175 N.W. 207 | N.D. | 1919
Lead Opinion
This is an original application in this court for a peremptory writ of mandamus to compel the state auditor to -issue his warrant for the salary of the tax commissioner for the month of August, 1919. On the issues framed, upon the petition and the return, there is no dispute that the tax commissioner is entitled to a warrant for his salary for the month of August, for which he made demand therefor, if there are sufficient moneys in the general fund of the state with which to pay the same, and if, further, prior claims filed and audited against the state should not first be paid by the state auditor. In the return the state auditor denies that he has refused to draw such salary warrant, and specifically alleges that on September 5, 1919, he informed the tax commissioner that there was hot sufficient money in the treasury to pay his salary, but he thought he would be able to pay him the following day, and that said commissioner thereupon said, “all right” and departed. However, such salary warrant has not been issued. He further returns that on September 1, 1919, there was a balance in the general fund of the state of about $14.21, and that on the close of business on September 5, 1919, there was $22.61 in such general fund. That at such time there were claims amounting in the aggregate to over $251,000, filed and unpaid against such general fund prior to the claim of the tax commissioner. The return, however, does not affirmatively allege either the duty or the intention of the state auditor to pay such claims or any part of them
Tbe state auditor maintains tbat it is bis right and duty to maintain a separate fund designated as tbe Glanders and Dourine Horse Fund apart from tbe general fund, into which be may transfer tbe
Under Comp. Laws 1913, § 2736, it was provided that a levy of an . annual tax of 1/10 of 1 mill on the dollar should be assessed, and, when collected, should be paid into a fund known as the Glandered Horse Fund, which should be preserved inviolate for the payment of claims allowed for the destruction of glandered horses. In 1915, said § 2736 was repealed. Laws 1915, chap. 216. Likewise in 1915, an act was passed providing for the appraisement of animals and indemnification to owners for animals destroyed by dourine, and further providing that all moneys now in, and hereafter deposited in the Glan-dered Horse Fund, shall be placed in the Glanders and Dourine Horse Fund, and that the same shall be preserved inviolate for the payment of claims for indemnity allowed for animals destroyed for either glanders or dourine. Laws 1915, chap. 164. At the same legislative assembly there was appropriated $10,000 for such fund. Laws 1915, chap. 29. Again, in 1917 there was appropriated $30,000, or so much thereof as may be necessary, to indemnify the owners of animals afflicted with the.disease known as glanders and dourine. Laws 1917, chap. 25. Again, in 1919, there was appropriated by the legislature $25,000, or so much thereof as may be necessary to indemnify the owners of animals afflicted with the disease known as glanders and dourine for the period from June 30, 1919, to July 1, 1921. Senate Bill No. 105, Laws 1919. Pursuant to this appropriation the state auditor makes his return that he has so transferred $15,000, and that there still remains $10,000 to transfer to such fund. Although, as heretofore stated, there is. a fund known as the Glanders and Dourine Horse Fund which.pursuant to Laws 1915, chap. 164, shall be preserved inviolate as to moneys then in or thereafter deposited therein for the payment of claims of indemnity allowed for animals destroyed, nevertheless it is apparent that the. appropriation in 1919 by the legislative assembly gave no direction to the state auditor or any other official to transfer the total amount, or any amount of such appropriation to a special fund; furthermore, under the act of the legislature of 1919, the amount to be used is for a period of time from June 30, 1919, to July 1, 1921. This specifically negatives any legislative in
We are clearly of the opinion, therefore, that the unexpended balance in the Glanders and Dourine Horse Fund is still a part and portion of the general funds of the state. The question whether the compulsory issuance of the salary warrant should be enforced as against outstanding prior claims, filed and unpaid by the state auditor, is not at issue before this court.
The state auditor has filed no brief. Upon the oral argument of this cause, upon a question propounded directly by the court, the state auditor stated that he did not refuse to issue this salary warrant upon the ground of prior outstanding claims, and that the warrant would have been issued if there were sufficient moneys in the general fund to cover the same. There is accordingly no contention made or proof submitted that any one of the so-termed prior claims should first be paid, or that the state auditor has made payment of various claims which in fact are subordinate to the claim for salary of the tax commissioner as a departmental officer. The controversy, accordingly, before this court is therefore upon the question whether, upon the date of the demand for the salary warrant, there were moneys in the general fund with which to make payment of the same. Clearly, therefore, it was the duty of the state auditor to issue such salary warrant to the tax commissioner unless he otherwise showed to this court the legal necessity of appropriating such moneys then in the general fund to the payment of other outstanding claims. He cannot thus evasively raise a collateral issue of law and fact unless he shows his intention to issue warrants for claims prior to the salary warrant herein to the extent of moneys in the general fund, and we do not understand that the state auditor so intends to do. Pierce, B. & P. Mfg. Co. v. Bleckwenn, 42 N. Y. S. R. 568, 16 N. Y. Supp. 768. See Spelling, Extr. Belief, § 1489. Upon the presentation of this case it is the apparent desire of both parties to determine the status of the general fund with reference to the sufficiency of moneys therein with which to pay such
Concurrence Opinion
(concurring in part and dissenting in part). While certain language in Laws 1915, chap. 164, furnishes some foundation for a contrary view, I am of the opinion that, under the existing laws, moneys appropriated for the payment of glanders and dourine claims do not in fact go into and become a separate fund; but properly belong in the general fund, and that glanders and dourine claims are properly chargeable against such fund. I therefore agree with the opinion prepared by Mr. Justice Bronson that, under the showing made in this case, there was available on September 5, 1919, in the general fund the sum of $13,023.93, which had been erroneously transferred to the so-called Glanders and Dourine Horse Bund. I do not, however, agree that this fact alone warrants the issuance of a writ of mandamus to compel the defendant to issue a warrant to the relator.
'The statute provides: “It is the duty of the state auditor: . . . 17. To draw warrants on the state treasurer for the payment of money directed by law to be paid out of the treasury; which warrants shall be numbered consecutively in the order in which they are drawn; but no warrants shall be drawn unless authorized by law, nor unless there are funds in the treasury applicable to the payment thereof to meet the same.” Comp. Laws 1913, § 132, subd. 17.
The return or answer of the defendant, state auditor, is accompanied by a detailed itemized list of unpaid claims chargeable against the general fund. The correctness of such list is not denied. It appears therefrom that there are outstanding unpaid claims chargeable against the general fund, aggregating $7,624.31, which were presented for payment prior to, and duly allowed by the state auditing board on, August 5, 1919; that there are outstanding unpaid claims, chargeable against said general fund, aggregating $108,794.93, which were presented for payment prior to, and allowed by the state auditing