This is аn application for a writ of mandate to rеquire Hon. E. P. Colgan, state controller, to draw his warrant on the treasurer in favor of the petitioner fоr the sum of $250.
The application is based upon an act of the legislature, approved March 31, 1891, the material portion of which reads as follows: “ The sum of $250 is hereby appropriated out of any moneys in the state treasury not otherwise appropriated, to pay James W. Rankin for services in the state treasurer’s office during the period elapsing from November 13, 1884, to December 15, 1884, both datеs inclusive, under appointment by Governor Georgе Stoneman, on .account of the delinquencies of Arthur January, deputy state treasurer.”
Respondеnt filed an answer denying that the petitioner ever рerformed any services for the state except such as has been fully paid for, and claiming that the act referred to is unconstitutional and void, in that it violates the provisions of subdivision 29 of section 25, and sections 31 and 32, of article IV. of the constitution, beсause it attempts to award extra compensation to an officer after the service has been rendered, or is a gift of public money.
The аct is not void on its face. It does not purport to award extra compensation, and we cannot assume that the legislature intended to do so. The nature of the services rendered under and by virtue of his appointment by Governor Stoneman does not appear. As chief executive of the state, the governor always has full power to protect public property. We must presume that thе legislature before passing the act, and the gоvernor before approving it, made inquiry as to the nature of the ser
The act, on its face, is at lеast as fair and free from suspicion as the onе which we had under consideration in Stevenson v. Colgan,
It follows that the mattеrs set up in the answer of the respondent herein сannot be considered, and that the petitioner is entitled to the writ prayed for.
It is ordered that a writ оf mandate issue under the seal of this court, commanding the respondent, as controller of the state, to draw his warrant .on the treasurer of the state in favor of the petitioner for the sum of $250.
De Haven, J., McFarland, J., Sharpstein, J., and Garoutte, J., concurred.
Rehearing denied.