Goodykoontz v. Acker

Chiee Justice Hayt delivered the opinion of the court. Was the defendant in error entitled to the peremptory writ of mandamus ? It is admitted that no appropriation was made by the ninth general assembly of the state of Colorado for the payment of any salary to the inspector of metalliferous mines for the year 1893, and also that there is no state fund out of which such salary can be paid. [363] Section 33 of art. 5 of the constitution provides that, “ no money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof.” Among the statutes passed in furtherance of this constitutional provision, are the following:— “ In all eases of accounts, audited and allowed against the state, and in all cases of grants, salaries, pay and expenses, allowed by law, the auditor shall draw a warrant on the treasurer for the amount due, in the form required by law; Provided, An appropriation has been previously made for such purpose.” Sec. 1826, Mills’ Ann. Stat. “ No warrant shall be drawn by the auditor, or paid by the treasurer, unless the money has been previously appropriated by law; nor shall the whole amount drawn for or paid under one head ever exceed the amount appropriated by law for that purpose.” Sec. 1827, Mills’ Ann. Stat. The primary object of the foregoing provision of the constitution and of the statutes passed in aid thereof is to prevent the expenditure of the money of the people without their consent, expressed in the organic law or by constitutional acts of their legislature. An appropriation is made a prerequisite to payment in every instance. The Institute v. Henderson, 18 Colo. 98. Is there an appropriation out of which the salary of defendant in error should be paid? The argument in support of the affirmative is in substance as follows : No set form of words is necessary to constitute an appropriation; it is sufficient if the legislative intent to appropriate money for a specific purpose clearly appears from the statute, and when the salary of a public officer is fixed by law, together with the time and method of payment, this constitutes an appropriation within the terms of our constitution and statutes. Although the decisions are not uniform it must be admitted that the trend of the more recent cases is in support of this argument. Carr v. State, 22 Am. St. Reports, 624, and notes; State v. The Auditor, (Wy.) 33 Pac. Rep. 125; In re Continuing Appropriations, 18 Colo. 192. Whether the pecu [364] liar provisions of onr constitution with reference to general appropriation bills should be held as rendering inapplicable the reasoning upon which the foregoing decisions are based when applied to the expenses of the legislative, executive or judicial departments of this state, we are not called upon to determine, in view of the conclusion at which we have arrived in regard to the statute relied upon to establish an appropriation in this case. In answer to a legislative question this court, in the case last above cited, expressed the opinion that the statutes then under consideration were sufficient to warrant the disbursement of certain special funds when collected, but the opinion is not to be taken as upholding the right of the auditor of state to draw warrants in anticipation of the collection of taxes levied for any year in advance of the years usually covered by the biennial appropriations. The statute providing for the inspector’s salary is peculiar. It differs from the provisions usually employed with reference to the compensation of state officers. It reads as follows : “ The inspector of metalliferous mines shall receive a salary of three thousand five hundred dollars per year, and ten cents per mile for mileage actually and necessarily traveled in the discharge of his official duties, said mileage not to exceed one thousand dollars in any one year, to be paid monthly by the state treasurer out of any moneys appropriated for that purpose, on the certificate of said state inspector of metalliferous mines, showing services rendered and the amount thereof; * * The essential difference between this and the provisions of nearly every other statute fixing the salary of public officers arises from the addition in this statute of the words “ out of any moneys appropriated for that purpose.” There is but one apparent purpose of this innovation, which is that for reasons satisfactory to the legislature that body was of the opinion that the payment of the salary and expenses of this officer should be dependent upon further legislation. Were it necessary to advance reasons that might have had weight in the legislative mind, it would not be difficult to [365] do so. This field of legislation being new the provisions of this bill were largely experimental, and it was but natural that the legislature should for this reason delay the appropriation necessary to carry the same into effect. This act not only provides for the creation of the office of mining inspector, designating the amount of his salary and the rate of mileage to be allowed, but also provides for the appointment of three assistants, each to be allowed a fixed salary in addition to mileage, and it was but natural that provision for all these outlays should be deferred, to be considered in connection with the general appropriation bill, as was afterwards done at that session. But whether these or other reasons operated to produce the result, we must construe the act as written. Although no set form of words is necessary to constitute an appropriation, it being sufficient if the legislative intent to appropriate clearly appears, on the other hand the courts invariably refuse to infer an intention to appropriate from doubtful or ambiguous language. In re Continuing Appropriations, supra. In the act before us there is not only an absence of language that may be considered either doubtful or ambiguous in favor of the appropriation claimed, but the legislative intent that the act should not of itself constitute an appropriation is clearly manifest. The judgment of the district court is accordingly reversed and cause remanded. Reversed.