| Idaho | Jan 15, 1871
Opinion by
Tbe facts in tbis case, as shown by tbe record, are as follows : In March, 1868, tbe plaintiff was territorial prison-keeper, and, as such, bad charge of tbe territorial prison, with tbe convicts therein confined. -That several of said prisoners in bis charge and custody escaped, and that in tbe pursuit and capture of three of them be expended tbe sum of one thousand dollars in tbe month of March, 1868. That on tbe twenty-second day of November, 1870, two years and eight months after said money bad been expended, tbe plaintiff presented to tbe territorial treasurer, as ex offlcio prison commissioner, for allowance, bis account, in tbe words and figures following, to wit:
“■ Idaho territory, to James I. Crutcher, territorial prison-*373 keeper, Dr., to money expended in pursuing and arresting Hiram Eortz, Dunn, Bailey, escaped territorial convicts, during the month of March, 1868. One thousand dollars— $1,000.”
This account is sworn to, and on the twenty-second day of November, 1870, the territorial prison commissioner made thereon the following indorsement, to wit:
itD. Cram, Territorial Controller:
‘ ‘ Sir — I have examined the above account, and believe the same to be true and correct, and the territory is justly indebted to James I. Crutcher in the amount of one thousand dollars, for which you will issue your warrant upon the prison fund. E. C. STERLING-,
“ Prison Commissioner.”
The controller refused to issue the warrant, and the question submitted to the court below was, whether a writ of mandamus be ordered to compel him to issue the warrant. It is insisted by the plaintiff that the controller is by law required to issue the warrant upon the certificate; that he is concluded and estopped by the certificate of the prison commissioner, and can not go behind it to ascertain whether the account be such as the law requires shall be paid, or whether it has been presented in time under the provisions of the statute.
It is provided by section 7, page 192, Laws of the Third Session, that all persons having claims against the territory shall exhibit the same, with the evidence in support thereof, to the controller, to be audited, settled, and allowed, within two years after such claims shall accrue, and not afterward. And by the provisions of section 9, page 162, Third Session Laws, it is made the duty of the territorial prison commissioner to examine and certify all accounts of the territorial prison-keeper to the controller, -when satisfied they are legal. The law requires that the accounts be certified to the controller. Why provide for sending to the controller the accounts certified, if the controller is to have no discretion? Had the legislature intended to make the action of the commissioner conclusive, they would have pro
Tbe laws above referred to were botb passed at the third session, and are to be construed together, and a fair construction seems to be this:
That tbe certificate of tbe commissioner upon the account, is tbe evidence of tbe plaintiff in support of his claim. That this claim should bave been presented to the controller, with such certificate, within two years after tbe claim accrued; that as it appeared on the face of tbe account that more than two years bad elapsed after the claim bad accrued, tbe controller was by law prohibited from allowing tbe claim. That in all cases it is tbe province and duty of tbe controller to allow no claims unless be is satisfied that they are correct, and presented within tbe time provided by law; and that notwithstanding tbe commissioner’s certificate thereon, be may allow or reject tbe claim, as tbe law and facts may require.
Tbe judgment of tbe district court is therefore affirmed.