83 Vt. 6 | Vt. | 1909
The State prosecutes this suit to recover sums claimed to have been illegally charged by the defendant for his services and expenses as railroad commissioner. The case is here upon exceptions taken by both parties. The question presented is regarding the effect of an allowance of the charges by the auditor of accounts. The defendant claims that a determination of the auditor is in the nature of a judgment, and conclusive of the rights of the parties. The State argues that the auditor is not a judicial officer, but merely an agent with limited powers, whose unauthorized act has no binding effect.
The statute provides, with certain exceptions, that the treasurer shall not disburse moneys except upon orders drawn
The only cases in this State to which our attention has been directed as helpful in the interpretation of these provisions are State v. Bates, 36 Vt. 387, 398; Peck v. Powell, 62 Vt. 296, 19 Atl. 227; Fay v. Barber, 72 Vt. 55, 47 Atl. 180; Clement v. Graham, 78 Vt. 290, 319, 63 Atl. 146. The first of these was a suit on the bond of a defaulting state treasurer; and the sureties pleaded in bar that on the annual settlements made with the treasurer by the auditor for the two preceding years it was found and officially reported by the auditor that the treasurer
The provision that the legislative committee on claims shall examine the auditor’s report in order to correct allowances which appear excessive, is referred to by the State as a plain indication that the findings of the auditor are not to be regarded as final. On the other hand, the provision that a claim referred to the General Assembly at the request of a dissatisfied claimant shall be treated as “adjudicated” if the claimant neglects to apply to the General Assembly, is referred to by the defendant as showing beyond question that the decisions of the auditor have the conclusiveness of a judgment. While arguments worthy of consideration may be based upon these and other particular
The designation of the auditor as an executive officer does not carry us far on our inquiry. The duties of the head of an executive department are seldom confined to those properly classed as executive. The conflict of argument on this subject is apparently due in part to a failure to recognize the fact that the authorized acts of an auditing officer may differ in character and be subject to different rules. His statutory duty in the particular instance may be ministerial or discretionary, and the effect to be given his action will depend upon its classification in this respect. A ministerial duty is one regarding which nothing is left to discretion — a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist. Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437. If the duty is one that requires the exercise of judgment in its performance it is not ministerial but discretionary. A discretionary duty may be executive or judicial, according to the nature of the subject-matter. The ministerial acts of a public official, whatever the# classification of his office, are subject to the control and review of a court of competent jurisdiction. But an officer who is intrusted with a duty which requires the exercise of his judgment and discretion is entitled to proceed therein without judicial interference, and may render a decision that will be final and conclusive.
The distinction drawn by the definition above given may be made more specific by a reference to some of the cases. A decision which rests solely upon the construction of a statute does not involve that exercise of judgment which the law contemplates, — as may be seen from the Peck and Fay eases already cited. See also the remarks of Chief Justice Taney in Decatur v. Paulding, 14 Peters 497, 10 L. Ed. 559. If the duty is one that necessarily involves an inquiry of fact and an exercise of judgment upon the case presented it is not ministerial, and the disposition made of it will be binding upon the courts. Decatur v. Paulding; United States v. Seaman, 17 How. 225, 15 L. Ed. 226; Wailes v. Smith, 76 Md. 469, 25 Atl. 922; Henkel v. Willard, 97 Md. 24, 54 Atl. 657. The inquiry of fact referred to need
Most of the cases cited in support of the above rules were cases in which it was sought to control the action of an official by mandamus or injunction. Others were cases in which it was sought to hold an official liable in damages for action taken. To the first class may be added Richards v. Wheeler, 2 Aik. 369, a ease in which this Court considered the grounds and extent of its right to control the action of an inferior tribunal. Cases of the second class in this State are Fuller v. Gould, 20 Vt. 643; Stearns v. Miller, 25 Vt. 20; Davis v. Strong, 31 Vt. 332; Universalist Soc. v. Leach, 35 Vt. 108. Both classes of eases are directly applicable to our inquiry, for in both of them the distinction between ministerial and discretionary power is the primary test of the plaintiff’s right to the remedy.
Another class of cases within the scope of our inquiry consists of those which involve the rights and liabilities of the government or a municipality under contracts entered into by its officials or special agents. The main pertinency of these eases lies in the fact that the government or municipality will not be bound by an undertaking of its agent in excess of his authority where an ordinary principal would be. A private individual will be bound by an act of his agent which is within the scope of his apparent authority, although contrary to specific, instructions not known to the other contracting party. This rule is deemed to have no application to an agent contracting for the public, for his powers are defined and limited by public law, of which every one must take notice. Among the eases cited by the attorney general are several of this class.
We have seen that1 in the Peck and Pay cases the Court directed the auditor to pay certain fees that he had disallowed,— which amounted to a holding that the auditor’s action therein was not discretionary. It is obvious that if the fees had been allowed and paid over, and the State had sued for their recovery, a further question would have been presented. The present suit is of the latter class, and the defendant claims that even if the allowance was open to impeachment the State is concluded by the payment. So the points to be taken up in proceeding with our inquiry must be viewed with reference to their bearing on both or either of two questions — the conclusiveness of the allowance and the effect of the payment.
Generally speaking, the discretionary acts of an auditor, if within his jurisdiction, are as binding as the judgments of a court; for the rule against a collateral impeachment of judicial decisions applies to officers who act judicially, although not sitting as a judicial tribunal. 23 Cyc. 1062; Board of Police v. Grant, 9 S. & M. 77, 47 Am. Dec. 102; Waugh v. Chauncey, 13
The primary purpose of the auditor’s office is to safeguard the funds of the State. To facilitate the liquidation of just claims, the Legislature has provided for their adjustment and payment through the instrumentality of the auditor, under the regulations above set forth. These general considerations certainly support the claim that one who has obtained money from the treasury wrongfully cannot stand upon the conclusiveness of the allowance. The State will not be bound by an allowance of the auditor procured by fraud. See Fenemore v. United States, 3 Dall. 357, 1 L. Ed. 634; Moses v. United States, 166 U. S. 571, 41 L. Ed. 1119. Nor will it be bound by an allowance due to a misapprehension of the auditor which resulted from a misleading statement of the claimant not fraudulently m'ade. See United States v. Sanborn, 135 U. S. 271, 34 L. Ed. 112, 10 Sup. Ct. 812. The further holding of the United States Court, that the government will not be bound by an allowance based on a mistaken belief in the existence of a specific fact so material that the allowance would not have been made but for such belief, is based on a statute. United States v. Barlow, 132 U. S. 271, 33 L. Ed. 346, 10 Sup. Ct. 77. But mere errors of accounting cannot be corrected in a collateral proceeding, unless they were induced by the fraud or misstatement of the claimant. If this
But, although the duty committed to the auditor is one that involves the exercise of a judicial function within certain limits, he is nevertheless an administrative agent of the State; and the law does not accredit him to claimants as one whose authority will give finality to an allowance made in disregard of the obligations of his trust. The auditor’s allowance of a claim will not be binding on the State unless made in good faith. If he acts in obedience to a corrupt motive his disposition of the matter may be questioned collaterally. Nor will his action be conclusive if he proceeds in disregard of the fundamental requirements of the duty to be performed. The designation and nature of his duty imply that his decision shall be based upon some information regarding the claim presented. See United States v. Barlow, 132 U. S. 271, 280, 33 L. Ed. 346, 10 Sup. Ct. 77. Our statute requires that a claim shall be itemized, and sworn to, and supported by certain vouchers; and this secures the submission of some evidence in connection with each claim. But the auditor’s duty is not confined to seeing that these requirements are complied with. He must scrutinize the account in the light of his general information regarding the conditions which bear upon the justness of the charges. If he has reason to question a duly verified claim, and has no knowledge that can serve as a test of its correctness, he should proceed upon such specific inquiry as may be practicable. But if he allows the claim upon information which tends fairly to establish it, whether already in his possession or obtained by present inquiry, and acts in good faith in so doing, his disposition of the matter will be conclusive; for he is the' judge of the sufficiency of the information upon which he acts, and is not confined to judicial methods of inquiry.
An allowance that might have been impeached collaterally may be made conclusive by payment. It is a general rule that if one voluntarily pays, with full knowledge of the facts, money which he is under no legal obligation to pay, he cannot recover it back. See Taggart v. Rice, 37 Vt. 47. The application of this doctrine to payments made by public officials is not very clearly determined. It is held in some important jurisdictions that
It was said in McKnight v. United States, 98 U. S. 179, 25 L. Ed. 115, in denying the right of the United States to recover a certain unauthorized payment, that the rules of law applicable to individuals are applicable to the government. In McElrath v. United States, 102 U. S. 426, 26 L. Ed. 189, the attorney general contended that the right of the government to reclaim money paid out of the treasury under a mere mistake of law was not subject to the limitations which would be applied between individuals, and argued further that whether the mistake was one of fact or of law or of both, the government could always recover from third persons money improperly paid out of the public treasury by its accounting officers, when not in pursuance of previous judicial determination. The court did not inquire as to the correctness of these claims, and placed its decision in favor of the government upon another ground. Badeau v. United States, 130 U. S. 439, 32 L. Ed. 997, 9 Sup. Ct. 579, involved the right of a retired army officer in the consular service to retain pay received in the former capacity under a mistaken construction of the statute, while he was receiving compensation as consul. It was claimed in argument, on the authority of McElrath v. United States and other eases, that the government was not bound by the mistakes of its officers, whether of law or of fact, but the court went no further than to say that inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, it was not inclined to hold that he had received money which, ex cequo et
Some of the United States decisions were controlled by statutes, and involved a holding that the official did not act judicially; as was the case in Wisconsin Central R. Co. v. United States, 164 U. S. 190, 41 L. Ed. 399, 17 Sup. Ct. 45. It was held in that case that the word “mistake,” as used in a section directing suits for the recovery of money wrongly paid, includes an erroneous conclusion in the construction or application of a statute. But it was also said that as a general rule, and on grounds of public policy, the government cannot be bound by the action of its officers who have made unauthorized payments through a misconstruction of the law under which they have assumed to act. The cases cited in connection with this statement were cases which involved the rights of the government under contracts made by special agents of an executive department. But the Court also quoted with approval certain remarks of the court of claims, to the effect that the doctrine regarding the recovery of payments mistakenly made does not have such general application to public officers, using the funds of the people, as it does to individuals dealing with their own money, and that money paid in violation of law on the certificates of accounting officers may generally be recovered where there are no peculiar circumstances to make such recovery inequitable. It is doubtless true that the tendency of recent decision has been to limit the application of the doctrine as regards official disbursements, but the authorities certainly fail to sustain the State’s contention to its full extent.
It is clear that if the auditor had acted upon the claim in bad faith, or had been deceived by the manner in which the claim was presented, his allowance would be subject to review. But the exceptions negative the existence of any collusion between the auditor and the defendant, and of bad faith in any form on the part of the auditor; while the State’s brief emphasizes the fact that the auditor allowed the charges with full knowledge of all the matters above stated, and the circumstances of residence and acquaintance make it equally certain that the defendant was aware that the auditor had this knowledge. The situation rather supports the theory of the trial court, that the manner of presentation was due to a belief on the part of the defendant that items for transportation of this class, however the transportation was provided, must be accompanied by
The court excluded evidence offered by the defendant to show that the auditor, in adopting the practice of allowing for a whole day, where a part only was taken, made investigation, and adopted what he understood to be the approved course of the National government. The court afterwards held that the defendant was legally entitled to an allowance on this basis, and so instructed the jury. The evidence offered would have tended to show that the auditor acted in good faith in making this allowance, but the defendant cannot have been harmed by its exclusion, in view of the position finally taken by the "court.
The court permitted the State to inquire of the auditor if he undertook to ascertain whether the defendant had performed the services for which he charged, and to show the extent of the effort made. This was clearly admissible as bearing upon the question of the auditor’s good faith.
The defendant excepted to the introduction by the State of the defendant’s personal expense accounts and accompanying vouchers, on the ground that they were immaterial. The
We have already referred to the statement in the defendant’s exceptions that “there was no misstatement, misrepresentation, concealment or suppression by the defendant of any facts connected with the several items,” unless the facts therein after-wards stated tended to show otherwise. The facts afterwards stated relate solely to the item which included the charge for the board of defendant’s wife. But the plaintiff argues that this statement of defendant’s exceptions is controlled by a reference to the evidence. The reference relied upon is in these words: “Upon defendant’s motion for a verdict and his motion to set aside the verdict, the reporter’s transcript of the testimony and all the exhibits are referred to.” The defendant’s motions were based mainly upon the claim that there was no evidence tending to show a right of recovery. This reference to the transcript was essential to a consideration of the motions in this Court, and it is not incompatible with a restrictive declaration like that in question. We think this explicit statement of the exceptions must be given effect according to its terms, in the absence of a provision that the transcript shall be controlling.
Of the nine items of the plaintiff’s specifications which were left to the consideration of the jury, six related to occasions when the defendant passed Sunday or a night at places other than those where his business had been or was to be transacted, some of which were not on his route to or from such places; and these may be taken up together. In view of the statement of the exceptions above considered it must be understood that the vouchers submitted to the auditor showed the facts in this regard ; and it is not probable that this statement was incorporated in the exceptions through any misapprehension, as regards these items, for the defendant’s motion .for setting aside the verdict recites, with reference to several of them, that the vouchers showed on their face where the hotel bills were paid; and nothing has been submitted to us in any form that indicates the contrary. The defendant’s motion also recites, with reference to certain items of this class, that the State claimed to recover only the excess of the hotel bills so paid over what the charges would have been at the places where the hearings were had, and it is stated in defendant’s brief that the uncontradicted evidence of the
On one of these six occasions the defendant, having business at Brattleboro on Saturday and Monday, went to Springfield, Mass., to stay over Sunday instead of remaining at Brattleboro; and as applied to this item the decision just announced is not unanimous.
On another of these occasions the defendant having in hand a matter which required an interview with a railroad official in Boston, went to Springfield, Mass., on Saturday, remained there over Sunday, and went to Boston Monday morning; attended to his business there that day, and returned home on Tuesday. He was unable to tell from, his data where he was or what he was doing on the Saturday when he commenced the trip. The statement of the matter in defendant’s brief indicates that he had no appointment with the Boston official for any particular time. If the facts suggest any ground on which this item might be distinguished from the other items of the group, reference should be had to the position of the State and the action of the court in regard to it. After the charge had been given and exceptions noted, the court specially instructed the jury that the only claim made by the State concerning this item was that more days were used and more expenses incurred than were reasonably necessary under all the circumstances of the ease. This definitely put the item upon the same basis as'
Two of the remaining items left to the consideration of the jury covered the amount allowed for a day’s service at Montpelier, and expenses, at the time of the Republican State convention. The defendant testified that the commissioners met at their room in the State House on that day, and did some work there. The other commissioners had no recollection of being there or doing any work. The auditor and several other officials and clerks testified that they saw the commissioners at the State House on that day. One of the commissioners had a charge for that day, but accounted for it on another ground. The defendant insists that as the evidence stood there was no question for the jury. We think it is clear that there was evidence tending to show that the charges were for a service never rendered, and for expenses not incurred in behalf of the State.
The only argument of fact presented by the State regarding the matters submitted to the jury is that the auditor had scarcely any knowledge as to the defendant’s services and expenses, and was compelled to rely upon his sworn statement that the account presented was a true and correct statement of the time actually spent and the money necessarily paid out in .the discharge of his official duties, and that the jury might well find from the testimony of the defendant himself, in connection with the affidavit, that he had misrepresented or concealed facts material to each of the items submitted. The application of this argument to the items now under consideration requires a further reference to the paragraph of the exceptions which negatives the existence of fraud and misstatement. It is manifest that to make this paragraph consistent with the course of the trial these charges should have been excepted as well as that covering the board of the wife on another occasion. The claim here is not that more time and expenses were allowed in connection with a certain service than were properly chargeable, but that an allowance of a day’s service and expenses has been made where no service was rendered. The defendant procured the allowance of these charges as due him for services rendered and expenses incurred on a specified occasion. The introduction of evidence tending to show that
The remaining claim submitted to the jury was for the recovery of an item allowed the defendant as a part of his personal expenses, which was in fact for the board of his wife on an occasion when the defendant claimed it was necessary that she should be with him to assist in the care of an inflamed eye. There was nothing in the defendant’s account as presented to the auditor that indicated that a part of the charge in question was for the board of his wife, and the State’s evidence tended to show that the defendant gave him no information regarding this when he presented his account. On the State’s evidence, the account as presented was a misrepresentation, which, whether fraudulently intended or not, operated as a concealment of a fact material for the auditor to know in exercising his judgment and discretion regarding the claim, and this deprived the auditor’s allowance of the conclusive effect it might otherwise have had. The recovery of this item involves no disputed question regarding the effect of payment, for the verdict determines that the money was paid without a knowledge of the facts.
It follows from our disposition of the matter last considered that the defendant’s motion that a verdict be directed in his favor was properly overruled. But the judgment must be reversed for the error in permitting a recovery upon the six items that were considered together. The points made in support of the exceptions to the charge and the motion to set aside the verdict are sufficiently disposed of by the views already expressed.
Judgment reversed and cause remanded.