118 Ky. 912 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
Appellant Sweeney qualified as Auditor on December- 27, 1899, and gave bond, with tbe Fidelity & Deposit Company of Maryland as surety. This action was brought upon bis bond against him and bis surety to recover for an alleged
No. 6,280. Jan. 31,1900, to D. R. Collier.......$10,044 18
No. 6,320. Feb. 2, 1900, to D. R. Collier........ 2,599 97
No. 6,330. Feb. 3, 1900, to A. C. Roberts........... 56 00
No. 6,331. Feb. 3, 1900, to C. F. Ward, etc_______ 646 25
No. 6,345. Feb. 7, 1900, to C. C. Mengel, etc...-.. 12,612 95
No. 6,346. Feb. 7, 1900, to E. E. Power, etc ..... 4,022 83
No. 6,902. Feb. 21, 1900, to John Shannon, etc.., 8 00'
$29,990 13
On the trial it was conceded that warrant 6,331, for $646.25, was for a demand properly, payable out of the treasury, and no recovery was sought thereon, and no proof was. offered as to warrant 6,902, for $8. The other warrants, were on account of active militia called into service by W. S. Taylor, as Governor, on January 30, 1900, after the assassination of William Goebel. The court allowed the defendants credit, by warrant 6,280 of date January 31, 1900, for $10,044.13, as that was issued before the Legislature had acted on the contest as to the office of Governor, and decided, in favor of Goebel; but the other warrants he held illegal,, as they were issued after the action of the General Assembly declaring Goebel governor, and after he had taken the oath, of office. From this judgment the defendants appeal, and. the Commonwealth prosecutes a cross appeal.
It is insisted for the State that the Auditor had no right to expend on account of the active militia anything outside of' the military fund, under section 2704, Ky. St., 1903. “There is hereby appropriated the sum of ten thousand dollars per annum, to be paid out of the treasury, from the resources of the Kentucky war claim as the same shall hereafter be collected from the United States, which together with all
In the case before us, the Governor, in the exercise of the discretion committed to him by law, ordered out the militia. He was the only person to determine whether the militia should or should not be ordered out, and his detérmination is conclusive. We can not inquire as to whether there were sufficient grounds to justify his action, as by the statute he was authorized to call out the militia whenever he deemed it necessary for the welfare of the Commonwealth-When the governor had called the militia into service, they were in active service, and therefore entitled to pay as provided in section 2705, above quoted; and, the statute making no other provison, this pay must come out of the general fund in the treasury. In the past 25 years the militia has
When the militia is called into active service, the men must not only be paid, but they must be fed, for no army can be kept together without food; and therefore it is provided by section" 2707, Ky. St., 1903, as follows: “The acts of Congress for the government of the miltia of the United States are in force in this State. The articles of war and laws governing the army of the United States shall, so far as applicable, be a part of this law, and also the rules and regulations for said army, so far as consistent herewith, and subject to such modification as the governor may direct.” By the United States regulations, the proper officer makes his requisition upon the Treasurer for the amount of money necessary, and uses the money, when paid over to him, in feeding the troops and^ providing for them. Of necessity, the same thing must be done with the State militia when called into active service. The adjutant gneral is e* oficio quartermaster) general of the militia, and the amount of check 6,280, for $10,044.13, was paid to him on a requisition certified by him, and approved by the Governor by his own signature.
Counsel for appellee refer us to Ristine v. Sinking Fund Com’rs, 20 Ind., 328, Ingram v. Colgan (Cal.) 38 Pac., 315,
As to the other items, a different question is presented. The defendants offered proof tending to show that the Legislature did not take legal action upon the contest for the office of governor until February 19th, which was after all the money here in controversy was paid out, 'but the court declined to admit this evidence. The defendants also introduced proof tending to show that all of the money represented by these checks was to pay claims that were just demands against the treasury, insisting that, if the claims were not properly authenticated when paid, still, if they were in fact just claims, the State was not in fact damaged in any way by their payment, and there should be no judgment against the auditor on his bond'. The court declined to make a finding on this subject, being of opinion that the auditor was responsible if he had paid out the money on the claims without the approval of the governor. The claims were all approved by W. S. Taylor as governor, but were not approved by Gov. Beckham, who qualified as governor on February 3d, after the death of Goebel. In Terrell v. Rowland, 86 Ky., 79, 4 S. W., 825, it was held that, where an executor had paid a claim which was not properly verified
Appellee’s counsel rely upon United States v. Kechler, 9 Wall., 83, 19 L. Ed., 574, and Smythe v. United States, 188 U. S., 163, 23 Sup. Ct., 279, 47 L. Ed., 425, but these cases rest on the strict rule against public officers which is upheld by the United States Supreme Court. This rule is rejected in many of the States, and the latter view has been followed by this court. Johnson v. Fleming, 50 S. W., 855, 21 Ky. Law Rep., 4. Appellant was a disbursing officer, and, if- he made a mistake to the sufficiency of the voucher for which he drew his warrant, he took the rMt. Still, if the debt was justly payable by the State, and the same result might have been reached by mandamus, he may show the facts here in defense of this suit. The vouchers upon which he paid the money being properly signed by 'Taylor as> governor, and Collier as adjutant general, the disbursing agent, if he was mistaken as to the right to the offices which they were exercising, is not responsible to the State if the justice of the claims which he paid as debts against the State' is established; for in this event his action, though irregular, has in no wise prejudiced the State. We therefore conclude that, if the demands paid by the auditor were of this character, he may show that fact in this suit to avoid liability on his bond.
It remains, then, to determine what was the character of the claims paid by the'auditor. As we understand the evidence, the money was paid upon the pay rolls of the militia while in active service from January 30 until February 5, 1900, and for supplies for their subsistence during that time. As we have said, the troops were regularly called into service, and the State was liable for their pay as well as for their supplies while in service, unless they ceased; to
We therefore conclude that under the peculiar circumstances of the case the pay rolls for the soldiers and the expenses for their necessary subsistence were proper claims against the State, and that no recovery should be had on the auditor’s bond for these things herein, although he paid them without proper vouchers. This conclusion makes it unnecessary for us to consider the other questions made in the argument, as they do not seem to be material for the decision of the case under the view we have indicated.
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Judge Paynter dissents.