156 N.W. 96 | S.D. | 1916
This is an original proceeding in mandamus to compel the defendant board to repay to- the state the sum of $891.23 paid by the state for the per diem and expenses of an assistant executive accountant of this state in making an examination and audit of the boohs and accounts' of certain 'officers of Ed-munds county. The essential facts as they appear from the application for the alternative writ, the return thereto', and admissions of counsel are here summarized. On or about July 1, 1913, pursuant to -written requests from, taxpayers and officials of said county, the Governor of this state, deeming an examination and audit of the books and accounts of said county necessary, directed-the executive accountant or one of' 'his assistants to- make such ex--amination. On July 10, 1913, defendant board resolved that such examination cover the period from January 1, 1911, -to that date. During the months from July to November, 1913, inclusive, an
(1) “That there is no equity in plaintiff’s cause, and the relief demanded should not be granted, for the reason that plaintiff has heretofore by uniform taxation throughout the state raised and collected to itself the full amount of moneys claimed to have been*614 disbursed, as alleged, for the specific purpose mentioned in plaintiff’s petition, and that plaintiff has been thereby paid the claim alleged to exist.”
(2) “That the tax, the levy of which plaintiff seeks- to compel, is for the purpose of general state interest and benefit, for the maintenance of a state office and institution in connection with a current expense in operation of state government, and can only be levied upon all property w-ithin 'the state -by a rule of uniform taxation, and not upon the property in the county of Edmunds alone.”
(3) “That all property in -the county of Edmunds has already paid its share of the expense or -claim mentioned in the petition in the levy or collection of those items recited in paragraph 42' of chapter 23, Session Laws 1913, being the General Appropriation Act of that year, and that the imposition of the tax prayed for would compel the property of Edmund's county to bear a second or double taxation- for the same -purpose.”
(4) “That the assessed valuation of the property of Edmunds county in the sum of $17,544,752 bore to the assessed- valuation of the property -of the state of South Dakota, in the sum of $1,195,-123,854 for the year 1913, 1.47 per cent., which represents the percentage in the sum of $220.50 which said Edmunds county pa-id to plaintiff in taxation for the year 1913 in contribution to -the sum of $15,000 raised by the plaintiff state for the payment of salary and expenses of assistant executive accountants, and that in any event the respondent, defendant, should receive the -offset and credit u-pon plaintiff’s claim in said amount of $220.50.”
There is no merit to any .of these objections. In so far as the labors of the executive accountant and his assistants are confined to the examination of the accounts of state officials, such work is purely of state interest, and is- paid for by the several counties in proportion to their assessed valuation by their payments of' state taxes. In so far as such officers incur expense in the -audit and examination of the accounts of county officials, their labors, while -in a sense of state interest, are more particularly of county interest, and it is fair and right that the particular county should ultimately bear the expense, although as between.the state and the officer it is paid for out of the state appropriation. It certainly •is as much within the power of the Legislature to say that a county shall bear- -the expense of -the examination of the accounts
“The present act provides for entire uniformity of its operation, the Charge for the maintenance of the bureau- being upon all the counties of the state in proportion to their population, and that for -the auditing being, as provided in the tenth section, the particular expense incurred by the bureau in each examination. The latter section appears to find ample justification in facts which may be presumed, if we may not take notice of instances of their actual occurrence. In some of the counties of the state the public officers elected -by the people are 'so efficient and scrupulous in the conduct of their affairs and in the keeping of their accounts that but little time is required and but little expense incurred in making the -examinations by the bureau. Whatever may be the differ-eneces in this -respect in the several counties -of the state, they seem to be appropriately met by this section.” • - ■ •
“An act entitled, 'An act to revise chapter 149 of the Laws of 1911, relating to the office of executive accountant, conferring upon him and his assistants additional powers and duties in formulating á uniform system of public accounting, auditing and reporting.’ ”
This title indicates with sufficient clearness that the act is one which contemplates a uniform system of public accounting and auditing throughout the state. State v. Kirby, 34 S. D. 281, 148 N. W. 533.
The pertinent provisions of the Executive Accountant Act, viz., chapter 206, Laws 1913, are as follows:
"Sec. 7. It shall be the duty of the executive accountant or his assistants, to proceed to the county seat of each county in this state, at irregular periods of at least once in two- years, and ex- ' amine and audit the books and accounts of each officer thereof. * * Upon request of the board of county commissioners of any county in the state for an examination of county records, other than that provided in this section, or whenever the Governor deems an examination necessary, the executive accountant of his assistants shall proceed to the county seat of such county and examine and audit the books and accounts of such county. * *
"Sec. 13. The executive accountant shall receive a salary * * * and; his assistants shall receive such sum for making county * * * examinations as shall be determined by the Governor of this state, not to exceed the sum of six dollars per day. * * * And the board- of county commissioners * * ' * wherein examination is- made shall pay the expenses and per diem of the assistants making the examination * * * which payment shall be made at the first regular or special meeting of the county board * * * after the examination is completed and such per'diem and expenses -of such assistants shall be paid to the state treasurer and converted into the general fund.
"Sec. 14. All money received by the executive accountant or his assistants in payment ' of the per diem and expenses, as provided by the preceding section, shall be deposited with the státe treasurer to the credit of the general fund. All salaries, per diem and expenses to ibe paid out on warrants drawn upon the general fund, as provided for by- the general appropriation bill.”
The -general appropriation bill for the -period in question, viz., chapter 23, Laws 1913, in section 42 appropriated $7-, 500- -per year for salary and expenses of deputy accountants. Section 43-0! that chapter provided the manner of -disbursement thereof. Sections 71 and 76, Pol. C-od-e, chapter 189, Laws 1909, and chapter 4,
“Some Of the provisions of the act, as we have intimated, must give way. We can only select those which we consider the fittest to prevail to accomplish the purposes of the statute.”
The only way we can reconcile the quoted words in section 14 with the other.provisions of the act is to treat the executive accountant or his assistant, in so receiving the money, merely as .a means of transfer or conduit from the county or other taxing district to the state treasury. Such officers have no right to receive the money in the sense that they may treat it as their own, even temporarily. The underlying import of sections 13 and 14 of the act, in connection with . the other sections of statute referred to, is that the state auditor is made the auditing officer in determining the correctness of the claims, for per diem, and expenses of the assistant executive accountant, and that, when so audited and paid, the county board has no 'discretion as to whether it
“It is too well settled to require the citation of authorities that counties are local subdivisions of the state for governmental purposes, created by the sovereign power of the state, without the consent or concurrent action of the people who inhabit them.”
See, also, note 68 Am. Dec. 298, 11 Cyc. 341.
There is nothing -in the Constitution that limits the authority of the Legislature relative to the fiscal affairs of counties. Indeed, article 9, § 6, authorizes the Legislature to provide for such county officers as it may deem necessary and to prescribe their duties -and -compensation. N-or does- article 9, § 7, of the Constitution militate against the authority of the Legislature. While it is true that co-unty officers mus-t foe electors of the count}'', yet the Legislature -has the power to say what the duties of the county officers shall be. If' it chooses t-o lay upon a state officer certain duties that might have been laid upon the officers- of the county, that -is solely a matter of legislative -policy. While, generally speaking, the Legislature has made the county board the fiscal manager of the county, it has made exceptions thereto- in addition ■to that made in the present statute. By section 669, Pol. Code, the per diem -cf the -court stenographer is to be “audited and- paid by the county * * * upon the order of the judge.” If the -county board neglects to do the things required of it by section 846, Pol. Code, the -court may order -it done, “and the expense incurred by him in carrying the order into effect when certified by the court shall be a county charge.”
Section 887, Ptol. Code, expressly recognizes the fact that the ■power of auditing and allowing claims against counties is not -confined to- the county commissioners. It provides:
“No -claim against the county shall be paid otherwise than up ■on th-e allowance of the county -com-misisoners * * * except it -is authorized to be fixed by some -other person or tribunal, in*621 which case the sum shall be paid upon the warrant of the county auditor,, upon the proper certificate of the person or tribunal allowing the same.”
In Ex parte Widber, 91 Cal. 367, 27 Pac. 733, the audit by the judge of the superior court of a claim for providing suitable rooms and furniture, stationery, etc., for the use of the court was sustained as being a direct liability against the county enforceable ■by mandamus. In Jones v. Board of Supervisors (Miss.) 12 South. 341, it was held that a claim for furniture purchased for a court should have been audited by the -court and “certified to the board of .supervisors, not for revision or -correction or allowance, but that a warrant-may issue to- the county treasurer.” In State ex rel. Lindabury v. Board, 47 N. J. Law, 417, 1 Atl. 701, it was held that the audit by the court of a claim for fees of an associate counsel employed toy the public prosecutor was binding upon the county board and mandamus issued. In Baldwin v. Board, 58 N. J. Law, 285, 33 Atl. 197, it was held that the costs of an investigation ordered by the Chief Justice were to be audited by the Chief Justice, and not by the county board. See, also, Lyman County v. State, 9 S. D. 413, 69 N. W. 601; Morgan v. State, 11 S. D. 396, 78 N. W. 19; Gilmore v. Penobscot Co., 107 Me. 345, 78 Atl. 454; Mayor v. Keeley Institute, 81 Md. 106, 31 Atl. 437; Bryant v. Palmer, 152 N. Y. 412, 46 N. E. 851.
We -therefore conclude that the county, being merely a governmental subdivision of the state, i-s not deprived of any of its constitutional rights by statutes which make the state auditor -the auditing officer of the acounts- in question, and that, as the -county 'board 'has no -discretion in the- matter, its- rejection -of the claims amounted to- nothing, and that mandamus is the proper ' remedy. It may with -propriety be pointed out that, if a false claim was paid by the state for a county examination, it would be the duty of the state, under the provisions of section 4, -c. 4, Laws 1911, to cause restitution to be made to the state, and there -can be no doubt but that in such case it would be the further duty of the state to restore to the county, which has,- paid- to the state the full amount -of -the false claim, the amount recovered.
The plaintiff is entitled to a peremptory writ of mandamu-s requiring -the defendant board to cause a county warrant to be is