Application is made to this court for a writ of mandate against the defendants as members of the State Board of Examiners, directing said board to pass for audit a claim' of plaintiff presented to such board.
It appears that plaintiff was the duly elected, qualified, and acting district attorney in and for the Fifth judicial district of this state from January 1, 1917, to January 1, 1921. That district is comprised of five counties. It was necessary for plaintiff to travel to the various county seats in the discharge of his official duties and remain away from his place of residence during such time, on one or two occasions for several weeks continuously. It is set out in the petition that plaintiff “actually paid out for meals and lodging While traveling and attending court at the various places in said district the sum of $1,109.55.” A detailed and itemized statement of such expenditures is attached to the petition. It is also made to appear that the petitioner presented this statement or claim to the defendants, as the State Board of Examiners, whose duty, it is alleged, was to pass such claim for audit, and that said board refused, and still refuses, to pass the same for audit.
The defendants demurred to the petition, alleging as grounds for demurrer that the same does not state facts sufficient to constitute a car^se of action against them. The facts stated in the petition being by the demurrer admitted, the
The law creating the office of district attorney was enacted by the Legislature of 1899 (Laws 1899, e. 56). The act defines the qualifications and duties of the incumbent of such office, and fixes the annual salary. Section 13 of the act, so far as material here reads as follows:
“District attorneys shall be deemed to be state officers, and tbeir salaries and such expenses as are provided herein shall be paid by the state in the manner prescribed'for the payment of judges of the district court, and they shall receive the same mileage as is provided for such judges, and their salaries shall be as hereinafter provided, which they shall take in lieu of all other compensation.”
That part of the act has never been repealed or amended, and is still in force. It is now section 5772 of the Compiled Laws of the State of Utah 1917.
As will be seen, that section makes the district attorney a state officer. Section 20 of article 7 of the state Constitution provides that the
“Governor, Secretary of State * * * and such other state and district officers as may be provided for by law, shall receive for their services quarterly, a compensation as fixed by law. * * * The compensation for said officers, as prescribed in this section, and in all laws enacted pursuant to this Constitution, shall- be in full for all services rendered by said officers, respectively, in any official capacity or employment during their respective terms of office. * * * The Legislature may provide for the payment of actual and necessary expenses of said officers while traveling in the state in the performance of official duty.”
Manifestly, the Constitution makers, by the last quoted sentence, did not intend to make it obligatory upon the Legislature to provide that the expenses of all such officers
It is contended on the part of the petitioner that, the statute creating the office of district attorney having made the incumbent of that office a state officer, he is entitled under the above provision of the Constitution to have his “actual and
It is argued that it is apparent from the language found in the general appropriation bills of subsequent Legislatures it was evidently the intent of such Legislatures that district attorneys should be allowed their actual and necessary expenses while traveling in the discharge of their official duty. In the general appropriation bill passed by the Legislature of 1901 provision is made for the salaries to be paid district attorneys, and immediately following such provision a further appropriation is made in the following words:
“To the several district attorneys for actual and necessary traveling expenses for the years 1901 and 1902, or so much thereof as may be necessary.”
The same language, or, language of the same intent, is found in the general appropriation bills passed by subsequent Legislatures as late as 1911. It is needless to
Since its enactment, however, the act has received a continuous contemporaneous construction by the executive officers of the state. No district attorney has ever
The judicial district in and for which petitioner was district attorney is composed of five counties, and, as set out in his petition it is expensive to travel from one county to another, which must be done in the discharge of his official duty. Therefore there would seem to be much
The alternative writ heretofore issued is vacated, _ and a peremptory writ denied.