51 P. 744 | Idaho | 1898
This is an application for a peremptory writ of mandate to compel the state auditor to issue a warrant in favor of the petitioner for services rendered under and by virtue of the provisions of section 1685 of the Eevised Statutes of 1887, which is as follows: “The controller or attorney general may employ other counsel than the district attorney and the expenses must be paid out of the territorial treasury.” It is admitted that the petitioner was employed and rendered services for the state of the value of $750, and that the state auditor drew a warrant on the state treasury for $250 of that sum, and delivered the same to the petitioner, and that there remains due and unpaid to the petitioner $500, the balance of said claim. The authority of the auditor to make said employment under the provisions of said section is conceded by the attorney general, but he denies the authority of the auditor to issue a state warrant in payment of said claim on the ground that no appropriation has been made out of which said claim can be paid, while the petitioner contends that the last clause of said section makes such appropriation. The question for decision is: Does the last clause of said section, to wit, “and the expenses must be paid out of the territorial (not state) treasury,” make an appropriation? Section 214 of tire Eevised Statutes is as follows: “In all eases of specific appropriations, salaries, pay and expenses, ascertained and allowed by law, found due to individuals from the territory, when audited, the controller must draw warrants upon the treasury for the amount; but in cases of unliquidated accounts and claims, the adjustment and payment of which are not provided for by law, no warrants must be drawn by the controller, or paid by the treasurer until appropriation is made by law for that purpose, nor must the whole amount drawn for and paid for any purpose or under any one appropriation ever exceed the amount appropriated.” Said section of the Eevised Statutes, as well as section 13, article 7, of