Preece v. Rampton

492 P.2d 1355, 27 Utah 2d 56, 1972 Utah LEXIS 909

• Court: Utah Supreme Court
• Decided: January 17, 1972
• Docket: 12439
• Status: Published

Opinions

ELLETT, Justice:

This is an appeal from the ruling in a declaratory judgment action which was brought to determine the constitutionality of Section 67-4-4, U.C.A.1953. This section removes from the state auditor the duty to draw warrants upon the state treasurer and places it with the department of finance.

The trial court held that the section was unconstitutional in that it usurps the constitutional duties and prerogatives belonging to the state auditor.

The precise question was before this court in the case of Allen v. Rampton,¹ and we think that case is determinative of the instant matter.

The relevant section of the Constitution which was involved in the Allen case and in the present matter is Article VII, Section 17, which reads as follows:

The Auditor shall be Auditor of Public Accounts, and the Treasurer shall be the custodian of public moneys, and each shall perform such other duties as may be provided by law.

The cases cited in the Allen decision are to the effect that the duties being performed by the territorial treasurer and the territorial auditor at the time of the adoption of the Constitution are the duties which the Constitution imposed upon the state treasurer and the state auditor. The Allen case squarely holds that the duties of the state treasurer are those which were being performed by the territorial treasurer at the time of the adoption of the Utah Constitution.

While the Constitution provides that additional duties may be imposed upon these two officers, the language cannot be tortured into meaning that any of the duties and responsibilities which they had at the time can be diminished.

The duties of the territorial auditor were set out in Volume 1, C.L.U.1888, at page 251 as follows: “The auditor of public accounts shall examine and audit all public accounts connected with the pecuniary affairs of the Territory, . . ..”

Volume 1, C.L.U.1888, at page 253 provides that the territorial auditor should procure a suitable seal of office and “impress, said seal on all warrants, . . ..”

The legislature enacted Chapter 17, Section 10, Laws of the Territory of Utah 1890, providing that the territorial treasurer pay out funds only on warrants issued by the territorial auditor.

The early case of Nelson v. Clayton, 2 Utah 299, was one wherein the warden of the territorial prison sought a writ of mandamus to compel the territorial auditor to draw a warrant for expenses lawfully incurred in connection with the management of the territorial prison. The trial court granted the writ, and the Supreme Court affirmed.

It thus clearly appears that the auditor at and prior to statehood drew all warrants upon the treasurer for the expenditure of money in the state. To take this duty away from the state auditor is to detract from the constitutional duties of his •office, which cannot he done.

The actual typing of the warrants is ministerial in nature, and there is no basis for the auditor to complain if that work is •done by the department of finance. However, the presenting of those warrants to the state treasurer calls for discretion, and the auditor should be the one to decide if .a warrant is to be presented for payment. It was, and is, the duty of the state auditor to verify the correctness of accounts before they are paid.

Under the present statute the auditor as .a practical matter is limited to a verification ■of the accounts of the various departments .after the payments have been made by the .state treasurer.

The department of finance is by statute 2 attached to the office of the governor and is created to assist him in his constitutional duties. One looks in vain in the Constitution to find where the governor needs any assistance in presenting warrants to the state treasurer. In fact, it is not now and never has been any concern of the governor to present warrants to the state treasurer or to determine if funds were available to pay them. These are functions of the office of the state auditor, and if the governor can’t assume them, it seems that a commission established to assist him could not do so either.

The dissenting opinion relies on two cases which are distinguishable from the case now before us: Torres v. Grant³ and Yelle v. Bishop.⁴

Torres v. Grant was decided under the Constitution of New Mexico, which provided, “Money [to be] paid upon warrant drawn by the proper officer,” thus indicating that officers other than the auditor could draw warrants.

In Yelle v. Bishop the decision was proper, for the Constitution of Washington provided that “the Auditor shall have those duties prescribed by law.”

In the recent case of Allen v. Rampton⁵ we held that the constitutional duties of the state treasurer were those being performed by the territorial treasurer at the time of the adoption of the Constitution. In like manner we now hold that the constitutional duties of the state auditor are those which the territorial auditor was then performing and that the constitutional provision that other duties may be imposed upon him does not permit the legislature to relieve him of any of those constitutional duties.

The issue before us is very narrow and does not require us to hold unconstitutional the law which created the department of finance. What we do hold is that before the state treasurer can constitutionally pay a warrant, he must have the approval of the state auditor.

Long acquiescence by state auditors has permitted vouchers to be issued, some of which undoubtedly are outstanding. All such vouchers are valid and should be honored.

The judgment is affirmed. No costs are awarded.

CALLISTER, C. J., and HENRIOD, J., concur.

1 . 23 Utah 2d 336, 463 P.2d 7 (1969).

2 . Section 63-2-1, U.C.A.1953.

3 . 63 N.M. 106, 314 P.2d 712 (N.Mex.1957).

4 . 55 Wash.2d 286, 347 P.2d 1081 (Wash.1959).

5 . Footnote 1 above.