State ex rel. Helander v. Clausen

Parker, J. This is an original proceeding in this court wherein the relator, Helander, seeks a writ of mandate to compel the respondent, Clausen, as state auditor, to issue to him a warrant upon the state general fund for his salary as deputy inspector and supervisor of public offices, for the month of April, 1917. The conceded facts may be summarized as follows. Relator is now, and has been for several years past, a duly appointed, qualified, and acting deputy inspector and supervisor of public offices. His salary, as such deputy, has been fixed by respondent Clausen, as state auditor, as it is conceded he had power to do, at $£,500 per annum. Relator’s salary for the month of April, 1917, has not been paid, nor has respondent, as state auditor, issued to him any warrant therefor upon the state treasury, but has refused to do so solely because there has been no appropriation made by law for the payment of salaries of deputy inspectors and supervisors of public offices during the biennial fiscal term beginning April 1, 1917. The legislature of 1917 included in its general appropriation bill an appropriation for the maintenance of the bureau of inspection, which included the salaries of the deputy inspectors. This item of the appropriation bill was, however, vetoed by the governor; and the act having passed the legislature on the last day of the session, there was no opportunity for the legislature to consider the governor’s veto, hence the effect of the veto was to make the situation the same as if there had been no attempted appropriation on the part of the legislature, so far as our present inquiry is concerned. Laws 1917, page 808. Relator, during the month of April, 1917, con — 255 — tinued the performance of his duties as deputy under respondent, Clausen, as chief inspector and supervisor of public offices. We are not here concerned with the question of whether or not relator is at this time entitled, as a matter of law, to the payment of his salary in money from the state treasury. It may be conceded that he cannot, at this time, be so paid, because of the want of an appropriation authorizing such'payment. This would seem to be so because of § 4, art. 8 of the constitution, prohibiting the payment of money from the state treasury except in pursuance of an appropriation. The sole question here for consideration is: Has the relator a right to have issued to him a warrant upon the state general fund for the amount of salary due him for the month of April, 1917? This question is to be answered from an examination of the following provisions of our statutes found in Remington’s Code: Section 5025 : “It shall be unlawful for any of the state officers or trustees, managers, directors, superintendents or boards of commissioners of any of the public institutions of the state of Washington, or for the officers of any of the departments of the state of Washington, to create a deficiency, incur liability, or to expend a greater sum of money than is appropriated by the legislature for the use of said public institution or department.” Section 8346: “There is hereby established in the department of the state auditor a bureau to be known as the bureau of inspection and supervision of public offices; the principal officer of said bureau shall be known as the chief inspector and supervisor of public offices; the state auditor shall be, ex oficio, chief inspector and supervisor of public offices, and as such chief inspector and supervisor, shall appoint not exceeding three deputies, who shall each receive a salary not exceeding two thousand five hundred dollars per annum, and a clerk who shall receive a salary not exceeding fifteen hundred dollars per annum . . .” — 256 — Section 8355: “The expense of maintaining and operating the bureau herein provided for shall be paid out of the state general fund . in the same manner as other state employees.” Section 8975: “The salaries of all state officers shall hereafter be paid monthly on the last day of each month, as provided by law.” Section 9008: “The state auditor shall in no case issue any state warrant unless there is a law authorizing the issue of the same, and every warrant shall state the act under which it is drawn.” Section 9021: “In all cases of grants, salaries, pay, and expenses ascertained and allowed by law, found due to individuals from the state when audited, the auditor shall draw a warrant upon the treasury for the amount, but in cases of unliquidated accounts and claims the adjustment and payment of which are not provided by law, no warrant shall be drawn by the auditor or paid by the treasurer, unless the previous appropriation shall have been made by law for that purpose. . . .” Would the issuance of a warrant by the auditor, as prayed for, be creating a deficiency by him within the meaning of § 5025 above quoted, or the issuing of a warrant unauthorized by law, within the meaning of § 9008, above quoted? We think not, if relator’s monthly salary has been “ascertained and allowed by law,” within the meaning of § 9021, above quoted. In other words, if the law has the effect of creating such deficiency, the auditor would not be violating the prohibitions of §§ 5025 or 9008 by issuing a warrant which he is by § 9021 required to issue. Now we have seen that, by the terms of § 8346, above quoted, there are created in the bureau of inspection three positions of deputy inspector. It is true that the auditor is not compelled to fill all three of these positions, but we think it is, nevertheless, clear that there are, in fact, three such positions created by that section, and that the incurring of obligation on the part of the state to pay — 257 — their salaries, in amounts not exceeding $2,500 per annum, is expressly authorized. Had the legislature authorized the auditor to appoint deputies without prescribing any limitations as to their number, it could have been well árgüed that he was not empowered to incur the expense of sálaries for deputies appointed by him under such a power without' an appropriation therefor, as it can be well argued that he has rib authority to incur expense by appointing assistants, examiners and clerks, other than those specifically provided for, as to numbers, in the bureau of inspection law, without an appropriation therefor. But when he is given authority, as he is in that law, to appoint a specified number of deputies arid to fix their salaries at not exceeding $2,500 per annum, we are of the opinion that both the number of deputiés and the amount of their salaries, when determined upon by the auditor, within the limitations prescribed, are thereby “asfcéftained and allowed by law” the same as if the legislatufé itself had finally determined the number of deputies and'the amounts of their salaries. ' Óur recent decision in State ex rel. Peel v. Clausen, 94 Wash. 166, 162 Pac. 1, is in harmony with and lends' sup port to this conclusion. So far as the question here invblved' is concerned, that case differs from this only iri that "the amount for which the warrant was there directed to be issued was ascertained and allowed by a judgment iñ á cbnderim'ation proceeding, prosecuted in pursuance of statutory authority, to acquire a fight of way for a state highway, after which it was discovered that there was an insufficient appfb1 priatioii to meet' the award. If that was an expense “a'scértained and allowed by law,” this certainly is. The early decision of this court in State ex rel. Brainerd v. Grimes, 7 Wash. 191, 34 Pac. 833, is of interest iri this connection, thoiigh it can be differentiated from the present case, iri that the law there in question was viewed as" ari appropriation act, as well as an act providing fof a state board — 258 — of land - commissioners; that is, an appropriation act in so far as the ensuing biennial fiscal term was concerned, the salary involved being one falling due during the biennial fiscal term which immediately followed the passage of the act: Hence that cannot be said to be the issuing of a warrant in the absence of an appropriation, as it would have been had the warrant been issued after the expiration of the ensuing biennial fiscal term. We find but little aid from the decisions of other' states, though the following may be cited as lending some support to our conclusion: Evans v. McCarthy, 42 Kan. 426, 22 Pac. 631; Shattuck v. Kincaid, 31 Ore. 379, 49 Pac. 758; Lightfoot v. Lane, 104 Tex. 447, 140 S. W. 89. The onty decision coming to our notice which may seem out of harmony- with our views here expressed is that of Leddy v. Cornell, 52 Colo. 189, 120 Pac. 153, Ann. Cas. 1913C 1304, 38 L. R. A. (N. S.) 918. In that state, however, the doctrine of continuing appropriations prevails as not being repugnant to its constitutional provisions, as it is to ours. The Colorado constitution not only prohibits the payment of money from the state treasury except upon appropriation, as ours does, but its statutes prohibit the drawing of any warrant upon the state treasury except upon appropriation. That case involved a claim for salary of a secretary of a commission, the statute providing that “the secretary shall be paid a salary not to exceed $1,800.00 a year.” The real question was whether or not these words constituted a continuing appropriation. It was held that they did not, because no amount was definitely fixed as an appropriation, hence there was no authority under the constitution and statutes of Colorado to issue to the secretary a warrant for his salary. We think that decision is not in point here. ' We conclude that relator is entitled to a warrant as prayed for, to be drawn by the respondent, as state auditor, upon the “state general fund,” that being' the fund his salary is payble from by the provision of § 8355, above quoted. As to when and how such warrant shall be paid from moneys in — 259 — the state treasury is a question wholly foreign to our present inquiry. A writ of mandate will issue accordingly. Fullerton, Morris, Mount, and Webster, JJ., concur. Chadwick, J., concurs in the result.