Donnellan v. Nicholls
1 Wyo. 61
Wyo.
1872
Check Treatment

By the Court,

Fisher, C. J.

This was an action on a petition for a peremptory mandamus to compel the respondent in the court below, who was the treasurer of the territory of Wyoming, to indorse a warrant drawn by J. H. Hayford, auditor of the territory, in favor of the petitioners, who were the commissioners of Laramie county. The money to be realized on the warrant was for the purpose of indemnifying the said county for the expenses incurred in taking prisoners to the house gf correction at Detroit, in the state of Michigan.

*65The petition in the court below sets out that the said warrant had been drawn by the aforesaid auditor for the sum of four hundred and eighty ($480) dollars for that amount, under a proceeding for a peremptory mandamus, and that when the said warrant had been presented to the treasurer for payment, that he (the treasurer) had refused either to pay it or indorse it; that then an application was made to the court below for a mandamus to compel its payment or indorsement, or to show cause why he did not do so, which, after argument, was made peremptory.

That the treasurer, by his solicitor, brought the case to this court by writ of error and assigned as error: 1. That the court erred in granting a peremptory writ of mandamus to compel the respondent to indorse the said warrant as prayed for. The case was submitted by Mr. Johnson, solicitor for plaintiff in error, and by Mr. Cook, solicitor for defendants in error, each citing the statutes of Wyoming.

The laws of the territory provide that the auditor of the territory shall draw all warrants on the treasury for moneys to carry on the affairs of the territory, and that the treasurer shall pay such warrants out of such funds in the treasury as shall be appropriated for that purpose; and in the event of there being no funds in the treasury to pay such warrants, it shall be the duty of the treasurer to indorse each warrant that it has not paid for want of funds. They also provide that no warrant shall be drawn unless an appropriation has been made by the legislature to meet it. But this territory, owing to the neglect of the legislature to make the necessary appropriation at its last session, has been placed in such a condition that it is impossible to carry on its functions without the necessary funds for that purpose. In this ease the auditor has issued his warrant under the direction of one of the judges of the supreme court. It is true that the laws of this territory provide that no money can be drawn from the treasury except under an appropriation by the legislature, but that is under the supposition that the legislature will properly discharge its duties *66by making due provision for executing the legitimate functions of government. If the day after the' legislature met that body had adjourned and left without performing any of the duties incumbent upon it, is it to be supposed that all the business of the territory must be suspended for the want of appropriations ? Surely not. What then remains to be done ? So far as the failure to provide for the expenses of the courtis concerned, we were left in a state of chaos; and it only remains for the government to exert the latent power remaining in the hands of the people for their own protection. The law provides that the sheriffs of the several counties shall receive certain compensation for conveying prisoners to the penitentiary, and this is just as imperative as any other law on our statute books. And if no appropriation is made, and no money can under any circumstances be had, to bear the expenses of such removal of persons convicted of crime, we cannot see how that law is to be observed.

We, therefore, feel bound to see that the laws for the protection of the persons and property of our citizens be enforced, even if the legislature has failed to provide the means. But is there no provision in the law tc meet such emergencies as have arisen under the circumstances in this case? By the act entitled “An act to provide for criminals, insane, and certain other persons, approved December 7, 1869, ch. 20, p. 305, Statutes of Wyoming, it is provided:

“ Section 1. That in any county in this territory, when it became necessary to transport, or to transport and provide for any idiot, lunatic, insane, blind, deaf, deaf mute or criminal, to any eastern asylum, school or prison, it shall be the duty of the county commissioners of such county, upon proper and satisfactory representations to them, to apply to the governor for pecuniary or other aid in such case.
“Section 2. Then, if the governor approve the application, he is hereby authorized to call upon the auditor for a warrant upon the treasurer, in favor of the board of county commissioners, sufficient for the purpose, and it shall be *67placed in the hands of the county commissioners, who shall be officially and personally responsible for the proper application of such funds, as far as they may be able.”

This is all that has been done in this case, and we fail to see any good grounds for complaint in the premises. The action of the district court in granting the peremptory mandamus, is approved and affirmed.