State ex rel. Sayre v. Moore

25 L.R.A. 774, 59 N.W. 755, 40 Neb. 854, 1894 Neb. LEXIS 367

• Court: Nebraska Supreme Court
• Decided: June 5, 1894
• Docket: No. 6470
• Status: Published

Opinions

Ragan, C.,

The legislature of 1893 passed an act (House Roll No. 278)dn'words and figures as follows:

“An act for the relief of Scott’s Bluff county, Nebraska, and to appropriate $7,495.73 to said county.

“Be it enacted by the Legislature of the State of Nebraska:

“Section 1. That there is hereby appropriated out of any funds in the state treasury, and not otherwise appropriated, the sum of $7,495.73, for the relief of Scott’s Bluff county? and to reimburse said county for expenses incurred in the trial of one George S. Arnold upon the charge of murder, at the adjourned July term, 1889, of the district court within and for said county; and the auditor is hereby authorized to draw his warrant upon the state treasurer for the above amount in favor of said Scott’s Bluff county.”

On August 5, 1893, the treasurer of Scott’s Bluff county duly demanded of the auditor of public accounts that he ■draw his warrant upon the state treasurer, payable to the treasurer of said Scott’s Bluff county, for the amount so appropriated by the legislature. The auditor declined to ■comply with this request, and thereupon the treasurer of ■Scott’s Bluff county, as relator, filed in this court an application for a peremptory mandamus commanding the auditor to draw such warrant. The auditor answered the application and alleges the following as reasons for declining to draw his warrant:

“And this respondent further says that under the provisions of the constitution and laws of the state of Nebraska, the auditor of public accounts has authority to examine and adjust all claims against the state when presented to him, and to refuse to pay the same, when, in his opinion, the same are illegal or unjust. And this repond-, ent alleges that he found said claim for said Scott’s Bluff county unjust and illegal; that the act making the appropriation is contrary to the letter and spirit of the constitution of the state of Nebraska; that the said county of Scott’s Bluff was put to some expense bjkreason of said trial, but the amount thereof this respondent alleges,’upon information hud belief, was-a "much less -sum, than -the sum alleged to have been appropriated by the legislature. * * * This respondent further alleges that heretofore, to-wit, on the 20lh day of June, 1893, one Nellie M. Richardson * * * served upon this respondent * * * a notice of an attorney’s lien upon said sum * * * appropriated by the legislature of the state of Nebraska for the use and benefit of said Scott’s Bluff county, which said notice is in words and figures following:

“ ‘notice.

“ ‘ To Eugene Moore, Auditor Public Accounts of the-State of Nebraska: You will take notice that I, Nellie M. Richardson, do claim an attorney’s lien upon the funds appropriated by the legislature of the state of Nebraska to reimburse Scott’s Bluff"county for expenses incurred in the trial of George S. Arnold, in the sum of $1,500.

“‘Nellie M. Richardson.’”

To this answer the relator demurs.

We will first dispose of the question of-the attorney’s lien attempted to bellied against this appropriation. Section 8, chapter 7, page 90, Compiled Statutes of Nebraska, provides “An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.” Now, this money is not in Richardson’s hands. It is in the hands of the treasurer of the state of Nebraska, and neither the state nor its treasurer are, or have been, adverse parties to any action or proceeding brought or had by Scott’s Bluff1 county, for whom it appears Richardson is attorney. Richardson then has not brought herself within this statute, and .that is one reason, at least, why she can have no lien, on this. money ; but if Richardson has rendered, services for Scott’s.Bluff" county, she can file her claim against the county, with the ■ county clerk thereof, and have the county authorities of that county pass upon its merits. This court cannot audit her claim against Scott’s Bluff county. The law has provided ample remedies and methods of procedure for all persons having claims against a county, and these remedies must be pursued. An attorney will not be permitted to use this court in a mandamus proceeding for the purpose of having the merits or amount of his claim against a county adjudicated. It may well be doubted if in any case an attorney’s or other lien can be successfully asserted against . money appropriated by the legislature to any person or corporation, public or private, while in the hands of, or under the control of, an officer of the stale. It would be contrary to good public policy and detrimental to the due administration of the affairs of the state to permit its officers to be harassed and hindered in the discharge of their duties by parties asserting rights, either by way of attorney’s liens, attachments, or garnishment proceedings, or otherwise, to funds in the hands of, or under the control of, such officers. The claim of Richardson filed with the auditor is not a lien on the money appropriated by the legislature to Scott’s Bluff county, and the auditor may disregard such lien with impunity.

The next reason assigned by the auditor for not drawing the warrant to pay the appropriation is “ that the act making the appropriation is conti ary to the letter and spirit of the constitution of the state of Nebraska.” We quote Cooley, Constitutional Limitations (4th ed., p. 210), as follows: “ When a law of congress is assailed as void, we look into the national constitution to see if the grant of specified powers is broad enough to embrace it; but when a state law is attacked on the same ground, it is presumably valid in any case; and this presumption is a conclusive one, unless in the constitutioirof the United States, or of the state, ' we;are unable to-'discover that it is prohibited. We look in the constitution of the United States for grants of legislative power, but in the constitution of the state to as- • certain if any limitations have been imposed upon the complete powers with which the legislative department of the state is vested in its creation. Congress can pass no laws but such as the constitution authorizes either expressly or by clear implication, while the state legislature has jurisdiction of all subjects on which its legislation is not prohibited. The law-making power of the state recognizes no restraints, and is bound by none, except such as are imposed by the constitution. That instrument has been aptly termed a legislative act by the people themselves in their» sovereign capacity, and is, therefore, the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute.” Tested by the rule quoted from this eminent jurist, there is nothing in the constitution of Nebraska that prohibits the legislature of the state, representing, as it does, the sovereignty of the people, from appropriating money to reimburse a county for expenses incurred by it in the prosecution of criminals. True, there is no legal obligation resting on the state to pay such expenses, but the power of the legislature to appropriate money is not limited by the legal obligations of the state. We quote again from Cooley, Constitutional ■Limitations (p. 599), as follows: “It must always be conceded that the proper authority to determine what should, and what should not, constitute a public burden is the legislative department of the state. * * * And in determining this question the legislature cannot be held to any narrow or technical rule.' Not only are certain expenditures absolutely essential to the continued existence of a government, * * * but, as a matter of policy, it may sometimes be proper and .wise to assume other burdens which rest• entirely - on considerations of honor, gratitude, -or charity. * ■ *. ■ *v. There .will, ■ therefore, ■ be ■ necessary expenditures, and expenditures which rest upon considerations of policy only, and in regard to the one as much as to the other, the decision of that department, to which alone questions of state policy are addressed, must be accepted as conclusive.” This appropriation may be unjust. In making it the legislature may have acted unwisely; but of these things the legislature itself is sole judge. The courts cannot inquire into either the motive or justness of the law. Their only concern is with its legality.

Finally, the auditor alleges, as a reason for his refusal to draw this warrant, that by the constitution and laws of «this state he has authority to examine and adjust all claims against the state, and that while Scott’s Bluff county was put to some expense in the prosecution of Arnold for murder, the amount of such expense, he, the auditor, is informed and believes, is much less than the sum appropriated by the legislature. In other words, the auditor’s contention here is that, notwithstanding the legislature appropriated a specifically named sum of money for the relief of Scott’s Bluff county, and to reimburse it for the expense incurred by it in the prosecution of Arnold, yet he, the auditor, is invested by the constitution and laws with the discretion to examine into and ascertain the exact amount of money expended by the county in the criminal prosecution, and then draw his warrant for such sum only as he ascertains the county expended. If by the express words of the act, or if by any reasonable construction thereof, it appeared that the legislature intended to appropriate $7,495.73, or so much thereof as might be necessary to reimburse the county, then doubtless the auditor’s position would be tenable; but no such words of limitation of the amount appropriated are in the act, nor can they be read into it by any fair or reasonable construction. What Was the intention of the legislature in • the premises ? Doubtless to fully reimburse Scott’s Bluff county for the expense incurred by it in prosecuting Arnold for murder. The appropriation of this money—a gift in fact—was within the power of the legislature, and no inquiry or objection is admissible on the part of the auditor as to whether the appropriation was just, whether it was bestowed upon an undeserving recipient, or what motives influenced the legislature to make it; nor can the auditor be heard to say that the gift was too large; that the appropriation carried more money than was required to reimburse the county for what it had expended. The only duty left for the auditor in the premises is a mei'ely ministerial one. He has no authority to supervise the action of the legislature by an inquiry into the actual expenditures of Scott’s Bluff county in the prosecution of Arnold.

Section 9, article 9, of the constitution provides: “ The legislature shall provide by law that all claims upon the treasury shall be examined and adjusted by the auditor, and approved by the secretary of state, before any warrant for the amount allowed shall be drawn; Provided, That a party aggrieved by the decision of the auditor and secretary of state may appeal to the district court.” Now, what is meant in this constitutional provision by “claims upon the treasury” which the auditor must examine and adjust? We take it that it means claims which the state is or may be under legal obligation to pay, such as the salaries of its officers and employes, the costs of erecting buildings, and the expense attendant upon the maintenance of its prisons, asylums, schools, and other institutions. We do not think the appropriation of the specific sum by the legislature to a particularly named person as a donation, gift, or a reward, and for which the state was under no legal obligation, comes within the claims which the auditor must examine and adjust. True, “he is placed in his position as agent of the state to protect the treasury against demands not lawfully due and payable by the state; and when a claim is presented, he must ascertain whether or not there is authority of law for its payment, and if he finds such authority, that should satisfy him. If the legislature has by express enactment directed that a certain sum shall be paid to a person, and appropriated the money for such payment, the auditor’s duty in the premises becomes then merely ministerial. The power conferred upon him is not to supervise the action of the state when by its legislature it has admitted and acknowledged the claim and ordered it to be paid. Where •the claim is not admitted by the state, he then stands in behalf of the state, and as its agent it is his duty to determine whether or not it is admissible, and justly and legally •due; but when his principal, the state, whose officer he is, acknowledges the claim and directs it to be paid, then, inasmuch as the state’s regulation for the payment of money requires him to draw warrants upon the treasury before such money can be paid, his duty is, without questioning, to conform to such direction. Finding the law for its payment to exist, he must regard that as plenary evidence that it is justly due. He cannot properly question the authority of an act of legislation directing the payment of money by the state, or disregard its authority, however fully he may be convinced that the money is bestowed upon an undeserving recipient.” (Angle v. Runyon, 38 N. J. Law, 403.) Whenever the money necessary to pay a particular claim against a state has been appropriated by the legislature, and the amount of the claim has been definitely ascertained in a manner prescribed by law, .a refusal by the auditor of said state to draw his warrant upon the treasurer of the state for the payment of the claim will authorize the interposition of the courts by appropriate mandatory proceedings. (High, Extraordinary Legal Remedies [2d ed.], sec. 101.) True, the constitution makes it the duty of the auditor to adjust claims. “Adjust” means “to settle or bring to a satisfactory state, so-that parties- are agreed in the result; as, to adjust accounts.” (Webster’s Dictionary;) ............

We are aware that it was said in State v. Babcock, 22 Neb., 38, that the constitutional provision requiring claims upon the state treasurer to be examined and adjusted by the auditor applied to all claims whether by virtue of a specific appropriation or not, and that the making of a specific appropriation by the legislature for the purpose of paying a demand against the state was in no sense the auditing of such claim ; but that case should be distinguished from the one here. The appropriation considered in State v. Babcock, supra, was for paying the expenses (incurred by the state) in the prosecution of certain persons for crimes committed in an unorganized territory of the state. By the second section of that appropriation act it was provided: “And the auditor is hereby authorized to draw his warrants for the several amounts due to the parties named in this act;” and the court said: “This language would seem to indicate that it was the purpose of the legislature that this ‘ outstanding indebtedness ’ should be paid to the parties holding the claims, upon the ascertainment by the auditor of the amounts due to each of the parties named, but of course not in excess of the sum appropriated.” It is also stated in State v. Babcock, supra: “ The legislature has no authority under the constitution to audit or adjust a claim against the state, and if money is appropriated to pay an illegal claim, or one which the state does not owe, and the auditor so finds upon examination and adjustment, it is his duty to refuse to issue a warrant, notwithstanding such appropriation;” but this point was not necessary to a decision of the case there decided, and the rule there announced should be restricted to such claims and demands as the state is under a legal obligation to pay, and not extended to appropriations of specific sums of money made by the legislature as a donation, gift, reward, or charity.

Suppose the governor should offer a reward of $1,000 for the arrest and return to the state of a fugitive from justice, and A should arrest and return the fugitive; and the legislature should, after inquiring and ascertaining that A had earned the reward, appropriate $1,000 to him for having arrested and returned the fugitive. Could the auditor inquire into the value of the time and outlay of A in arresting and returning the fugitive, and refuse to draw a warrant for only the value of A’s time and expenses? In such a case, would there be any adjustment to be made by the auditor of A’s claim? Would the auditor have any duty to perform in the premises but a mere ministerial one? Would he have any discretion in the premises? The legislature of 1893 (House Roll No. 85) appropriated the sum of $2,000 for the payment of damages sustained by one Maurer while engaged in the public service as a private in the Nebraska National Guards. It was recited in the act that Maurer was exposed to the cold and freezing weather, and by reason thereof he contracted rheumatism, which became chronic, and from which he suffered great physical pain and became incapacitated for work, and was prevented from following his vocation and earning a living, and that he was required to pay out large sums of money for medical care and attendance for a period of more than two years. When Maurer presents his claim to the auditor, can the latter institute proceedings to ascertain the value of the time lost by Maurer by reason of his rheumatism and sickness; the expenses paid by him for physicians, nurses, etc. ? Can he call experts to testify as to whether Maurer’s injury is permanent, and if so, his expectancy of life and the present worth of what he probably would have earned had he not been injured? This legislative gift, or donation, to Maurer contains an allowance for physical suffering. Can the auditor say that too much was allowed for such suffering, and reduce the appropriation accordingly ? We think not; and yet he may do all these things in Maurer’s case, if his contention here is correct, viz., that his duty as auditor requires him to ascertain the amount of actual expenses incurred by Scott’s Bluff county in tbe prosecution of Arnold, and then draw his warrant for that sum only. Such cannot be the law. If it is, then instead of a government of three co-ordinate departments, the legislative is subordinate to the executive department. The auditor is an able and conscientious officer and deserving of the highest commendation for the jealous care with which he guards the public treasury, and he acts wisely in shielding himself from liability by the decisions of the courts in cases where he is in doubt; but in the case at bar he may not only legally draw the warrant demanded by the relator, but it is his duty to do so. He has no discretion in the.premises. The demurrer to the return is sustained, and the writ will issue as prayed.

Writ allowed.