10 Mont. 488 | Mont. | 1891
The affidavit of the relator states the follow-, ing facts: The Journal Publishing Company is a corporation, and entered, March 11, 1889, into a contract with the Territory of Montana to do all the printing thereof pursuant to law. The State under this contract is indebted to the relator in the sum of $7,909.93, for printing for the Territory and State. The accounts therefor were presented by the relator to the State board of examiners, and audited, approved, and allowed in said sum, and were by it certified and presented to the second legislative assembly. Said legislative assembly, by an act entitled “An act to provide for the payment of all claims against the State approved by the State board of examiners and reported to the legislative assembly,” approved March 7, 1891, appropriated out of the funds of the State the sum of $7,909.93 to pay this claim. A demand for the relator was made March 14, 1891, of the respondent, that as State auditor he should draw his warrant on the State treasurer for the amount of said claim. The respondent refused to draw any warrant therefor.
The relator filed a demurrer to the answer, upon the ground that the facts therein stated did not constitute a defense. The act supra, which is referred to in the affidavit of the relator, contains the following provisions: “Section 1. That the sum of $44,648.19 be, and the same is hereby appropriated out of any moneys in the treasury, not otherwise appropriated, for the payment of claims against the State, approved by the State board of examiners, reported to the second legislative assembly. Sec. 2. That in payment of said claims, the auditor is hereby directed to draw his warrant upon the State treasury, in favor of the following persons, and for the following amounts.” In this list the relator is named, and the amount is the same as that which is specified in the affidavit.
The statute provides that “the first day of December in each and every year shall be the end of the fiscal year for territorial (State) purposes.” (Comp. Stats, fifth div. § 140.) It is disclosed by the answer and admitted by the relator that the second legislative assembly appropriated for the fiscal year of 1891 the sum of $640,000, and that a large part thereof, the sum of $558,412.36, was embraced in laws which were approved prior to the act supra, under which the relator asserts his rights in this proceeding. The revenue which has been received during this fiscal year, and which, it is estimated, will be received during the remainder thereof, amounts to the sum of $433,332.80. The deficit seems to be the sum of $217,000, or thereabouts. The respondent for this reason refuses to draw his warrant in behalf of the relator, and maintains that said legislative assembly has appropriated an amount in excess of the money in the treasury of the State, or which could be made available there
The opinion of the justices of the Supreme Court of the State of Colorado (In re Appropriation, 13 Colo. 316), considers similar constitutional provisions, and says: “It will be observed that appropriations and expenditures for ordinary purposes are legitimate so long as they do not exceed the total tax already provided by law, and applicable for their payment, or which may, within constitutional limits, be so provided for their payment within the proper fiscal year. .... What we have said of the legislative department in respect to making appropriations or authorizing expenditures in excess of constitutional authority applies with equal force to the executive department in recognizing or dealing with legislation affecting the public revenue. If legislative acts making appropriations in excess of constitutional limits have unfortunately received the governor’s signature instead of his veto, he should nevertheless withhold his approval from any and all vouchers relating to such unconstitutional appropriations. So, also, the auditor should refuse to draw any warrant therefor, and the treasurer should decline to make payment thereon. In reference to matters arising under enactments clearly unconstitutional, the unauthorized act of one government official is no justification or excuse for a similar act by another.”
It is obvious that the responsibility of the legislative assembly is of the utmost gravity. The ninth section, supra, declares that the rate of taxation of real and personal property for State purposes in any one year shall not exceed two and one-half mills on each dollar of valuation, whenever such property shall
In performing the grave task of observing this restriction of the Constitution, some difficult problems require solution. We again quote from the opinion (In re Appropriation, supra), which sheds considerable light upon this inquiry, and says: “ We are asked what legal criterion is fixed by which it can be known, at the date of an act appropriating or authorizing the expenditure of money, whether such appropriation or expenditure will be in excess of the prescribed constitutional limits. We answer that there is no absolute criterion which -can be relied upon in every instance and under all circumstances. The general assembly must, of necessity, exercise their own judgment in the first instance.” It is also stated that the legislators must obtain all the information respecting the public revenue and probable expenses of the government, which can be derived from the reports of officers and the testimony of other persons concerning these matters. It may, therefore, be reasonably presumed that the second legislative assembly of the •State acted upon the knowledge within its command that the valuation of the taxable property for the fiscal year, 1890, was $12,000,000, and that this rate of taxation would yield a revenue of $280,000 per annum for the fiscal years, 1891 and 1892. The aggregate of this sum and the above amount of -$433,332.80 is $713,332.80.
The act concerning revenue, approved March 6, 1891, provides that the county clerk shall, on or before the first Monday of October, “ deliver a copy of the corrected assessment book,
It is apparent from these provisions of the statute that the taxes for State purposes become due and payable in the month of October, and that the county treasurers are the agents of the State in the collection thereof. They are required to settle their accounts at certain periods, and remit to the State treasurer the amount of the taxes which has been ascertained to be due. In complying with the requirements of the law, it is not possible for them to pay into the treasury of the State before the end of the fiscal year the amount of the taxes which have been levied and collected for that term. It is a safe assertion that only a small part of such taxes, if any, will be received by the State treasurer during the fiscal year. It is the contention of the respondent that, under these conditions, the funds which will be realized from the levy of the taxes which have been authorized by the second legislative assembly for the year
In Evans v. McCarthy, 42 Kan. 426, Mr. Justice Valentine for the court said: “ But taxes under a levy made by or for the State certainly become proceeds for such levy long before they reach the State treasurer’s office. They are proceeds of such levy as soon as they are paid into the offices of the various county treasurers of the State, and do not remain something else than proceeds until they reach the State treasurer’s office. When they are received by the county treasurers they then become public funds, and belong to the State, and cannot then -or afterward be used for any other purpose than the purpose for which they were appropriated.” The treasury of the State in the eyes of the law will be the recipient of the proceeds of said levy for the fiscal year 1891, to wit, the sum of $280,000, before the end thereof. We conclude that this amount, which has been estimated to be the revenue from the direct tax for the fiscal year 1891, should be held available to meet in the future, when collected, some of the appropriations which were made for the same time; and that the act supra, for the relief of the relator and other parties, does not violate any clause of the organic law of the State.
The respondent insists that he cannot be required to draw his warrant for the relator unless there are funds in the treasury for its immediate payment. Our attention has not been directed to the words of any statute or the Constitution which sustain this view, and the authorities express an opinion to the contrary. The same cases cover this and another proposition which has been examined. In State v. Hoffman, 35 Ohio St. 435, Mr. Justice White as the organ of the court said: “There
The act prescribing the duties of the State board of examiners provides that any person who has a claim against the State, and for which an appropriation has been made, shall present the same for its action. This statute derives its power from the Constitution. (Art. vii. § 20.) The seventh section of the act provides further: “ If the board approve such claim, they shall indorse thereon, over their signatures, ‘approved for the sum of-dollars,5 and transmit the same to the office of the State auditor, and the auditor shall draw his warrant for the amount so approved in favor of the claimant .... in the order .in which the same was approved.55 But the respondent must
The demurrer must be sustained, and as the respondent declines to file any other answer, it is ordered aud adjudged that the peremptory writ of mandate issue according to the prayer of the affidavit.