State ex rel. Martin v. Doyle

Ryan, C. J. It is unnecessary to pass upon the grave questions suggested on the argument, whether the legislature had power to pass chapters 243 of 1878, and 152 of 1874, submitting the relator’s claim to the final arbitrament of commissioners, approved by the secretary of state, and making the amount of an appropriation of public money dependent on the determination of persons not constitutional officers; and how far such a submission is in conflict with sec. 27, art. IV of the constitution : or with sec. 2, art. VII (Att'y Gen. v. McDonald, 3 Wis., 805; Gough v. Dorsey, 27 id., 119); or with sec. 2, art. VI (State v. Hastings, 10 id., 525). For, conceding the power of the legislature, there appears to us to be no doubt that the true construction of sec. 2 of the act of 1873 makes the report of the commissioners dependent for validity on the approval of the secretary of state, and does not authorize payment of the amount reported without such approval. The terms of the section are express and positive that, upon the filing of the report with the secretary, “ on his [99] approval thereof, he shall draw his warrant,” etc. It is not claimed that the payment is authorized by any general statute, and, without the approval of the secretary, there is no authority for it in this act. We can see no ground for holding that the act of 1874 dispenses with the secretary’s approval. .That act relates solely to the duty of the commissioners. If we could hold it as doing away with the secretary’s approval, we do not see how that could aid the relator. Eor the power to approve and to pay in the act of 1873, is so connected and dependent in terms, that a constructive repeal of part would appear to carry with it the whole. But there is no conflict between the two provisions, which are in entire harmony. It was argued for the relator, that the approval required by the act is merely formal, giving the secretary no discretion; that the legislature had provided for the liquidation of the amount otherwise ; and that, when so liquidated, it was oh the footing of a sum certain appropriated by law, which it was the duty of the secretary, without discretion, to audit. We cannot bring ourselves to believe that the legislature so intended. In practice, the secretary audits all appropriations, which _ are paid only on his warrant. But the legislature does not, therefore, mate positive and specific appropriations subject in terms to his approval. Such language is not usual; and when used, it must be with a purpose, to which it is our duty to give effect. It must be intended to mean something more than mere form. And it appears to us that the intention is not far to seek. Here was, to say the least, an unusual and dangerous mode of appropriation. It seems wise to have made it subject to the discretion of the auditing officer of the state. And we cannot but hold that, in providing for his approval as a condition of payment, the legislature intended, for the protection of the state, to confer upon that officer power to control the payment, by his approval or disapproval of the amount reported. [100] The secretary approved the report as to part of the amount, and refused to approve it as to other part. Whether or not he mistook his power in doing this, certain it is that he could not bind the state beyond his actual approval. His approval of part cannot operate against the state as an approval of the whole, or bar the state from insisting on his refusal to approve the rest. The part approved has been paid. The part of which we are asked to enforce payment by this wfit, has not been approved. We surely cannot compel the secretary to pay against his disapproval what is in terms payable only' on his approval. For these reasons, the motion to quash the alternative writ must prevail. By the Court. — Motion granted, and writ quashed.