Dodd v. MillerDodd v. Miller
- Reporters:
- Before:
- Worden
Miller, holding certain certificates for work done on contracts for draining swamp lands, issued by the commissioner of swamp lands of Lake county, applied, on the 18th of August, 1859, to the auditor of state, at his office, &c., and requested him to issue his warrant or order on the treasurer of state for the payment of the amount due upon the certificate, out of said swamp land fund. The auditor refused to draw his warrants uрon the treasurer for the amount, and Miller instituted proceedings, by way of writ of mandate, to compel the issuing of such warrants.
The defendant answered as follows:
“That at the time the said account was so presented to him as auditor of sаid state of Indiana, and from thence, *434there was, and still is, no money in the treasury of the state of Indiana, belonging to the fund upon which the warrant for said account is to be drawn, to pay said account, or any part thereof; nor is. there any appropriation made by law, upon money actually in the treasury of said state, subject to the payment of said claim, for the payment thereof; wherefore,” &c.
To this answer a demurrer was sustained, and the defendant excepted.
There was final judgment fоr the plaintiff, and the defendant appeals.
The only question presented is, as to the corrеctness of the ruling below on the demurrer to the answer.
Two positions seem to be maintained by cоunsel for the appellee, in support of the ruling below: First, that the answer is defective in not showing affirmatively how the fund applicable to the payment of the claim has been exhausted, or thе reason why it is not in the treasury; and, second, that the plaintiff was entitled to the warrant, whether the money applicable to the payment thereof was in the treasury or not.
Moneys arising from the sale of swamp lands, are to be deposited by the county treasurers with the treasurer of state, as оften as once in every ninety days, or oftener if the auditor deems the interest of the state requirеs it. 1 R. S. p. 473, § 16. No work shall be let, or advertised to be let, unless there shall have been swamp ‘lands sold previously thereto, within the county, of sufficient amount to pay the cost of the work advertised to be lеt. Id., § 25. Perhaps, under these provisions, the presumption would be that sufficient money was in the state treаsury to pay for any work in ditching the lands, that might be done; but still this would only be a presumption based upon the suрposition that the law had been complied with, in not letting work until sufficient lands had been sold to pay fоr it, and in the payment of the money arising from the sales, by the county treasurers into the state treasury. This presumption might not be true in point of fact. Such claims are only payable out of the swamp lаnd fund; and the *435auditor alleges that there was no money in the treasury applicable to the payment of the clhim. This fact was admitted by demurrer, the answer, as we think, being well pleaded. If the presumption above noticed would arise, it would be available as a matter of evidence on an issuе of fact as to whether there were funds in the treasury applicable to the payment of the claim. But the presumption is not conclusive, nor such an one as will not admit of averment to the contrary. If there was no money in the treasury for the payment of the claim, we do not think the auditor was required, by any rule of pleading, to go farther in his answer, and show why that state of things existed.
We have no diffiсulty upon the other branch of the case, being satisfied that if there were no moneys in the treasury belonging to the fund upon which the warrant, if issued, was to be drawn, the auditor was not required nor authorized to draw the warrant demanded. It is expressly enacted that “the auditor of state shall at no time draw a wаrrant upon the treasurer of state, unless there be money in the treasury, belonging to the fund upon which thе same is drawn, to pay the same, and in conformity to appropriations made by law, and on mоney actually in the treasury subject to the payment of the same,” &c. Acts of 1859, p. 230, § 8.
It is claimed that this enactment is inoperative and void, so far as it affects the certificates in question, they having been issued befоre the passage of the statute. This statute does not, as we think, taire away any vested right which the appellee had before its passage. He had a right to receive his money out of the appropriate fund whenever it should be in the treasury, and this right is not in any manner impaired by the act in question. Admitting that under § 35 of the swamp land act, the auditor might have been required to issue the warrant, although therе was no money in the treasury belonging to the appropriate fund to redeem it, still the holder of the warrant could obtain his money no sooner than it came into the treasury.. The right to the money is unimpаired, and no delay in. the-*436payment is created. The case is analogous to those where statutes affecting the remedy, but not impairing the right, have been upheld. Ind. Dig., p. 270, § 50.—Hancock v. Ritchie, 11 Ind. R. 48.
We think the answer in question was good, and the demurrer incorrectly sustained.
Per Curiam.The judgment is reversed with costs. Cause remanded, &c.