refusal of said board to consider said claim was the belief by said board that they had no legal authority to cousider the said claim upon its merits.”
These allegations are admitted by the demurrer, and it appears from them that the board of county commissioners refused to pass upon, the question whether the money
Under the provisions of the second proviso of the act, which authorizes, upon certain conditions, the payment of advancements of money for the purpose of defraying expenses incurred in the execution of the laws of the territory, or state, when the same was used for that purpose, it was the duty of the board of county commissioners to entertain and pass upon the question whether the money claimed by plaintiff was advanced, received and actually used for the purposes mentioned. Said provision is as follows: ‘ ‘ Provided further, that no such claims shall be paid by the board of county commissioners unless they find that said money has been actually advanced and actually used for the good and benefit of said county.”
A finding of the Board of County Commissioners as required by said proviso, that said money had been actually advanced and actually used for the good and benefit of the county, was a condition precedent to the right of recovery by plaintiff, and as the complaint alleges that this was not done, it stated no cause of action. The only remedy open to the plaintiff is by mandamus to compel the Board of. County Commissioners to perform the duty imposed by said proviso, and if when they pass upon the question they should find that said money was not expended as required by said act, the plaintiff would not be entitled to recover. They had no right to refuse to consider the claim of plaintiff on the ground of a lack of legal authority, for it was their mandatory duty to do so.
The demurrer should have been sustained.