State v. Stout

| Neb. | Jan 15, 1878

Lake, J.

The conclusion to which we have come in this case renders it quite unnecessary for us to notice many of the questions discussed so ably, and at length, by the respective counsel. The action in the court below was brought under the provisions of the act of February 14th, 1877, entitled “ An act to provide in what courts the state may sue and be sued.” The duty of enacting a law upon this subject was enjoined upon the legislature by section 22, Art. YI, of our present constitution, which declares that: “The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought.”

Recognizing the fact that this section of the constitution required legislative action before the state could be properly sued, the act in question was passed, the first section of which provides in what courts, and upon what particular demands, actions against the state may be brought, as follows:

“ Seo. 1. That the several district courts of the judicial districts of the state as now provided for and established by the constitution of the state, and of such judicial districts as may hereafter be provided by law, shall have jurisdiction to hear and determine the following matters:

“ First. All claims against the state filed therein, which have previously been presented to the auditor of public accounts, and have been in whole or in part rejected or disallowed.

“ Second. All claims or petitions for relief that may be presented to the legislature, and which may be by any law, or by any rule or resolution of the legislature, or either house thereof, referred to either of said courts for adjudication.

“ Third. Of all set-offs, counter-claims, claims for damages, liquidated or unliquidated, on the part of the state against any person making a claim against the state, or against the person in whose favor such claim arose.”

This section designates, and includes all the various claims and demands on which the state may be sued, and also the courts in which actions thereon may be brought. From the language employed it is clear that jurisdiction in these matters is conferred upon all the district courts alike in which such suits may be instituted, no distinction whatever being made.

It was suggested in argument that the sixth section confers a separate and enlarged jurisdiction upon the district court for the county in which the capital of the state is located, but we think otherwise. By the first clause of this section it is enacted, that: “ The state may be sued in the district court of the county wherein the capital is situate, in any matter founded upon, or growing out of a contract, express or implied, originally authorized or subsequently ratified by the legislature, or founded upon any law of the state.” This simply designates certain claims on which actions may be brought in .that court, and it may be observed that it covers every claim that can possibly fall within the first class mentioned in section one — the class to which it is said the claims now under consideration belong. It is scarcely possible to imagine a claim, within the design of this act, that would not necessarily be founded either upon a contract, express or implied, or upon some law of the state. Indeed, we think that all of the claims embraced in the first class mentioned in section one, and which, to give the court jurisdiction over them, must be first presented to the auditor of public accounts and by him rejected, either in whole or in part, are very clearly covered by the clause just quoted from section six. Therefore, to hold that the sixth section was intended to give a jurisdiction independent of that conferred by section one, by authorizing actions to be brought on claims without first procuring the action of the auditor thereon, it would follow, necessarily, that the first section, to the extent that it contemplates action by the auditor of public accounts, would be entirely nugatory, and the holder of any claim upon the state, if so disposed, could at once sue, and obtain judgment thereon. He could do this even although the auditor had the authority, and stood ready to audit the claim, and draw his warrant upon the treasurer for the full amount due. Surely such a result could not have been contemplated in the passage of this act. In order, therefore, to give due eifect to each of these sections, we conclude that in no case can an action be maintained against the state, unless the claim on which it is brought be first presented to the auditor of public accounts for adjustment, and by him rejected, in whole or in part. And the petition should contain an allegation to this effect. It may be proper here to say, however, that, as we shall hereafter show, this authority of the auditor in the allowance of accounts is somewhat modified by subsequent legislation requiring the approval of the secretary of state.

But there is another fact that must not be lost sight of in this connection. In passing this act the legislature evidently had in mind the existing statutes relating to the audit of claims against the state, which being m pa/ri materia, must also be considered in order to give to it a proper construction. By the light of these existing statutes it is clear that it is not every possible claim that may arise that the auditor is authorized to audit or adjust. In this particular his duties are very clearly defined, and a bound is set beyond which he cannot go. By the first clause of section 4, chapter IY, Revised Statutes, 1866, it is made the duty of the auditor: “ To audit, adjust, and settle all claims for services rendered, or expenditures made for the benefit of the state, provided such services are rendered, or expenditures made, by authority of law, except only such claims-as may be expressly required by law to be audited and settled by other officers and persons.” Gen. Stat., 1012. Under this provision it is manifest that no claim could be settled by the auditor that was not “ provided for by law,” and should he assume to act in any matter not falling within the authority here given, in disregard of this limitation, such action would be clearly void, conferring no right whatever upon the holder of the claim as against the state.

But recognizing the fact that possibly claims might arise, not anticipated and provided for by the legislature, it was enacted by section nine, of the same chapter, that ££ in case of claims, the adjustment and payment-of which are not provided for by law, no warrant shall be drawn by the auditor, or countersigned, or paid by the state treasurer, but all such claims shall be reported to the next legislative assembly, with such recommendation as the auditor may deem just.” Gen. Stat., 1014. The legislature thereby reserving to itself the right of making such disposition of claims of this sort as the circumstances of each particular case might seem to require. And there is nothing in the legislation of 1877 which in the least degree changes or modifies the law as it then was respecting the adjustment of this class of claims. Their recognition and payment now, as formerly, rest solely upon the discretion and sense of justice of the legislature.

This being our opinion of the effect to be given to the several provisions of the statute bearing on the case, how stand the claims which are the subject of this controversy? In the first place, we might say that inasmuch as there is no allegation in the petition that these claims had been presented to the auditor of public accounts, and by him rejected, either in whole or in part, a cause of action is not set forth. But this is a matter of pleading merely, not reaching the root of the difficulty, to which we prefer to go. In our opinion, had this allegation been made it would have been all the same, the radical defect resting in the character of the claims themselves. It was not claimed on the argument of the ease, nor do we think it can' be, with the least show of reason, that any one of the alleged causes of action were proper for the auditor to have allowed. Indeed, after a most careful examination, we are quite satisfied that there was no law by which he could have justified his conduct had he assumed to pass upon them with a view to their adjustment. The claims all, either directly or indirectly, grow out of the contract between tbe state and the defendant in error for the building of the state penitentiary, and his work under it, and by the laws under which this work was done, the adjustment of all demands, for which the state could possibly be made justly liable, was given to the board of prison inspectors, in whose sole charge the whole business was placed. The auditor had no voice whatever in the matter of ascertaining what was due to the contractor, but he was simply required, from time to time, to draw warrants upon the proper fund in his favor for such amounts as the inspectors certified was due, less the percentage which the state had stipulated to retain until the completion of the work. The claims not being such as the auditor could take cognizance of, it follows that, under our construction of the act of February 14th, 1877, no authority was given to bring the action, and that consequently the district court was without jurisdiction to adjudge upon their validity.

In our discussion of the case thus far, we have proceeded upon the theory that, upon claims which the auditor could adjust and settle, original actions might be brought thereon in case of their total or partial rejection. And if we look alone to the act of February 14th, under which this proceeding was instituted, this theory is doubtless the true one. But we are of the opinion that, by a subsequent act, “To provide for the adjustment of claims upon the state treasury,” etc., approved February 17th, 1877, the right to bring an original action against the state is denied, and that the only mode of procedure by which the court can acquire jurisdiction is by an appeal from the decision of the auditor and secretary of state, whose joint action is now required in the approval of claims. It is provided in the second section of this act that: “ Such appeal may be taken in the manner provided by law in relation to appeals from county courts to such district courts, and shall be prosecuted to effect as in such cases. Provided, however, that the party taking such appeal shall give bond to the state of Nebraska in the sum of two hundred dollars, with sufficient surety, to be approved by the clerk of the court to which such appeal may be taken, conditioned to pay all costs which may accrue to the auditor of public accounts by reason of taking such appeal. No other bonds shall be required.” And in the following section it is further provided that: “ If either party feel aggrieved by said judgment (of the district court), the same may be reviewed in the supreme court as in other cases.”

Thus there is provided a cheap, simple, and very convenient method of obtaining a review in the courts of the decisions made by the officers specially appointed to audit and adjust these claims in the first instance, if the claimant be dissatisfied. And, under the rule laid down by this court under a similar statute respecting the adjustment of claims against counties, it would seem to be the only mode by which the finding of these officers can be reviewed. But, as if' to place this matter beyond all question, the fourth section provides that: “No claim which has been once presented to such auditor and secretary of state, and has been disallowed, in whole or in part, shall ever be again presented to such officers, or in any manner acted upon by them, but shall be forever barred, unless a/n appeal shall have been taleen, as provided m section two of this act.”

In view of the several statutes to which we have called attention, we must hold: First. That no action can be maintained against the state upon any claim that is not first presented to the auditor of public accounts for audit, as the statute requires, and which has been rejected in whole or in part. Second. And that the only mode by which the courts can obtain jurisdiction of such claim is by an appeal, as provided in section two of the act approved February 14th, 1877.

For these reasons the judgment of the district court is reversed, and the case dismissed at the cost of the defendant in error.

Judgment accordingly.