11 Colo. App. 415 | Colo. Ct. App. | 1898
delivered tlie opinion of the court.
Presumably on a sufficient and proper petition filed by the appellee, the district court issued its alternative writ of mandamus to the then state auditor, Clifford C. Parks, directing him to show cause why a peremptory writ should not go, commanding him to issue a warrant for $649.32, as and for money due Hays as an assistant inspector of -metalliferous mines.
The attorney general on behalf of the' officer who represents the state on this appeal presents a number of objections to the alternative writ as a sufficient statement of a cause of action. The practice which the applicant pursued is attacked in divers ways, but except for its possible usefulness in subsequent proceedings by way of establishing it, this query could be passed without notice. Since as we view it, the case turns on the construction of some statutes and the sufficiency of the writ as a pleading in one particular we shall only consider these matters. In the statement we shall only
Therein it was clearly decided that under the statute creating the office of inspector of metalliferous mines that officer could only receive his salary and expenses out of any moneys which might be appropriated for that purpose. These words of limitation were held determinative of the legislative purpose, and that while no set form of words was essential to constitute an appropriation, it must appear that there was the legislative intent to make it in order to entitle the party to receive any portion of the public funds in the payment of his salary. It will be observed this was a suit by the inspector to recover his salary for a portion at least of the same period for which the salary is claimed by the relator to have been earned by him as an assistant inspector under Acker. It is therefore clear that since there was no appropriation to pay Hays’s salary for the years 1893 and 1894 until the act of 1895 was passed, Hays was without a legal claim and was without the right to maintain mandamus against the auditor to compel the issuance of a warrant entitling him to draw the money from the public treasury. We regard this matter as one of great and controlling significance in the interpretation of the subsequent statutes.
In 1895 the legislature attempted to make provision for this deficiency in the public revenues and to liquidate the claims of the public officers who had been without salary, and to pay the expenses of the various public institutions which had been without funds, and to liquidate the debts which had been incurred in carrying on the affairs of the state. The first act that was passed was approved April 8,1895. It is chapter 77, Session Laws of 1895, page 178.
In general terms that act provides for the creation of an additional bonded indebtedness. There is a limitation on the power of the legislature to create a bonded debt, but it need only be referred to in this general way because its construction is not involved since it has practically been determined
The act of 1895 is attacked by the attorney general as being unconstitutional because many of the matters provided for by the act including the one under consideration, do not come within the definition of a casual deficiency. We decline to consider the question, nor do we regard it as necessarily or actually involved. In that decision the very matter now being determined was presented to that court. The governor under his authority put a question to the supreme court involving part of these identical matters of salary and expenses. Having these questions before them, the court decided that upon the facts stated in the communication, there was at the time of the passage of the act a casual deficiency which conferred on the general assembly the authority to contract a loan by the issuance of bonds to pay the indebtedness referred to. Just exactly how far that court intended to go, and whether all matters contained in the question can be said to have been conclusively answered by the court’s response we are not able to determine. Since the matter of the salaries of the inspector and his assistants was involved and presented by the question, we must assume the court determined that the nonpayment of those salaries did create a casual deficiency for which the legislature could provide by the creation of an additional indebtedness covered by the bonded issue provided for by the act. Since this is our conclusion respecting the force and effect of the response to the executive inquiry we decline further to discuss or pass on the question. We treat it as settled and the matter not open for consideration.
Bearing this in mind then, the act approved April 8, provided for the issuance of $175,000 worth of bonds. Accord ing to the terms of the first section, there was a casual deficiency in the revenue resulting in just claims against the state which were unpaid. The claims were recited to be for various matters including rent and publication, expenses of various boards and the salary and expenses of the metalliferous mine inspector and assistants. Thus by the express terms
We now come to the act of April 30, Session Laws, 1895, chapter 2, page 26. ■ The first section of this act appropriates out of the casual deficiency bond fund the sum of $9,708.34, or so much thereof as may be necessary for the purpose of paying the balance of the salaries and expenses of Acker, Goldsworthy and Hays. These are the terms of that section, except the concluding part of it, which simply provides for the division of that sum between the parties, and appropriates a certain amount to Acker, and to Goldsworthy and to Hays, as the same may become due. We do not regard this latter part of the section as at all significant for the purposes of construction. It is thus plain that the appropriation was out of a specific fund, and a specific fund only. There is no method of construction by which that appropriation can be held payable out of the general revenues of the state. It was a specific setting apart of so much of the deficiency bond fund as was necessary to pay the salaries and expenses of those three men. The division
It nowhere appears in the alternative writ that Hays ever presented any claim to the auditing board which was disallowed. According to the terms of the answer his claims so far as presented were allowed and certificates issued and the auditor drew his warrants and the relator got his money. If he had a claim for #649.32 he did not present it to that board and have it allowed or rejected. He never presented it, but he now insists notwithstanding that fact that since there was a difference between what he got, and the amount assigned to him in the division of the appropriation by the act of April 30, he is entitled to proceed against the auditor and compel him to issue his warrant therefor. This cannot be true if his claim was the subject-matter of ascertainment by that board. We have concluded that such is the necessary construction of the act and since in direct terms his claim was provided for by the act itself, and the other was but a necessary appropriation in order to legalize his claim, we conclude that the earlier act controls in the method of determination and settlement, and to it alone must we look to ascertain the relator’s rights. When we reach this conclusion the .balance of the way is tolerably plain. The supreme court very early decided the question thus presented. As commissioner I wrote the opinion but it is cited as a controlling decision of the supreme court because under the system then in vogue whatever the commissioners determined was subject to ap
By that decision it was determined that wherever a power was confided to a board and its determination was made a prerequisite to the validity of a claim, the party who sought to enforce it by proceedings against the auditor to compel him to issue a warrant must by the terms of his alternative writ exhibit the fact that he had procured the action and approval of the board, and must show that he had presented his claim thus duly approved by the auditing body before he could compel action. If our construction of the act of April 8, is correct the principle of that decision covers this case. There was an auditing board provided by this latter act to which was confided the full power of determination. Parties who had claims against the state were to be paid out of the proceeds of the sale of those bonds. Parties were bound by its provisions to present them to the board for allowance or rejection, and failing to do either one or the other or proceed against it to compel action, the parties are without remedy as against the auditor. This is entirely conclusive of this appeal. It nowhere appears that any claim which Hays had and presented to the board was disallowed. If the present claim existed he failed to exhibit it. Without the audit of that board he had no claim on the moneys resulting from the sale of those bonds covering the casual deficiency, which could only be expended and to which he was only entitled because of the special appropriation made applicable to that fund in order to provide ways and means by which his debt should be paid. No other result can be arrived at unless the act of April 30 is taken as a direct appropriation of $1,750 for Mr. Hays and that by reason of that act he was entitled to demand of the auditor the issuance of a warrant for that sum on no other voucher than his own and no other proof than his own claim that the sum was due him. We do not believe that this is an inevitable and absolute necessary construction and it ought not therefore to be adopted.
It was therefore incumbent on the relator by the terms of his alternative writ to state the character, amount, and source of the claim which he presented, and state, as in a pleading, his cause of action in order that it might be determined from the issues raised by the answer and the proof offered, whether the claim was or was not a legitimate one. This was a matter which the auditor had a right to consider and a right to determine. If he failed in his duty, the party must state a cause of action against him that issue might be taken and proof offered. In this aspect of the case the judgment ought not to have been entered. The alternative writ exhibited nothing but a naked statement of the appropriation and in fact the relator relied entirely on the theory that the act of April 30, was a specific appropriation of $1,750, and that the auditor was without discretion. Under the decision in In re Appropriations, this could in no event be true because if the auditor should determine on inspecting the voucher and the proof that the claim was not constitutional in the sense of being a casual deficiency for which the legislature could provide, he not only had the right but it was his duty to reject the claim regardless of the legislative direction. Whether this be or
The answer states and we must take it as true that the $102,000 resulting from the sale of these bonds and applicable to the payment of the claims designated in the first section of the' act has been absorbed by warrants lawfully issued on audit by the board. The board acted within the scope of its authority. The auditor violated no rule but complied with the law when he issued his warrants to pay the claims which the board had passed on. Therefore the appropriation of April 80 was only an appropriation running to that identical fund, and the auditor can lawfully issue no warrant which will be a claim on the general revenues of the state, and which will be payable otherwise than out of the casual deficiency fund. Since this is true and the fund has been lawfully and legally exhausted, we do not see how, when the relator has failed to act, he can now demand a warrant from the auditor. He did not present any claim to the auditing board which was not paid. Neither did he, while those funds were in the treasury, present his claim to the auditor and demand a warrant payable out of that fund. We are quite unable to see how the relator could sit idly by, even if he had a claim, and permit the disbursement of the fund and now demand of the auditor the issuance of a warrant which there is no money to pay and which the auditor cannot lawfully or legally issue. Suppose the auditor does issue his warrant for $649.32, it will only be issued on a fund which has been exhausted and in which there is no money. It is a fund which has been lawfully and legitimately exhausted. It was paid out on warrants which the auditor had a right to draw and which were as against him conclusively determined to be valid by the action of the board to which was committed authority to determine the validity of the claims payable out of it. Hav
The state complains of the mode adopted by the relator to bring Lowell, the present appellant, into the litigation. It will be remembered that the proceeding was begun against Parks who was then state auditor and it ultimately continued and was concluded as against Lowell who was his successor in office. Lowell was brought in on a motion to substitute because the proceeding was against the official rather than the person, and because in the alternative writ the order ran against Parks without describing him as auditor, and the attorney general therefore contends that the proceedings should for these reasons be dismissed. We cannot assent to the conclusion. As we understand it, both courts have considered the rule to be that where a proceeding or an action is begun against an official to compel the performance of an official duty or the discharge of an official obligation, a change in the person holding the office will not of necessity nor even generally defeat the action, but it may be continued against the successor, and the judgment if recovered be made ultimately effectual. The defect in the alternative writ in the description of the officer is unimportant because Parks came in and answered and his answer described him as state auditor, and he rested his defense on his right as such to resist the relator’s claim. This would cure any defect in the alternative writ where the motion was made for judgment on the pleadings and it appeared that the proceedings were started against the defendant as an individual and he answered as auditor
This disposes of the errors discussed in the briefs of counsel which require discussion or decision. The judgment ought not to have been entered. As we view the record it is impossible to make a case on the proof which would entitle the relator to a peremptory writ, and final judgment will therefore be entered in this court in favor of the appellant. Judgment reversed and final judgment ordered.
Reversed.
Thomson, P. J., dissents.