159 P. 625 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
Counsel for defendant claim: (1) That without the consent of the county the state insurance commissioner was not authorized by the act to make a contract for and incur liability on behalf of the county for the audit of its books; and (2) that plaintiffs’ remedy, if any, is by writ of review to re-examine the decision of the county court in refusing to pay the claim.
“From and after January 1, 1914, the state insurance commissioner shall at least once each year make a careful and accurate audit of the books and accounts of each institution or officer, expending state money, and of the books and accounts of each county of the state”: Section 10.
“The expense of each such audit shall be certified by the state insurance commissioner to the county of which such audit was made, and shall be paid by such county direct to the person making the audit”: Section 11.
“The expense of auditing the books and accounts of the institutions and officers expending state money shall be paid by the state from the funds appropriated by this act, upon the proper voucher of the state insurance commissioner. An audit of the books and accounts of any city, county school district, road district, port or other taxpaying district for any year or years before or after 1914, may be made by or under the supervision of the state insurance commissioner, upon proper assurance that the expense thereof will be paid by the county, city or other branch of government or the deposit of a sufficient sum therefor, by any individual”: Section 12.
After providing for the manner of payment of expenses relating to state accounts, in Section 12 we find a proviso that:
*447 “An audit of the books and accounts of any city, county school district, road district, port or other taxpaying district for any year or years before or after 1914, may be made by or under the supervision of the state insurance commissioner, upon proper assurance that the expense thereof will be paid by the county, city or other branch of government. # * ”
This quoted part of the section contains all the authorization found in the law for the experting of county books “under the supervision of the insurance commissioner” as distinguished from being done by that official.
It appears that the lawmakers had in mind that in many of the counties of the state an audit of the affairs of the county had already been made up to about the date of the passage of the act, and, by the latter part of Section 12 it was intended to provide for the ex-perting of county books by the insurance commissioner, or under his supervision, for years prior to 1914, dependent upon the assurance of the county authorities that the expense would be borne by that branch of the government. The provision for such an audit after 1914 is believed to apply to any city or taxpaying district other than a county, or to some special audit of county business, such as the expenditure of a large fund for some improvement, which its officials might desire to be experted without waiting for the annual audit. This view is strengthened when we remember that the law clearly contemplated that the system should be in vogue so that the financial affairs of the state and counties should be under the official eye of the insurance commissioner from and after January 1, 1914, and the experting of the books of other taxpaying districts left conditional under the latter part of Section 12. By Section 14 the commissioner was
“A proviso is a clause added to a statute, or to a section or part thereof, which introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the*449 general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent”: Black, Interpretation of Laws, § 107.
“The natural and appropriate office of a proviso to a statute, or to a section thereof, is to restrain or qualify the provisions immediately preceding it. Hence it is a rule of construction that it will be confined to that which directly precedes it, or to the section to which it is appended, unless it clearly appears that the legislature intended it to have a wider scope.
“The general intent will be controlled by the particular intent subsequently expressed”: 2 Lewis’ Sutherland, Stat. Const., § 351.
If the portion of Section 12 to which we have referred had been introduced by the word “provided,” while it would not have changed the legal effect thereof, we doubt if this litigation would have resulted.
Affirmed. Rehearing- Denied.
Rehearing
Denied September 26, 1916.
On Petition for Rehearing.
delivered the opinion of the court.
Passing by the mere disputatious assertions which are of little assistance in the construction of a statute, we note that the petition for a rehearing in this case is based largely upon the theory that the court found that the state insurance commissioner was not authorized to audit the accounts of a county of the state for the year 1914 and collect pay therefor from such county. This is not the conclusion indicated by the former opinion. "What we held was that the claim, as shown by the record, was not for the services of that official, but for those of an entirely different person; that the audit of the books of Douglas County was not made by a state official or contem
“I would consequently advise that under said Chapter 286, it is your duty to audit the accounts of each county annually, and it is the duty of the several counties to pay your deputy making such audit, and that the audits of the lesser governmental units of the county are permissive, but not compulsory.”
. Suffice it to say in regard thereto that in so far as the case under consideration is concerned, the audit of the accounts for which compensation is claimed does not appear to have been made in accordance with such advice. The legislature will soon be in session, and if a state officer has been' misled by an ambiguous statute, it is in its power to prevent any loss from being suffered.
After a careful examination of the petition hereiu, and also of that in the companion case of Berridge v. Marion County, ante, p. 391 (159 Pac. 628), we adhere to our former opinion.
Aeeirmed. Rehearing Denied. '