Boner v. . Adams

Readk, J. The Treasurer, Jenkins, can pay no money out of the treasury, except on the warrant of the Auditor. Acts 1868-’69, ch. 270, sec. 71. The plaintiff admits that he had no warrant from the Auditor; and so, according to the plaintiff’s'owu showing, he can have no process against the Treasurer. And, therefore, the case must be dismissed as to him with costs. The Auditor is an officer, named in the Constitution, “with duties to be prescribed by law.” Art. Ill, secs. 1 and 13. The Act of 1868-69, ch. 27, prescribes his duties. Sec. 63, paragraph 1, “ To superintend the fiscal concerns of' the State.” 7. “To examine and liquidate the claims of all persons against the State in cases where there is sufficient provision, of law for the payment thereof, and where there is no sufficient provision to examine the claim and report the fact, with his opinion thereon, to the General Assembly.” ' 9. “To draw warrants on the Treasurer for the payment of all moneys directed by law to be paid out of the treasury, but no warrant shall be drawn unless authorized by law, and every warrant shall refer to the law under which it is drawn.” Sec. 65. “ He has power to require any person presenting an account for settlement lo be sworn before him, and to answer orally any fact relating to its correctness.” It is apparent that the Auditor is not a mere ministerial officer. 1. He is to pass upon the “ correctness ” of the claim. This is not a ministerial duty. *643 2. He is to judge whether there is “sufficient provision of law for its payment.” This is not ministerial. 3. If there is not sufficient provision of law, then he is to “ examine the claim, and report the fact with his opimion, to the General Assembly.” This is not ministerial. The plaintiff has a claim against the State for services as Cleric of the General Assembly. He says, a part of his claim has been paid and a part is still due. The Auditor’s first duty was to pass upon “ its correctness.” Helias done that, and says it is not correct. It seems that the plaintiff had already presented his claim for the whole time of his services, three hundred and four days, and the same had been allowed and paid. A second claim, not for other services or other times, but for the same services and times, was well calculated to excite the caution of the Auditor, who is charged with the “ superintendence of the fiscal concerns of the State ” generally, and of every particular claim against the State. When this second claim was presented, we are to suppose that the Auditor enquired, “Why did you present a claim for the whole time at $7 per day, as the sum to which you supposed yourself entitled 2 and why do you present a different account now, for the same time and services at $10 per day 2 Is there no ground for supposing that the Legislature was thrown off its guard in passing the act, under which you claim, (which is a quasi private act) or that it does not mean what you suppose it does 2 “ Unless you make all this plain to me, I must hold you as estopped by the settlement, which we have heretofore made.” The most this Court could do, would be to' order the Auditor to examine the claim and to allow it, if he thought it “correct and in that event to issue his warrant for it, if, in his opinion, there is “sufficient provision of law for iti payment.” And if he were to allow the claim as “ correct,” and determine that *644 there is not “ sufficient provision of law for its payment,” and were to refuse to report the fact,fwith his opinion, to the Legislature, we might compel him to do so. But he has audited the claim, and finds it “incorrect.” We have no power to to compel him to change his opinion. Nor can we pass upon the merits of the claim. If the claim were before us, upon ascertained facts, we might, under art. IY. sec. 11. of the Constitution, declare the law .and recommend it to the Legislature. It seems to us that the plaintiff’s remedy, if he has one, is an application to the Legislature, which through’ its appropriate committee, can pass upon the claim, and if found to be just, ean, by appropriate legislation, make the duty of the Auditor plain. It is not to be supposed that the Auditor has any other than an honest purpose to do his duty, or that the Legislature will fail to see that the just claims of its Clerk shall be paid. There is error. Pee Cueiam. Order reversed and mandamus refused.