Shanks v. Commonwealth, on Relation, Etc.

292 S.W. 837, 219 Ky. 212, 1927 Ky. LEXIS 334

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 25, 1927
• Status: Published

Opinions

Opinion of the Court by

Judge Thomas

— Affirming.

During "the year 1'9'24 the appellant and defendant below, W. H. Shanks, was the duly elected, qualified and acting Auditor of Public Accounts for the Commonwealth of Kentucky. On August 7 of, that year he .procured a check from the State Treasurer payable to himself for the sum of $269.25, which he afterwards cashed and which was issued pursuant to a warrant that he as such Auditor of Public Accounts, through his deputy, issued in his individual favor for the same amount. This action was filed against him in the Franklin circuit court by the commonwealth, on relation of its Attorney General, to recover from him the amount of the check on the ground that it was both issued and collected without authority of law. The answer denied the illegality al-. leged in the petition as grounds for recovery, and relied on sections 5 and 53 of chapter 112, Acts of 1924, commonly known as the “Budget Act,” as authority for the treasurer to issue and defendant to collect the amount of the check. 'Section 5 of that act appropriates as the maximum amount for “traveling expenses” for the Auditor the sum of $4,000.00, and its section 53 says: “No officer or employe of the state, or any of the departments, boards, commissions or agencies of the state government provided for in this act, shall be allowed any expense incurred in trips outside of Kentucky except on official business, and then only after a request to make such trips has been filed in writing with the Commissioners of the Sinking Fund, and authority to make same has been approved by the said Commissioners of the Sinking Fund.” It was alleged in the answer that the check issued to defendant by the State Treasurer represented the amount of defendant’s expenses in attending a National Convention of State Auditors, held in Salt Lake City, Utah, and which was a short while before the issuing of the check, and that such expenses were incurred by him in the discharge of “official business” within the contemplation of section 53 supra, and that before making the trip or incurring same he procured the authority of the “Commissioners of the Sinking Fund” for the purpose. The-demurrer filed to the answer was sustained by the court, and defendant declining to plead further, judgment was rendered against him and he has filed transcript of the record in this court with motion for an appeal.

Two arguments are vigorously made against the correctness of the judgment, which are: (1), that the expenses incurred by defendant in attending the National Convention of the State Auditors was “official business,” but, if mistaken, then (2), the authority to1 make the trip and to incur the expenses, given to him by the Commissioners of the Sinking Fund, was and is conclusive of the question and foreclosed the authority of the court to inquire into or adjudicate it. The commonwealth controverts both of those arguments, and in addition urges (as was set out in the petition and admitted by,but sought to be avoided in the answer) that defendant did not comply with the provisions of section 359a-l by failing to take and file receipts for each item of his expense as therein prescribed, and further, that he did not request the Commissioners of the Sinking Fund “in writing” the authority to incur the expenses; but, since the real purpose of this action is to obtain a construction of sec tion 53 supra, of the Acts of 1924, we have determined, in view of the conclusions reached, to- disregard the last two contentions made by the commonwealth and to address ourselves in this opinion exclusively to arguments (1) and (2) supra, which we will now proceed to do in the order mentioned.

1. In disposing of argument (1) we are -confronted with the same difficulty frequently met with by us, i. e., that it is sometimes much easier to determine what lies outside of the meaning and scope of the word or phrase under consideration than it is- to define with precision what is included by it, and which we have found by -our investigation to be- particularly true with reference to the phrase “official business.” The word-s are ordinary -ones, and under the well settled rule they should receive the interpretation, in the absence of something to the contrary, that is usually understood by people generally in using them. To the average mind the words convey and would be understood as including all the activities of the officer in the discharge of his official duties, which are always expressly prescribed by statute or necessarily inferred from express provisions.

.We have numerous statutes prescribing the duties ■of all state officers, including that of Auditor of Public Accounts, and we- have been unable to find, after diligent search, nor has learned counsel pointed out to us any statute, either expressly or by necessary implication, authorizing the Auditor of Public Accounts to expend, the public funds of the commonwealth for purposes of an educational nature only, and which is necessarily the sole purpose of attending the convention at 'Salt Lake City. The only benefit that.the people of the commonwealth could possibly reap from such an expenditure, if any, would be exceedingly remote, and even such benefit would not appertain to the correctness and accuracy with which the auditorial duties.1 .should be performed (and- which is the primary purpose of the office), but relate more to the method by which such accuracy and correctness were obtained. As is pointed out in the answer, when its substance is stated, the information to be gained by attendance upon such -conventions was for the purpose of keeping abreast with the advanced methods of bookkeeping. The propriety of new and advanced legislation affecting the duties of -any officer comes within the official duties -and business- of the legislator more than that of the officer. In human affairs it is scarcely possible to imagine anything that upbuilds and advances even a single member of society that does not also remotely benefit all other members of the same society. Following out that idea the people served by any officer would be remotely benefited by his improved equipment for the discharge of the duties of his office, and everything that even slightly added to his equipment could be said to be a part of his official business, if such remote consequences to the public are to be looked to in measuring the definition of the words. So that, if it is “official business'” for the Auditor of Public Accounts to attend such a convention at any place within the limits of the United States, then it -would be, by the same token, official business for him to attend conventions in other countries and nationalities of a similar nature, since the statute under which defendant seeks to justify his expenditure, as being incurred in the discharge of “official business,’’ does not limit the incurring of them or the performance of such alleged official business within the confines of the United States, but only when they are incurred outside of Kentucky, which necessarily means anywhere on the globe.

Likewise, if such trips may be classified as ‘ ‘ official business” because of the remote benefits that the people of the commonwealth might reap thereby, then with equal propriety must it be held that the Treasurer, the Secretary of State, the Banking Commissioner, Commissioner of Motor Transportation, and all other officials and heads of the various state departments would likewise be discharging their “official business” when in attendance upon such conventions of similar officers held outside of the limits of the commonwealth. It would include the Governor and the members of this court, since bar associations held throughout the world are as much enlightening in their programs to judicial officers in the discharge of their duties as is the proceedings of a convention like the one under consideration. ¥e are convinced that the construction contended for is not only exceedingly Utopian in character but was never intended by the legislature in the enactment of the statute, and which brings us to a brief inquiry as to the purpose the legislature had in view in enacting it.

It is a matter of common knowledge and a part of the history of the country that a great many official duties involved in the transaction of official business has 'been and must be performed outside of the |state, and which has been so from, the time it became such. With the increase of population, public business and intercourse between the states is necessarily followed by an increase of the amount of official business to be performed outside of the state. Until the enactment of the statute in question, or at any rate up to comparatively recent years, various officers having- official duties calling them outside of the state were their own judges as to whether they would incur the expenses, to be paid always out of the public treasury. If it was strictly official business the expenses would be paid with no question made, but experience taught on many occasions the 'expenses incurred, although on official business, exceeded the financial benefit obtained by the public, and on some occasions such expenses had been demanded and sometimes paid when the business transacted by the official outside of the state only remotely, if at all, appertained to the public business. Therefore, in enacting section 53 supra, the legislature had in mind, as it did do therein, to, not only prohibit the incurring of such expenses, except in the transaction of official business, but, likewise-, to prohibit the officer incurring them without the approval of the Commissioners of the Sinking Fund.

Some illustrations will clarify what we have said. A fugitive from justice, who, under the Constitution of the United States was extraditable, might be arrested in the state of Washington, either under a misdemeanor charge or that of a low grade of felony. The cost incurred in apprehending him and sending the sheriff of the county after him would greatly exceed any possible beneficial purpose in bringing him back to the commonwealth. Again, the state might be financially interested in some litigation pending in New York, but -only to the extent of, say $25.00, when the expenses of the Attorney G-eneral to look after the matter on behalf of the state might amount to ten or twenty times that much. The legislature, realizing such facts, enacted that notwithstanding tlie foreign business might be official business, yet no expenses should be incurred in looking after -or attending to it without first obtaining the authority of the commissioners of the -Sinking Fund. If -such was not the intention of the legislature in enacting the statute it is difficult for us to conceive what could have been its purpose.

It must be remembered that we are not dealing with a case where the legislautre in express terms has authorized the expenditure and thereby, in effect, said that it was incurred in the discharge of official business. To illustrate; if in this case the legislature, either in sections 5, 53 or any other part of the statute supra, had expressly said, that traveling expenses in attendance upon such conventions as the one here involved should be regarded as ‘ ‘ official business ’ ’ an entirely different question would be presented; but even in that case the legislative fiat in authorizing such expenditures would not necessarily conclude the courts in determining whether the expenditures were for a public purpose, which is the only one for which taxes may be levied and collected under the provisions of section 171 of the Constitution. See Bosworth v. Harp, 154 Ky. 559, 157 S. W. 1084, and others of like import, some of which are referred to therein. But we will have more to say on this phase of the case in disposing of argument (2), post.

Independently of the foregoing considerations, our investigation of the question convinces us that all courts, before which the question now being considered has been presented, have determined it adversely to appellant’s contention. The direct question involving the right of officials to incur expenses to be paid out of public funds in attendance upon associations and conventions-, supposed to be enlightening and improving to the particular officer, was involved in the cases of Beauchamp v. Snider, 170 Ky. 220, 185 S. W. 869; Waters v. Bonvouloir, 172 Mass. 286, 52 N. E. 500; Stevens v. Sedgwick Co., 5 Col. App. 115, 37 Pac. 948; Smith v. Holovtchiner, 101 Neb. 248, 162 N. W. 630, 1917E L. R. A. 331; Hitchcock v. State, 34 S. D. 124, 147 N. W. 284; James v. Seattle, 22 Wash. 654, 79 A. S. R. 957, 62 Pac. 84, and Lake County v. Neuenfeldt (Ind.), 136 N. E. 580. The Snider case involved the right of -a county school superintendent to take credit by certain expenses made by her in the alleged discharge of the duties of her office, and which, of course, she claimed was “official business.” One item of expenses for which she sought a credit was $31.65 incurred while attending the sessions of the Kentucky Educational Association at Louisville. We disallowed it for two reasons, one being that the involved statute permitted and allowed only “necessary expenses” of the school superintendent in discharging the duties of her office; and the other was, that such expenses should be made in the county. It was held that the expenses incurred in attending the session of the association were not necessary to the discharge of the duties of the office, although in a remote way it might serve to further equip the county superintendent for the discharge of her “official duties,” and in disposing of that question we said:

“Many things might be imagined to, in a remote way, make the school system of the county more efficient; for instance, that the school trustees of the county be highly educated men, and the same as to the members of the board. It would even serve to advance more rapidly the pupil if its parents were sufficiently educated to assist in teaching and instructing- it when not in school, and it would, perhaps also, at least according to the views of some, assist to have well equipped baseball parks and golf links for the purpose of affording proper recreation and physical development. It might also be regarded by some as essential to the more- efficient development of the schools, that each child be neatly and tidily dressed and that none shall excel others in this particular, but all be placed upon a par in the matter of dress. But, manifestly, even though it be conceded that in some possible way these things might subserve a useful purpose in the school, the board would be wholly unauthorized to expend any of the money for such purposes.”

We likewise held that the expenses were not incurred in the county as the then prevailing statute required, but both questions were squarely presented and both determined. So that, the fact that the determination of only one of them would have sufficed to settle the case does not make what was said in determining the other obiter dictum. We so held in that case, notwithstanding the county board of education was vested with a large discretion as to expenses incurred by it and its members “in making an efficient system of schools in the county.” 'What we said there we regard as having a greater application to the facts of this case, since all the functions of the officer there involved related to education and not to merely ministerial duties as are those of the Auditor. Since rendering that opinion, the legislature has expressly enacted that attendance by county school superintendents and teachers upon the meetings of the Educational Association shall, not only be a part of their official duties, but that the expenses incurred may be paid out of the public treasury. Indeed, our statutory school law as so amended makes the State Educational Association a part of the machinery of the public school system of the state, upon the theory that all of su'ch requirements have a direct tendency to the betterment of public educational facilities. There is no such legislative declaration concerning’ the expenses here involved, 'and we are to determine it solely from a proper definition of what is involved in the phrase “official business,” the same as we were called upon in the Snider case to determine the scope of .“necessary (official) expenses.”

In the Waters case the city council of the city of Holyoke, in Massachusetts, undertook to pay the expenses of a committee, composed of members of the council, while in attendance upon the American Municipalities Convention at Detroit, Michigan. The council was authorized to appropriate money for certain enumerated and “other public purposes.” The court held that the expenses of the committee in attendance upon the convention, although highly educational in equipping the members of the council for the discharge of their official duties, was too remote to be regarded as a public purpose, and an injunction was issued enjoining the payment.

The James case involved the right of a member of the city council of Seattle to reimbursement out of the city treasury for his expenses while visiting other cities outside of the state for the purpose of securing information concerning “waterworks, street paving, street lighting, terminal facilities and other municipal matters, which are now, and constantly will be, coming before the legislative and executive departments (of the city) for consideration.” The expenses were expressly provided for by an ordinance authorizing the tour of inspection.' It was argued in behalf of the councilman, with much more plausiblity than may be done in this case, that the information he obtained, though educational in its nature, directly inured to the benefit of the city taxpayers whom he represented by better equipping him to look after such matters for his city, but the court took a different view, and in doing so said: “And we think the rule thus announced is the established one, and in consonance with all sound authority. ’ ’

In the Lake county case the party seeking to recover the expenses was the superintendent of the Lake county poor asylum, and his expenses were incurred in attending, after a written request to do so- by the -secretary of the Board of State- Charities, a national meeting of state charity organizations. Notwithstanding the involved statute required the county superintendent to “be guided by suggestions which may be made to him by the Board of State Charities” (and which was done in that case) the court held that he was not entitled to hi's expenses, and in doing so said:

“It may be, and doubtless is, true that meetings such as those attended by appellee and his wife have their educational value, but that fact would not, in and of itself, authorize the allowance of the- claim. On the -same theory, boards of commissioners would be authorized to pay the personal expenses of circuit judges and prosecuting attorneys incurred by them while attending state and national bar associations.. Public officers -are presumed to have the neccessary qualifications. ’ ’

In the Smith case the claimant whose expenses were involved was president -of the board of education -of the city of Omaha. It directed him to attend the “Fourth International Congress on School Hygiene- to be- held at Buffalo, New York,” and to visit other technical schools. He expended $250.00 in making the trip, but he was not allowed by the court to recoup- it upon the ground that the expenses were not incurred (except remotely) for a public, purpose, to defray which the public funds could b¿ appropriated, and in doing so the opinion said:

“Counsel for -appellants believes that modern conditions require a more liberal rule. While it' cannot be disputed that the municipality might derive great benefit from what its- 'delegates might learn at the -convention, yet experience has shown that when the control -of a fund and the use of it may be lodged in the- same person, a situation arises which is subject to such flagrant abuses, that courts have thought that this was an additional reason for the rule of -strict -construction made to protect the rights of taxpayers.”

The fact that the court -also found that the- expenses incurred in attending the international convention were intermingled with those incurred in visiting the “technical schools” formed no basis for the opinion. The fact of commingling was adverted to only for the purpose of showing that if the expenses in attending the school were legitimate (but which was not decided), they could not be separated from the illegal item of expenses of attending the convention. Other cases besides those mentioned above are Gregory v. Bridgeport, 41 Conn. 76 19 Am. Rep. 485, and Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep 648.

But it is argued that all of the above cases except the Waters, James and Lake county ones are not applicable to the question here involved, because their facts were not identical with those of this case, and, because of the peculiar phaseology of the statutes involved in each of them. That same argument is made with reference to the Snider case supra, but which we have hereinbefore pointed out is a wrong interpretation of our opinion therein. The essential question determined by the court in each of the cases referred to'was, that the expending of public funds in attendance upon conventions of voluntary organizations, either within or without the state, was not for a public purpose, nor were they incurred in the discharge of official duties, although some of them were where the expenses "were incurred by officers whose primary duties were to improve, maintain and carry out the educational system of the state, and the attendance by them upon the particular convention named was much more directly calculated to further that purpose than the expenses incurred by appellant in the official business, as his counsel claim, of better equipping his office of Auditor in discharging its multiplied duties.

In view of the foregoing we do not feel authorized, especially in this period of great private and public extravagance, to sanction the character of expenses here involved without express legislation permitting or requiring it, or to overrule all the courts before which the question has been presented, solely upon what might be termed the fantastic or Utopian ground that we are living in a day of rapid progress and increasing the duties of government to meet modern conditions. Such an argument loses sight of the fact that an increase of official duties does not change their nature. The change is only in degree or amount and not in kind or character. The true definition of ‘ ‘ official duties ’ ’ and ‘ ‘ official business” is not affected by multiplication. They are the same now that they have ever been, and for ns to adhere to these long settled definitions is not to assume a provincial attitude.

But it may 'be insisted that in view of the fact that the legislature since the opinion in the Snider case has legalized the expenses therein disallowed, and has also-expressly provided for the expenses of county tax commissioners convening in conventions at Frankfort once each year and paying their expenses in doing so (section 4114Í-12); and, further, also provided by an act at the 1926 session of the legislature (now section 4396-9 of the Supplement to the Kentucky Statutes) for the attendance by the Superintendent of Public Instruction at public expense upon educational conventions and conferences-within or without the state, it has thereby adopted a policy which we should follow in this case and to thereby hold that the expenses here involved are recoverable. But we do not -give the -force and effect to those statutes-that the argument does. On the contrary, the fact that the legislature, when it saw proper to authorize such expenses, did so by express enactment, is strong evidence to our minds that it did not intend to do so where the involved statute was silent upon the subject. We, thereifore, conclude that the expenses here involved were not incurred in the discharge of any “official business,” and which brings us to the second argument above.

2. In disposing of argument (2), we deem that little need be said. In the first place (waiving the question of •the constitutionality of the statute under the opinions in the cases of Pratt v. Breckinridge, 112 Ky. 1; Williams v. Wedding, 165 Ky. 361; Green v. Caldwell, 170 Ky. 571; L. & N. R. R. Co. v. Greenbrier Distilling Co., 170 Ky. 775, and Hoblitzell v. Jenkins, 204 Ky. 122, if this argument be correct), the language of section 53 of the statutes supra, is susceptible to no -such construction as is attempted byt counsel. The first part of the section prohibits the incurring -of any expenses, on trips outside of the state “except on official business.” Immediately following that language, and separated only by a comma, is this: “and then only after a request to make such trip has been filed in writing with the Commissioners of the Sinking Fund,” etc. There is nothing in the language remotely intimating that it was the intention of the legislature to vest the Sinking Fund Commissioners with authority to determine whether or not the trip was to be made on official business. As hereinbefore intimated in discussing argument (1.), it was clearly the intention of the legislature to submit to the Sinking Fund Commissioners the propriety and wisdom of incurring the expenses, notwithstanding the trip might be indisputably in the discharge of official duties. The reason for it, we have likewise heretofore pointed out. In each of the cases hereinbefore discussed the involved expenses had been passed on by the respective boards and councils whose duties it was to do so, and the court in each case held that such actions by the boards of the city councils did not deprive the court of its right to inquire into and adjudicate the question as to their validity; and in the Waters, 'Snider and Lake county cases the language of the involved statutes more strongly indicated the conclusiveness of the action of the board or superior authority in passing upon the propriety of the expense, than does that of our statute xmder consideration, but the court, nevertheless, took jurisdiction and adjudicated the validity of the expenses involved, and such has been the uniform course of this court under similar or analogous circumstances.

The fiscal courts of counties have exclusive management of their fiscal affairs. They pass upon the validity of claims against the county as well as the propriety of contracts which it makes on behalf of the county. In . doing so it necessarily determines that its action is valid, but that determination has never been considered as conclusive and may always be inquired into by appropriate procedure. Even the action of the legislature itself in passing a particular statute does not conclude the courts from determining its constitutionality, and such is the case where it attempts to appropriate public funds, which it may do for public purposes only. In making such appropriations it necessarily determines that they are for public purposes, but the courts are not thereby barred or concluded, as is illustrated by the Harp case supra. and other similar ones. Moreover, it will be observed that in the 'Smith case supra, the court observed: “ Yet experience has shown that when the control of a fund and the use of it may be lodged in the same person, a situation arises which is subject to such flagrant abuses that courts have thought that this was an additional reason for the rule of strict construction made to protect the rights of taxpayers.” With us, the Board of Commissioners of the Sinking Fund is composed of designated state officers, one of whom is the Auditor of Public Accounts. Other national conventions of the state officers filled by other members of the board are or might be organized. Ealch of them might desire to attend his association’s respective national convention, and it is thereby rendered easy to see why its authority to make the trip or trips should not be conclusive upon the court'. Of course, we do not mean to intimate that any of the present members of the board could or would be influenced (by any such consideration, but the circumstance, nevertheless, furnishes “an additional reason for the rule of strict construction made to protect the rights of its (state’s) taxpayers.”

Before closing the opinion, which is now already too long, it is proper to say in behalf of appellant that the case was really manufactured by him for the sole purpose of obtaining a construction of the statute and a consequent declaration of his duties as Auditor of Public Accounts, since he must issue all warrants of a similar nature to whomsoever payable. It expressly appears in the record that he procured the check and collected it in order to make a case wherein the question could be tested; and after doing that he expressly requested the Attorney General to bring the suit, all of which he- declares in his pleading and which the Attorney General confirms. So that-, his' motive can be viewed in no other light than a worthy one, and not for any selfish purpose.

For the reason indicated the appeal is granted, and the judgment is affirmed. Whole court sitting, Chief Justice Clay and Judges McOandless and Dietzman dissenting.