*1 GROUT GATES. finally were plaintiffs said the defendants It commissioners claim of Mrs. before the while attendance they being considered, participated Dunnett and that denying thereon, therefore, estopped from hearing are, argument that the her claim. a sufficient answer to this findings nothing point for consideration on this here. leave foregoing discussion order It follows from the that the defendants, pay of Mrs. the claim chancellor" right. two without In view the Dunnett was decision unnecessary points the other considered becomes review questions the case. reversed, remanded,
Decree and cause with directions that injunction establishing dissolved and a decree entered question good the trust law and deed valid. sufficient had on the Ella hearing plaintiff Let a claim the Dun- according nett as and a entered thereon as said creditor decree disestablished, claim be established with costs defend- ants. Benjamin Aaron H. F. Grout, Gates, of State
State Auditor. February Term, 1924. J., Watson, Powers, Taylor, Butler, Present: Slack, C. JJ. Opinion filed March Limitation in Which Statute Mode Statutes —Effect Thing States—“Expenditure”—“Appropri- is to Be Done— Emergency May Delegate Board —Such Board Not ation” — Its Authority Emergency Expenditures to Mahe —Construc- tion Emergency Statutes —Duties Super- Board As to Emergency May vision Expenditures Emergency Board — Money Appropriation Not An Malte Public Audi- —State Question tor’s Merely May Duties Not Raise Ministerial — Money Lawfully Appropriated Whether Act —An Authority State Auditor Without Law Is No Effect— GROUT v. Treasurer’s Monthly Auditor Statement Showing Appropriation Upon Unauthorized Conclusive Not Authorizing Available —Act .Auditor—Mandamus—When *2 Emergency Expenditures by Emergency Board Unaffected by Appropriation Shortage Provisions Funds Act— Motor Law Vehicle Emer- Enforcement of “Unforeseen gency” Emergency May Board to Expendi- Resolve Malee — by Emergency tures Necessitated Shortage Actual Before Exists. Funds thing particular mode, 1. When a statute limits to a he done in a (cid:127)by necessary negatives implication any it other use mode. 39, giving emergency 2. Under Acts of No. § “authority any expenditures by to make necessitated unfore- emergencies,” “expenditure” expending, seen an the “act laying money, disbursement,” a out of an from different “appropriation,” apart for, assign which means set “to or to to, use, particular person or a exclusion all others.” emergency delegate authority granted by 3. The cannot it any expenditures Acts of No. “to make § necessitated by emergencies,” appro- unforeseen and so is not authorized to priate apart money Or set to some or officer of expended, although may person the State to be so select a expenditures make the to under its direction. construing statute, given, possible, every In a effect should if word, clause, and sentence thereof. provisions
5. While the of Acts of § No. 39 do not neces- sarily contemplate board, that the members of the emergency exists, per- when unforeseen shall themselves making expenditures form the detailed work thereby authorized, through and the work be done its agent agents, contemplate that, the statute does in the in- economy governmental efficiency, terest of State the board work, shall take the administration such moneys general shall be used under its designation, direction and control in its official and that by required statement itemized such section shall be by rendered to the auditor of accounts the board and in name. GROUT GATES. carry construed, possible, if into effect be so
6. A statute should object intent, legislative to the manifest with reference accomplished it. adopted, statute, construing construction if should be 7. In possible, make the Constitution. will it consistent with emergency board, No. § under Acts 8. The action of the expenditures authorizing un- make necessitated it “to appro- attempting emergencies,” resolution foreseen priate apart for its from funds use and set succeeding Legislature, current next certain sums for the Secretary years, auto- the use of State department, previ- and to add such sums to the sums mobile ously appropriated by Legislature for use department, powers was of State outside legislative appropriate money board, power as the II, 27), (Ch. the Constitution Section character and under Assembly. exclusively and is with the General *3 Although accounts is but a subordinate executive 9. the auditor of they purely ministerial, officer, his are and certain duties require character, are not all but some exercise discretionary, and, judgment view of the of his and are departments expenditures and that limitation of to make by except for auditor is law to his forbidden draw warrant lawfully appropriated, may question he raise constitutionality of under it is the law or laws required particular warrant for a claimed he draw his is expenditure. no warrant of is of An act Auditor without effect. emergency board, attempting to act under Acts
11. Where the expenditures 39, authorizing it “to make § No. circumstances,” appropriated unforeseen necessitated Secretary apart in the certain of the of State set sums use department, showed automobile and the State Treasurer’s books department, credited to and such amount as by the Treasurer Auditor (cid:127)credit been certified to the State had making act, monthly, provisions 40 of of section such controlling” on the statement “conclusive and Treasurer’s against specific Auditor, issuing “in the amount attempted inapplicable, appropriations,” were because the GROUT GATES. appropriation, being law, authority without without force, required hence he could not issue his warrants against fund. such existing only performance writ 12. A of mandamus can enforce the duties, only remedy such a is there is available where legal right any adequate legal remedy. clear without operating authorizing 13. The effect of § Acts of No. emergency any expenditures board “to make necessitated un- circumstances,” foreseen is not affected Acts of No. providing § that the force and con- effect of provisions trary to or without intent last- of the of the suspended. named act shall be large registration 14. A and unforeseen increase of motor vehicles, law, motor violations of the vehicle acci- therefrom, injuries to motor dents vehicles deaths and rendering appropriation Legislature for usé made department of State in the automobile inade- quate properly carry on the additional work occasioned thereby, constituted an “unforeseen emer- gency” meaning 7,' 39, within the of Acts of author- § No. emergency
izing expenditures board to make an un- when emergency foreseen occurred. circumstances, regular appropriation 15. Under such when the ex- hausted, may expendi- make lawful necessary carrying tures on the work of the automobile de- through partment agent agents, during the continuance emergency, apparent and when the upon regular appro- resolve action before the priation completely exhausted, to the end that the affairs department may be conducted in reliance action. of mandamus, preferred Supreme for a writ to tbe Petition *4 Washington County petition Court and beard on tbe February Term, answer at its 1924. Petition dismissed. Archibald, Attorney General, F. C. and John G. Sherburne petitioner. for tbe presumed constitutional;
A law is to’be and is to sobe treated by all subordinate executive tbe passed officials until courts have v.
438
Bennington
al.,
191;
it. Town
v. Park
178,
et
50 Yt.
Salisbury,
565, 568;
Ives v.
56 Yt.
State ex rel. N. O. Canal &
Banking
Heard,
1679,
524;
Co. v.
47
512,
La. Ann.
47 L: R. A.
Examiners,
People
Salomon,
Thoreson v. Board
19
18;
Utah
v.
Smythe
272;
54
39, 46;
Agents
Titcomb,
al.
et
v.
31 Me.
Clarke,
Capito
Tremont School District v.
33
482;
Topping
Me.
v.
(W. Ya.), 64
22
845,
(N. S.) 1089,
S. E.
L. R. A.
1091; Port
Boyal Mining
Hagood (S.
884;
Co. v.
C.),
841,
3 L.
A.R.
Co-,
County Court
Braxton
Virgina,
v. State West
U. S.
208
192, 52
450; Threadgill
Cross,
L. ed.
403,109
558,
v.
26 Okla.
Pae.
138
964;
A. S. R.
Board
Liquidation McComb,
541,
v.
92 U. S.
23
ed. 623;
Heard,
L.
State v.
1679,
512;
47 La. Ann.
47 L. R. A.
Co.,
Denver
Adams
v.
33
1,
Colo.
The appropriation to
board made
Acts
7,
39,
No.
and Acts
specific
§
No.
was
§
purpose,
amount and
Legislature
the intent
clear,
appropriation
hence such
contravention
provision
of the Constitution.
892;
Eggers
Cyc.
v.
(Nev.),
819, 820;
Pac.
Brian (Nebr.),
State v.
916; Campbell
N. W.
v. Commissioners,
(Ind.),
etc.
34; Highgate
N. E.
State,
v.
39;
Yt.
Bordelon,
State v.
officers and entitled Be National 1043; to be considered the court. 25 C. L. R. Vermont, Vowell, 5 Guard United States 493; 71 Vt. v. States, First Bank Nat’l v. United Cranch, 128; 3 L. ed. (N. S.) 1139; L., p. 46 note 206 Fed. L. R. A. R. C. Cyc. 36 1043; act, petition compel
A for mandamus will lie to a future clearly required by has perform when the officer law to act unequivocally announced his intention to refuse act when Wrightson, comes. State rel. Morris v. Law, ex 5 N. J. time Bizzer Cyc. People, 548; 181; 22 26 28 Atl. L. R. A. v. Bahway, ex rel. Hanna v. App. 40, 315; 18 69 Colo. Pac. Brooklyn, Auditors, Town United States v. Law, 110; 33 N. J. Boston, Attorney General v. 460, 474; 9 123 473, 475; Fed. Mass. Knox, al. v. Graham & (Ky.), 56, Horton, Ha-ddox ei 71; Mete. Chicago Comptroller General, K. & Bliss & Co. v. 431; S. C. W. B. Co. v. Horis et al. ex (Kan.), 456, 459; 30 Pac. Marquette 950; City rel. v. BusEhausen (Neb.), N. W. Lloyd et al. v. Cahill State ex rel. (Tex.), Austin 543; 88 S. W. 845; North Carolina Batwell, Public 15 Mont. 37 Pae. Go., Go. v. Power Southern S. E. State v.
Service *6 Weston, 218, 31 487; (S. Mont. 78 Pac. 100 D.), State v. Metcalf In 923, McGrath, 231; N. W. 67 L. A. 331; E. re 178 N. Y. S. Isle, Sampson 383, 391; Liquidation v. Grand 78 Yt. Board v. of McGomb, L. 23 ed. 628. George petitionee. L. Hunt merely The officer, State Auditor is not a ministerial is but .charged discretion, although with the is exercise of it not bind- ing upon the court when upon interpretation' based his of a Howard, v. statute. 83 6.Yt. finding an emergency by
The unforeseen conclusive, as statute make does not the action dependent upon the board declaration the existence of an emergency, unforeseen rather but the existence in fact emergency. the unforeseen Acts of San 39; No. § Investment Go. San (Cal.), Christina v. Francisco 141 Pac. 52 (N. S.) E. 676; (Ga.), L. A. Atlanta v. E. Scott Ill S. Keyes 426; v. (Cal.), San Francisco 475; 173 Pac. Stern v. Spokane (Wash.), Ill 231. Pac.
An emergency, unforeseen meaning within the of Acts No. a situation, which, having requisite ele- § emergency, ments Legislature cannot said that reasonably foreseen, have etc., casualties fires, .could Harley Church v. (Mo.), (N. L. S.) 39 E. A.
Any gives other construction no effect to word “unfore- seen,” construing and in a statute, given every effect must be part it, possible. Walsh, if Cole 97 122 Yt. Atl. 664. emergency”
The words “unforeseen
contemplate
cannot
con-
necessarily
exist
and inhere
work of ad-
ditions
ministration,
always
greater
which will
present
v,
extent. United States
Sheridam-Kirk Contract Go.,
.less
809; Ellis
States,
Fed.
v. United
1047;
206 U. S.
51 L. ed.
(Cal.),
Burr v. San Francisco
581;
A. L. E.
note, 17
E.
A. L.
San
586;
Christina Invest.
Francisco,
Go. v. San
supra; Atlanta
(Ga.),
'426;
v. Scott
Ill S. E.
First Nat’l Bank
Van
Burén
Twp.
(Ind.),
School
N. E. 863; Parker v.
(La.),
Monroe
587; Mallon
So.
v. Water
(Mo.),
Commissioners
764;
128 S. W.
People
(Cal.),
v. Lee Wah
County
11 Pac.
v. Butler
Colfax
County (Neb.),
defendant Auditor of Accounts in and for the State. given by facts paragraphs here stated are numbered as complaint.
3. That relator as Secretary at the head charge registration and has motor vehicles, licensing of operators, and, by way lawof enforcement, investigation against of offenses the motor vehicle suspension laws and of operator’s in the licenses, and performance of employs such duties clerks, inspectors ex- aminers. 4. That in the calendar 1922 pleasure vehicles and n'umljer
trucks cycles to the number 43,881, motor to the 856, and dealers to the number of 305 were registered, motor *7 vehicles to 5,408, the number of re-registered, operator’s were and and chauffeur’s licenses to the number 50,897, of certificates of hire to the of 154 and number zone licenses to the number 38of issued, yielding gross were a revenue of in the $781,982.00; that year pleasure calendar vehicles and trucks to the number 52,776, cycles of motor to the number of and dealers the of registered, number 360 were motor vehicles the number 6,983 of were re-registered, operator’s and and chauffeur’s licenses to the 59,507, number of certificates of hire to the number of 173 and zone licenses yield- number of 50 issued, were ing gross a $938,860.30 showing revenue of an in increase —thus registrations 8,895 over of pleasure vehicles and of trucks, 20.2%, 1,575 re-registrations or or 8,610 and '29.1%, operator’s and chauffeur’s licenses 16.9%, or and an increase in revenue $156,878.00 20%; or and that mention in- the above crease in required volume of business an increase the number employees clerks and over employed 1922 to number properly care for the same. during
5. That season of 1923 violations multiplied motor laws increased; during vehicle and that year killed, 1,060 persons persons were injured, were and $229,290.00 property damaged value of was in automobile figures an accidents, show approximately increase of 50% approximately, during 1922 and of over 1921; over that 100% 4,200 reported required 1923 over accidents automobile were by law, reported 1922; an over increase of 700 accidents for inspectors employed by that small number examiners and cope in 1923 with, prevent relator were unable to or vio- laws, motor negligent lation of the or the vehicle careless and operation causing accidents, presence of automobiles persons driving highways intoxicated motor vehicles safety public the State; using highways that the and demanded will continue to a much more demand stringent through enforcement increased number in- spectors examiners; and that the violations motor vehicle laws paragraph existing this referred was condition present throughout part latter the summer of through especially year. the month of October department 6. That the cost of the for the year ending 30, 1922, fiscal $67,677.10, June was and the cost of ending year 30, 1923, fiscal $65,447.27; June Assembly General of 1923 for said year ending 30, 1924, the fiscal $66,000.00, June the sum of year ending for the $68,000.00, June the sum of $1,500.00 years addition the sum of of said for each salary registrar. relator as to the in-
7. That the aforesaid were will be adequate department during for the administration of said year during respectively,, current fiscal year the next fiscal and the appropriation for the current will be exhausted later than March interruption that an of the service department will disorganiza- result the disbursal and working tion force, loss of experienced service, re- *8 sumption inadequate work of and help, inefficient the dissatisfaction and of public inconvenience the with in- and expense creased to the State. relator,
8. That the when confronted with the conditions during above mentioned the summer early and fall of brought same the consideration the of emergency the by section 38 created of number 7 of the Acts 1923; that the aforesaid conditions and facts were laid before and considered emergency said board on October 1923, and after full con- thereof, sideration said adopted unanimous vote a reso- the the relator furnished to copy of which was lution, was as follows: Treasurer; said resolution that State large been a and unfore- “Wheras, appears there has year, registered this over last motor number of seen vehicles during next the large increase probability of a further with the last wholly unexpected by year, fiscal which increase employees number Legislature, in require and will an increased regis- prompt and efficient service said to render the enforcement delivery plates number tration laws, and approxi- Whereas, appears there have been It further reported mately thirty-four accidents hundred automobile during year, resulting in Secretary present calender of State forty fatalities, emphasize the lack of and which serve to adequate enforcement, law need ap- an -increased Whereas, appears that, It further unless efficiency propriation made, and the enforcement registration crippled, now bureau will be d Therefore, Resolved, Be It That the board create 1923, duly assembled section 38 the call of number 7 of Laws of Vermont, Excellency, on His deem Governor which premises above set forth to constitute provide, and said board should thirty-two ($32,000.00) That sum of dollars thousand forty-two thousand year, for the current fiscal sum of year ending July ($42,000.00) dollars and hereby appropriated apart years same are and set for the named, general of the out funds State of Vermont or Secretary appropriated, otherwise for the fund not use of the department, including State enforcement come jurisdiction, such laws of State as under his and said hereby sums are added the sums section 59 (a) 1, (a) 2 and 59 of number 28 of the Laws respect- ively, and
That the be, credit of and it is hereby pledged in a exceeding sum not sums named the last preceding para- graph purposes named, for the therein and that the State Treas- provide purposes urer funds for the herein indicated, not to ex- hereinbefore named, ceed sums and said hereby Treasurer is to furnish pay authorized out sums, said or so much thereof needed, on the warrants Auditor, hereby Auditor is authorized to draw, requisi- tion of State.” *9 v. GATES. GROUT sum Assembly appropriated the 9. That “The General - for each fiscal emergency board
$100,000.00 year the uses said to so thereof period, or much of the current biennial ’’ necessary purposes. be November, 1923, said State day That the 30th 10. on his resolution, books Treasurer, pursuant to said credited registration for automobile $32,000.00 sum of relator said day year ending 30, 1924, and that on the first for the fiscal June said furnished the relator month thereafter Treasurer has each showing such credit. the defendant a record regis- That, 11. the law under which automobile because of necessary year, it is expire trations on December each plans for, of, to administer affairs and make than department on the basis of the calender rather covering year; any program fiscal law enforcement the auto- that running beginning overlaps mobile season Vermont each year, expenses covering any fiscal and the one automobile run- ning season, must, necessity drawn from be years. necessary plan of two fiscal That it is time and to take in advance, years, laying far at a law over least two out program; program enforcement if enforcement is to put year 1924, paid into effect for must for out year’s appropriation appropriation the current fiscal and the year beginning July for the fiscal 1, 1924.
12. day January, 1924, That on the 29th relator informed the defendant that he would audit and decline to payment issue his warrants of bills connected with the auto- paid appropriation to be from mobile said $32,000.00 referred to in said resolution of said board, day writing and that he was His a letter Excel- lency, Governor; gave said then defendant and there him copy Governor; of said letter to the that the defendant persists still in his intention decline to so audit and issue payment his of such bills. mentioned, letter stated In the Governor Auditor
(cid:127) why he his length reasons refuses audit issue war- at stated. above of bills payment rants persists refusal and the defendant his That if the payment from appropriation a bill for delays, until relator n and action thereo specifically de- presented $32,000.00 *10 Court, irre- in seeking relief this defendant, by the dined wherefore aforesaid, for the reasons result, will parable injury and ought settled complaint to be involved this the matters original said the time when by prior Court to this determined the de- the time when prior to exhausted appropriation of in payment actually his warrant shall refuse to issue fendant depart- your expenses said for of any requistion of relator emergency board. appropriation from said of the ment adequate remedy at That the has no other rela.tor ' man- of prayer complaint The that a writ equity. or in of Accounts, may’ from to the Auditor issue this Court of damus auto- $66,000.00 commanding him, appropriation after of for year ending for shall registrations June mobile exhausted, payment issue his warrants in to audit and have been Secretary of connec- proper of bills of the relator as all appro- said $32,000.00 tion from automobile appropriation priation emergency board, and after said of registration of end- $68,000.00 for automobile for the fiscal exhausted, audit issue ing 1925, shall June have been his payment bills the relator proper warrants of all of depart- of with the connection emergency $42,000.00 appropriation ment from said of the board. allegations complaint, defendant, answering
The of allegations 4, 5, 6, 10, 11, 12, paragraphs admits the of allega- answering, says and 14. Further defendant that paragraph complaint tions 9 of are law; of matters of appropriated to the of said by law there are no funds use that fiscal'year of emergency either the current biennial board now decline the defendant does will continue to- period; that any requisition of payment issue his warrants of decline to of said emergency relator from so-called shall Court; he thereunto and until commanded this unless alleged complaint in the admitted the facts emergency amount an unforeseen not within the answer do 39 of T of the Acts meaning section number- of and the treasury from the under and in pursuance withdrawal is contrary said resolution of to Section Constitution; 2, defendant is without Ch. expenditures authority to issue made said emer- including said Acts of geney board under section expenditures purporting to be authorized said resolution that board. C. board was created section J. Watson, Governor, 7 of the consist
38 of number Laws Senate, the chair- the chairman of finance committee of the appropriation Senate, man the chairman of the committee of ways representa- means committee of the house appropriation tives and the chairman committee (with proviso notice material representatives; house further). The shall be chairman and the commissioner Governor secretary required finance the of the board. The latter *11 keep in meeting kept minutes of each a for of board book that By 39, purpose public such minutes shall a section be record. authority any expenditures “Said board have to shall make by emergencies may pledge necessitated unforseen the credit of proceeds for The section the same.” then specific relating repairing rebuilding buildings provisions to or property damaged by by or fire, pro- of the followed money “All provisions visions: sums of used under the this of hereby section in appropriated purposes are for the mentioned appropriations this section. Such monies and shall be used may said board direct. Said board shall render an itemized statement, accompanied by vouchers, expenditures of the of all money print such and the Auditor of Accounts shall such state- ’’ report. by ment in his biennial And section 16 of number 8 of year, by the laws of that section 39 of Act number 7 was amended adding a new sentence to read not as follows: “Said board shall expend than any more one hundred in thousand dollars one ’’ year. emergency The professed board act upon provisions to quoted above from section in 39, adopting its resolution of 26, (fully October set forth in case), statement of in subsequent its proceedings thereunder. Whether the board way provided acted in that section in cases of un- emergencies, foreseen is discussed further on. While the defend- allegations ant admits of complaint in para- contained graphs 4, 5, 7, 8, 10, 12, says he allegations paragraph general “that assembly appropriated the sum emergency for each board $100,000.00 to the uses of period, so much thereof year biennial current law, emergency matters necessary purposes,” are to the no that law there are funds and asserts the current biennial either fiscal use of board for issue, period; he and will to decline now declines continue requisition relator from payment any his of the warrant he said board unless until said so-called The defendant shall be thereunto this Court. commanded arguing ease that the further asserts his answer and alleged complaint the answer do facts in the and admitted meaning within emergency amount an unforeseen his said and asserts in answer that the withdrawal of section treasury from and in resolu pursuance under said contrary 27, Chapter II, tion of the section board is authority Constitution; and that the defendant is without expenditures to issue made under Acts including expenditures section of number purporting authorized aforesaid resolution. proper construction provisions section strength professed act, of which paramount importance ques-
therefore of in the solution of the before tions us.
[1] Adverting to the quotations given from section it will provisions be noted that those has limited the statute thing particular to be mode, being so, done in this a negative cludes Raleigh other mode. & Gaston R. R. Reid, Co. v. Wall. 20 L. ed. 570. principle The same *12 laid down in Stevens, Smith v. 10 Wall. L. 19 ed. where the Court said: argument “It needs authority no or show statute, having provided way in which these half-breed by lands sold, could be necessary implication prohibited their sale in any way.” other In Zottman San v. Francisco, 20 Cal. court general said: “The rule is and.applies to the cor porate authorities all municipal bodies; where mode in power any given their subject can be is pre exercised by scribed their charter, the mode must be followed. The mode * * in such cases constitutes the power measure of the *. Aside from the mode designated, there is a power want all on the subject. This is too obvious require argument, and so are v.
448 ’’ adjudications. all Rug To the same are Thomason v. effect gies, 465, 474, 20; Co., 69 Cal. 11 Heidelberg Pac. v. St. Francois 69, 75, 914; Douglas County Keller, Mo. 12 W. 43 S. v. Nebr. 635, 644, 62 60; Page Belvin, N. W. 14 E. Ya. S. Taylor 443. And in Taylor, W. Va. 19 Ann. Cas. it was held that when a a thing statute a to be done in limits particular manner, by prescribed or á person tribunal, or there implication is an that it shall be nor manner, no other done person a different or tribunal.
[2] The making of expenditures appropriating public money things. are different expend former the “act of ing; laying a money; out of disbursement.” The latter is: “to apart for, assign set to, particular or person a use, or exclusion of all others.” Webster’s New Int. Dict. Honiss, See Brown v. Law, 501; N. J. Bailey, Niles School v. Mich. Ains Dean, worth v. 21 N. H. 400.
[3] follows that section 39 the board is authorized to any expenditures make necessitated unforeseen emergencies, but it charged alone is responsibility making such expenditures, which it cannot delegate; and so board is not appropriate authorized apart set money to some department or officer to be expended, although so may person select a connected therewith expendi to make the tures under its direction as hereinafter stated.
[4] This is made certain
from the
facts that
tlie same
section of the
all
statute
money
sums of
provi
used under the
sions of that section
thereby
were
specifically appropriated for
purposes
mentioned
section;
moneys
that such
appropriations shall be
used as said
direct;
that said
“expend”
shall not
than
more
one hundred thousand dol
lare
year;
one
and said board shall render an itemized
statement, accompanied by vouchers,
all
expenditures
print
the Auditor of Accounts shall
such
such
state
report.
in his
one
provisions,
ment
biennial
These
taken with the
emergency ex
empowering the board to make
unforeseen
opera
mode of
given no construction as to the
penditures, can be
doing
statute,
provided
without
vio
tion,
other than
every
given, if
possible,
to be
requiring
the rule
effect
lence to
Rutland R. R.
State v.
statute.
word, clause, and sentence of
*13
449
v.
Co.,
508,
Co.,
197;
81 Vt.
71
National Acme
95
Atl.
Petraska v.
Vt.
[5,
hardly
necessary
statute
seems
to state that the
6]
necessarily
does
contemplate
of the emer
members
gency board,
them
emergency exists,
when
unforeseen
shall
perform
making
selves attend to or
the detailed work
unforeseen emergency expenditures.
bemay
Such detailed work
done
through
agent or agents,
personnel
its
being
thereof
within the control of the board. But
statute
does contemplate that, in
economy
gov
and
interest of State
ernmental efficiency, the board shall take
administration
particular
moneys
work there
it,
entrusted
and that the
and
shall
general
be
used under the
direction
control of
the board and
designation;
official
statement, accompanied by vouchers, required by
itemized
last
section,
clause of the
shall be rendered to the Auditor of Ac
itself
counts
the board
its name. Thus
construed
Legis
statute carries into effect,
should,
as it
the intention
object
accomplished
lature
to the manifest
reference
by it.
In
Guard,
re National
71 Vt.
[7] In this connection must we not overlook the rule mak ing duty adopt it our provisions a construction of the of sec tion 39, if possible, which will make them consistent with the Co., In re Barre Water 9 Constitution. Vt. 20 Atl. Cady, Lang, Admr. 195; L. R. A. 95 Vt. Atl. Supreme States, speaking through of the United Mr. Court White, says elementary this “plainly Justice rule must susceptible mean that a statute is constructions, where of two grave questions and doubtful constitutional one of which arise duty questions other of which such are avoided, our adopt the latter.” S. Co, is to U. v. Delaware & H. S.U. 53 L. ed. 849. To the effect Carey same are v. South Dakota, 250 U. S. L. ed. Stand United States v. Brewery, ard 251 U. S. 64 L. ed. 229.
[8] This rule of construction is peculiarly applicable provisions of the statute under consideration. The Constitution (Ch. 27) II, provides: Sec. “No shall drawn out of treasury, first legislation.” unless act of requirement The essential adherence to this constitutional by Highgate shown successful endeavor of the Court *14 v.
450 in bring there State, 898, 7 Atl. Vt. it is seen already said, within From what we have volved it. money provisions section that all sums of used under specifically appropriated that section 39, are the law of consequently are within purposes mentioned, and therein But purview set forth above. of the clause the Constitution power appro it follows that the board was without priate apart, as it its resolution and set undertook to do $32,000.00 the sums of for the current October fiscal $42,000.00 July 1925, out year, year ending for the fiscal any not otherwise State or funds general funds of of the Secretary of the auto of the appropriated, for use appropri adding said to the sums department, and sums mobile the Laws 59, (a) 1, (a) of number in section ated attempted by that board were These acts 1923, respectively. lawful character, power essential to their legislative Assembly. exclusively is with the performance was and General said, however, It is that the act "which the relator [9, 10] defendant, a compel, being duty, a ministerial seeks mere officer, question raise as to the subordinate executive cannot a constitutionality of law or under which it claimed laws duty performed. is, True it is to be was said Clement Graham, 1913E, 1208, 78 Vt. Atl. Ann. Cas. depart a office Auditor of Accounts is branch the executive held, incum true, it is that the State, and also there ment of purely public ministerial certain duties the officehas bent of his duties office; to his but not all of appertain perform, officer, elected He is constitutional are of that character. ticket as biennially by the of the State the same freemen Lieutenant-Governor, the of State Governor, is the Howard, Vt. This said in and the Treasurer. Court the Auditor’s primary purpose “The 6, 74 Atl. that: State,” that “the safeguard the funds of the is to office ’’ by statutory powers provisions. Auditor are determined regard duty said in “A ministerial is further that case: is one nothing simple left discretion —a and definite ing which law, arising duty, imposed by under conditions admitted or * * * duty requires proved to exist *. If the is one that judgment performance in its ministerial but exercise of GROUT v. GATES. A discretionary. discretionary duty may judicial, be executive or according subject-matter.” to the nature of the respect
The character the duties of the Auditor in question, may here be determined an examination of the provisions certain sections of Act number of which Act sec- tion 39 now under consideration a part: By forms section “No expend shall an expenditure authorize year;” excess therefor for of the amount gross section “The amount in their received, by every capacities, board, official department, administrative employee, source, officer or from whatever shall be paid forthwith ** * *15 treasury moneys into the State Such shall credited to be *. may designated such or funds as or fund are now hereafter be deposit Money for paid moneys belonging the thereof. all so and expended to or for the use of the State shall not be or applied by any department, board, employee, except officer or in pursu- ance an appropriation by of made upon law and of warrant the Auditor;” by in 27, “except section the of case funds held moneys in trust, the State paid treasury no shall of be out of the except specific the appropriation on made at each biennial general special assembly of session the session within the period. The Auditor Accounts biennial of shall not draw his upon State, of except warrant the treasurer the payment the duly specific appropriations pursuance of made in of pro- the section;” “in visions of this and section 40, addition to the prescribed by law, now shall duty duties be the of the State keep an Treasurer * accurate account in books of account, to * * * moneys of all received the State from whatever moneys source, and all withdrawn treasury of from the the of upon warrants issued the Auditor Accounts, together of with an accurate account the general of sums by the assembly, purposes and the which the appro- same been have and shall priated, the treasurer furnish a record thereof treasury the amounts withdrawn from in pursuance each specific appropriation, the balance thereof remaining, together other information as required, be to the Auditor monthly, Accounts, day on the first of each month. Such shall controlling statement be conclusive and Auditor against Accounts, issuing the amount specific appropriations. kept by The account so the Treasurer be shall GROUT v. only kept by accounts purposes State for such and shall controlling departments
be all upon conclusive and officers.” authority departments
The limitation of the make ex- penditures, prescribed section con- the inhibitions conformity tained sections 13 all each and are forbidding clause of the Constitution money to be drawn out of treasury appropriated by unless first legislation, act of no statutory provisions disregarded one those can be without violating respect. this, in this In addition Constitution no if his action Auditor acts without warrant Howard, supra. effect. State v. foregoing together with information re- provisions given
quired by day section 40 on the first each month Auditor, Treasurer to the constitute a three-fold safe- guard State, performing the' duties funds of consequent upon Auditor, think it thereon devolve we required judgment, clear that he to exercise and therefore his discretionary. Howard, supra. duties are See State v. questions argument that defendant not understand We do he constitutionality consideration; statute under but bearing has a on the con- effect, Constitution asserts, in given statute, and also which should struction With soundness asser- it. this validity acts done under no for doubt. seem to be room tion there should urged pay Auditor refuse cannot [11, 12] against board’s award be requisitions ment of *16 the the credited to books show amount (a) the Treasurer’s cause such has been certified to the department, and credit including each month since and day of the first Auditor on conclusive the Treasurer are acts of (b) such last; and December fallacy argument this The premises. in the Auditor upon the 40, by which the section provisions of particular from the is seen the respect are in this defined also Treasurer the duties of by him the of the statement conclusiveness the extent contrary, that presumed it is Nothing appearing to Auditor. Treasurer and kept accurately were books Auditor, all in by him the ac made were monthly statements being so, of that This section. requirements with cordance moneys all showed the source Auditor to the the statements upon warrants moneys withdrawn all State, by received GROUT v. together issued tbe Auditor, an accurate account of sums appropriated by general assembly purposes for and the which the same were appropriated, and the amounts withdrawn in pursuance specific of each appropriation, and the balance remaining. thereof Such statements must therefore have shown that the turned over to the automobile under the resolution of October emergency board, was not appropriated by Assembly, the General at but instead was tempted be appropriated only. that board “Such state ment,” says statute, “shall on controlling conclusive and Accounts, the Auditor of in issuing against the amount specific appropriations.” observed, As this attempted before appropriation by emergency authority was without law, and consequently was law force; without is and there no authorizing the against Auditor to issue his warrant or warrants it in payment any requisition requisitions relator. “A writ of can performance mandamus enforce only exist ing duties. can neither a require new duties nor create public officer has duty more than made it his to do.” Page McClure, 79 Vt. 64 Atl. remedy 451. Such a only legal available right where there is a clear without any ade quate legal remedy. Bankers’ Ins. Howland, Co. v. Vt. Life 1, 48 Atl. 57 L. R. A. 374.
[13] On careful examination of the question, we are opinion operating that the effect of section 39 of number 7 is number that year. affected section laws of foregoing [14, is determinative of this case and 15] ordinarily complaint will have to be dismissed. would We inquiry considering question end our here without presented argument an existence of furnishes the powers lawful basis for the exercise of granted first of section clause 39 of the statute. great importance public in the is one of to-the question But the fully State, having of the affairs of it been administration indicate the thought best to views on argued, Court think majority A and so hold that the dis record question. contemplation emergency in the statute. closes unforeseen emergency- regular appropriation when the In of such view exhausted, can step the- board in and current necessary expenditures carrying the work make the lawful *17 ANDREW BUCK, APT. through agent agents as aforesaid, during the emergency; of the and for continuance purpose may expend part $100,000.00 may required. And this action, the upon now, board can' end that resolve to the department may of the affairs conducted reliance said action. importance difficulty questions here involved
are such that complainant justified bringing this ac- tion, equally justified and the defending defendant was We it. expense sides, therefore assume that including on both counsel fees, be, they should, will paid by the State.
Complaint dismissed, without costs party. to either Note —All the Justices main portion concurred opinion. question On emergency existed, whether an only decision was a majority, but the Court has failed designate which of the Justices concurred or dissented phase of the case. Apt. Andrew
William Buck, Maurice February Term, 1924. X, Watson, Powers, Taylor, Slack, Present: Butler, C. JJ. Opinion March filed 1924. Peace—Failure to Enter on County Time in
Justices of Properly An Appeal May Taken Cotiri Be Waived—Time Appearance Appellee to Enter to Dismiss Ap- —Motion peal Appea/rmce—County Court Buie — appeal justice from court 1. Where was claimed and allowed judgment by within hours after the two rendition justice, appellant in accordance with L. G. the failure of appeal county to enter the court within the time fixed being waived, G. L. defect that could be did not affect