State ex rel. Journal Publishing Co. v. Kenney
9 Mont. 389
Mont.
1890
Check Treatment
Blake, C. J.

This is an appeal from the order of the 'c-ourt below, denying the application ol the- relator for a writ of man*394date, to compel the auditor of the State to draw his warrant on the treasurer of the State in payment of an account. The affidavit which accompanies the application is not controverted, and recites the following facts: The Journal Publishing Company entered March 11, 1889, into a contract with the Territory of Montana to do all the printing therefor which is required by law. The account of the printing and advertising done by this company for the inspector of mines, an officer of the State, under the contract, amounted to the sum of $389.39, and was presented March 1,1890, to Kenney, the auditor of the State. This account was examined by the governor and auditor of the State, and found to be correct March 4,1890. Afterwards a demand was made of the auditor that he should draw his warrant on the treasurer of the State for the amount of the account in favor of the company, and the auditor refused to perform this act. Upon the hearing of the application it was adjudged that the writ of mandate be denied, upon the ground that the foregoing facts do not entitle the relator to this remedy.

It is conceded that the claim of the relator against the State is valid, and the defense of the respondent is based upon the failure of the legislature to make an appropriation for its payment.

The provisions of the constitution wdiich are applicable to this controversy, declare that “ no money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the public officer in pursuance thereof, except interest on the public debt.” (§ 34, art. v.) “No money shall be drawn from the treasury but in pursuance of specific appropriations made by law.” (§ 10, art. xii.) In State v. Hickman, ante, page 370, it was decided that a clause of the constitution which fixed the salary of the secretary of State, and prescribed the times of its payment, was an appropriation made by law. It is obvious that this principle does not determine the question before us. The statute specifies the prices which shall be paid for the printing that has been authorized by the contract between the relator and the Territory. (Comp. Stats, div. 5, ch. xcviii.) The law further provides that the governor and auditor shall examine the “itemized account” of the contractor, which shall be rendered “ once in each month,” and “ if they find it to be correct and in accordance with the provisions of this chapter, *395the auditor shall draw his warrant on the territorial treasurer for the payment of the same.” (Comp. Stats, fifth div. § 1636.) “The auditor of the Territory is hereby empowered to issue territorial warrants drawn upon the treasury of the Territory, in favor of all persons to whom the legislative assembly of the Territory may direct.” (Comp. Stats, fifth div. § 1122.) The obligations of the Territory, under the terms of the contract with the relator for the public printing, have been assumed by the State, and the constitution in the most solemn manner protects and enforces the rights of individuals, associations, and corporations which existed at the time when Montana was admitted into the Union. (Art. xx. Schedule, §§ 1, 2, 9,10,12.) This historic event operated as a repeal or amendment of “all laws enacted by the legislative assembly of the Territory of Montana and in force,” which were inconsistent with the constitution of the State. (Art. xx. Schedule, § 1.)

The writ of mandate shall be issued “to compel the performance of an act which the law specially enjoins as a duty resulting from an office.” (Code Civ. Proc. § 566.) Are the foregoing provisions of the statute concerning printing consistent with the constitution? There is no law which appropriates in express language a certain sum for the payment of the claim of the relator. Is the auditor empowered, after the admission of the State into the Union, to draw his warrant according to the territorial statute, supra?

The Constitution of the United States provides that “no money shall be drawn from the treasury but in consequence of appropriations made by law.” (Art. i. § 9.) The leading case upon the interpretation of this clause is Reeside v. Walker, 11 How. 272. This was a petition for a writ of mandamus to direct the secretary of the treasury to enter upon the books of his department the sum of $188,496.06 to the credit of, and to pay the same to, the plaintiff. Upon the trial of another action the jury returned a verdict, and certified that the United States was indebted in this amount to James Reeside. A final judgment was entered in his favor therefor, which was in full force when this proceeding was commenced by his executrix. Mr. Justice Woodbury, as the organ of the court, said: “No officer, however high, not even the President, much less a secretary of *396tbe treasury, or treasurer, is empowered to pay debts of the "United States generally, when presented to them. If, therefore, the petition in this ease was allowed so far as to order the verdict against the United States to be entered on the books of the treasury department, the plaintiff would be as far from having a claim on the secretary or treasurer to pay it as now. The difficulty in the way is the want of any appropriation by Congress to pay this claim.Hence the petitioner should have presented her claim on the United States to Congress, and prayed for an appropriation to pay it. If Congress after that make such an appropriation, the treasury can, and doubtless will, discharge the claim without any mandamus; but without such an appropriation it cannot and should not be paid by the treasury, whether the claim is by a verdict or judgment, or without either, and no mandamus or other remedy lies against any officer of the treasury department, in a case situated like this, where no appropriation to pay it has been made. The existence of this other and ordinary mode of redress, by resort to Congress, may be another reason against a mandamus, as that lies only when no other adequate remedy exists. (Marbury v. Madison, 1 Cranch, 137; Kendall v. United States, 12 Peters, 525.)”

The history of this vital clause of the constitution forms a grand part in the struggle for liberty between the people and monarchs of England. In Magna Charta it is confirmed that “no scutage or aid shall be imposed in our kingdom unless by the general council of our kingdom.” In 1688, the act “for declaring the rights and liberties of the subject, and settling the succession of the crown” (or bill of rights), declared “that levying money for or to the use of the crown by pretense of prerogative, without grant of parliament for longer time, or in other manner than the same is or shall be granted, is illegal.”

Words have changed in signification during the progress of time, but the principle has not been modified, and this bulwark of freedom has been preserved in the constitutions of the States of the Union. The decisions are in harmony with the doctrine of Reeside v. Walker, supra, although there have been dissensions respecting the acts of the legislative department to ascertain whether they are in legal <ffe t appropriations. The Supreme Court of Indiana, in Ristine v. State, 20 Ind. 328, held *397that the interest upon the public debt of the State could not be paid without a specific appropriation by the legislature. Mr. Justice Perkins, in the opinion, says: “There are some things which, plainly enough, are not severally an appropriation. A promise by the government to pay money is not an appropriation. A duty on the part of the legislature to make an appropriation is not such. A promise to make an appropriation is not an appropriation. The pledge of the faith of the State is not an appropriation of money with which to redeem the pledge. .... Appropriation, as applicable to the general fund in the treasury, may, perhaps, be defined to be an authority from the legislature, given at the proper time, and in legal form, to the proper officers, to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the State. An appropriation of the money to a specified object would be an authority to the proper officers to pay the money, because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer is authorized to pay such warrant if he has appropriated money in the treasury.”

In Swann v. Buck, 40 Miss. 298, Mr. Justice Ellett delivered the opinion, and said: “The only remedy for a debt due by a State is by an application to the legislature to make an appropriation for its payment. Indeed, no money can be drawn from the treasury but in consequence of such an appropriation. The grants and executed contracts of a State are contracts within the protection of the constitution. But its executory contracts, such as promises to pay money and the like, have no other than a moral sanction, and depend upon good faith for their performance.” (See, also, State v. Wallichs, 12 Neb. 407; State v. Wallichs, 15 Neb. 609; State v. Babcook, 18 Neb. 221; Stratton v. Green, 45 Cal. 149; Marshall v. Dunn, 69 Cal. 223; Brown v. Fleischner, 4 Or. 132; People v. Burrows, 27 Barb. 89; People v. Tremain, 29 Barb. 96.)

Upwards of twenty years ago the Supreme Court of the Territory, in Langford v. King, 1 Mont. 38, thus expressed the law through Mr. Justice Knowles: “There is, then, no legal power to enforce territorial contracts. In other words, there is no obligation to territorial contracts. They rest simply upon the good faith of the Territory.” The case of Fisk v. Cuthbert, 2 *398Mont. 593, which is cited by the appellant, is rendered inapplicable by the adoption of the constitution of the State. We conclude from the authorities supra, that the respondent cannot draw his warrant upon the treasurer of the State in payment of the claim of the relator, in the absence of an appropriation by law. The foregoing prohibitions of the constitution refer to the auditor as well as the treasurer, and any other officer who is empowered to disburse the public funds, in pursuance of a lawful appropriation. To this extent the statute regulating printing, which requires the drawing of a warrant after the “ itemized account” has been found correct by the governor and auditor, cannot be enforced at this time. The relator must apply to the legislative assembly of the State for relief, and this, according to the precedents, appears to be the “plain, speedy, and adequate remedy.”

It is therefore ordered that the judgment of the court below be affirmed, with costs.

Harwood, J., and De Witt, J., concur.