Martin v. Francis

13 Kan. 220 | Kan. | 1874

The opinion of the court was delivered by

Valentine, J.:

This is an action of mandamus brought originally in this court. There are several questions involved in the case, but for the purposes of the case we shall assume that all except one should be decided in favor of the plaintiff, and that one may be stated as follows: Can any money belonging to the state, rightfully in the state treasury, and over which the legislature has the rightful control, be drawn from the state treasury except in pursuance of some act of the legislature passed for that purpose within one year prior to the attempted drawing of the money? We must answer this question in the negative. The question arises as follows: The superintendent of insurance issued a warrant in favor of the plaintiff upon the state treasurer, which warrant reads as follows:

“Insurance Fund, 1 Insurance Department,

No. 196. J Topeka, March 10th, 1874. Treasurer of State of Kansas:

Pay to Geo. W. Martin, or order, the sum of forty-three dollars, out of any moneys in the State Treasury belonging to the ‘Insurance Fund/ as provided by Chapter 93 of the Laws of 1871. [seal.] Ed. Russell,

$43.00. Superintendent of Insurance.”

The plaintiff presented this warrant to the state treasurer for payment, and the state treasurer refused to pay the same, and indorsed thereon the following words, to-wit:

“Presented for payment June 22d, 1874. Not paid, for the reason that no appropriation was made by the legislature of 1874 providing for the payment of this class of warrants.

“John Francis, State Treasurer.”

Now, admitting that everything must be decided against the treasurer except that the legislature failed to make an appropriation for this class of warrants, and then should the treasurer have paid said warrant? We think not. Section 24 of article 2 of the constitution reads as follows:' “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law; and no appropriation shall be for a longer term than one year.” This section would seem to be decisive of the question now under consideration. “No money shall be drawn,” etc. This would seem to mean that no money that may ever rightfully be in the state treasury shall be drawn therefrom except in pursuance of an act of the legislature specifically authorizing the same to be done, passed within one year prior thereto; and it certainly does mean so unless some other provision of the constitution may be found which would tend to limit or modify the meaning of the language used. Now, we shall not say that there is nothing in the constitution which would tend to limit or modify the meaning of said language; but we think there is nothing in the constitution that would tend in the least to limit or modify the meaning of said language so far as it has any application to this particular case. The language of said section is broad enough to cover the insurance fund as well as every other fund, and there is nothing in the constitution that we are aware of that would tend to withdraw the insurance fund from its operation. Hence the provisions of • said section must apply to the • insurance fund, whether they apply to every other fund or not. It seems to be admitted by all parties that said insurance fund belongs to the state, and that it is rightfully in the state treasury. Indeed, this action of mandamus against the state treasurer to compel him to pay a warrant drawn on the state treasurer for money in the state treasury is founded upon such a theory. It is claimed, however, by the plaintiff that the words “no money” as used in said § 24 should be construed to mean “no money raised by taxation.” But if the framers of the constitution had intended to have given to said words such a meaning we think they would have said so in express terms; or at least they would have placed said § 24 in the article on finance and taxation (art. 11,) instead of placing it where they did. The state may and does receive money from various «other sources than that of taxation; and said section being isolated as it is, and broad in its terms, was undoubtedly intended to'apply to all money raised from every source except such money as may be excepted from the provisions of said section by some other provision of the constitution. As said § 24 was not inserted in the article of the constitution concerning finance and taxation, it would certainly be as reasonable to say that it did not apply to money raised by taxation as to say that it does not apply to the insurance fund. But is not the “insurance fund” raised by a species of taxation?

The writ of mandamus will be denied, and judgment will be rendered for the defendant for costs.

All the Justices concurring.