Nelson v. Clayton

EmeRSON, J., delivered the opinion of the court: This appeal is from a judgment granting a peremptory writ of mandamus, commanding the appellant, who is auditor of public accounts for the Territory, to audit certain accounts for supplies furnished by the applicant for the subsistence and maintenance, at the Territorial penitentiary, of convicts under sentence from the various district courts of the Territory for the violation of Territorial laws. The applicant at the time was United States marshal, and as such was, by the laws of Congress, warden and keeper of the penitentiary. The account is for supplies furnished during the year 1877, and previous to July 25th of that year. They were necessary and were used by him for the purpose mentioned; that no part of said account has been paid. The affidavit also states that on the 2oth of July, 1877, the applicant presented said account to the appellant and demanded that he should audit the same and draw his order on the treasurer of the Territory, in favor of the applicant, for the amount found due therein; that the auditor, the appellant, did not deny the correctness of the account, but refused said demand and refused to draw said order, giving as a reason therefor that the Territory of Utah had a warden, duly elected by the legislative assembly to have control of said penitentiary, and he would not recognize the applicant as keeper of the same. The prayer was for an alternative writ, which was granted, and on the return day thereof the appellant demurred, on the ground that the affidavit and writ did not state facts sufficient to constitute a cause of action, for that: “First — There is no law authorizing said William Clayton, [302] as auditor of public accounts, to audit, allow or draw auditor’s warrants for any such claim or demand against the Territory of Utah as is set forth in the affidavit.” “Second — There does not appear by the affidavit nor by the law that any appropriation has been made by the Governor and legislative assembly of the Territory of Utah, to pay any such claim against the Territory of Utah as is set forth in the affidavit.” The demurrer was overruled, and appellant elected to stand upon his demurrer. A peremptory writ was ordered, and the defendant brings this appeal. The record shows that on the hearing of the demurrer it was conceded that the only appropriation made by the legislative assembly for penitentiary purposes is contained in item 53 of the appropriation bill approved February 18,1876, and which is as follows: “ A contingent fund, to be drawn on the order of the directors of the Utah penitentiary, to enable the warden to provide for such Territorial convicts as may be placed in his custody during the ensuing two years, $3,000.” As to the first ground of the demurrer, the law thus defines the duty of the auditor: “The auditor of public accounts shall examine and audit all public accounts connected with the pecuniary affairs of the Territory.” O. L. § 49. It is also provided that the treasurer shall pay all moneys that may come into his hands, by virtue of his office, upon drafts or orders countersigned by the auditor of public accounts. C. L. § 47. By an act of Congress, approved January 10, 1871, and still in force, it is provided that all penitentiaries erected by the United States in the Territories, shall be under the control of the United States marshals therein, and that Territorial convicts shall be received therein “ at the cost of such Territories.” U. S. Bev. Stat. § 1892. The penitentiary mentioned by the applicant in his affidavit is the only one in the Territory, and was erected by and is the property of the United States, and there can be no question [303] but what the applicant is the proper custodian and warden thereof. TIis account for the care and subsistence of Territorial prisoners sentenced to that penitentiary is a public account, one that the Territory ought to pay, and is connected with its financial affairs. It is the account of a public officer of necessary disbursements by him in the line of his duty in the keeping and subsistence of those whom the laws of the Territory consign to his charge. It is such a claim as should be paid by the Territory out of the Territorial treasury, and should have been audited by the appellant upon presentation, and if found correct he should have drawn 3iis order on the treasurer for the amount, unless the point raised by his second ground of 'demurrer is good. Section 1893, U. S. Revised Statutes, provides that the Attorney General of the United States shall prescribe all needful rules and regulations for the government of the penitentiary. He is the only “director” of the penitentiary whom we can recognize. This law supercedes and renders nugatory any law of the Territory which gives the supervisory power to any man or set of men. This does not affect the appropriation for this specific purpose. The appropriation was for the very purpose for which this expense was incurred, that is, to provide for such Territorial convicts as should be placed in the custody of the warden oí the penitentiary. The appropriation is found in a public act and it was not necessary to especially set it lip in the affidavit. The judgment of the District Court is affirmed. Schaeeeek, C. J., and BokemaN, J., concurred.