State ex rel. McLean v. Liedtke

Oobb, J. The relator, who is janitor of the university building, acting under appointment of the board of regents of the university at a stated salary payable monthly, makes [469] and files his relation against the respondent, who is auditor of public accounts of tbe state of Nebraska, and prays tbe judgment of this court that tbe said respondent be required without delay to draw bis warrant in favor of tbe relator upon tbe state treasury for tbe sum of one hundred dollax-s, tbe amount of bis .salary for tbe moxxths of April and May, 1879; the said relator having on tbe ninth day of Juxxe, 1879, presexxted to tbe said respondent tbe certificate, of said board of regentss, bowing him, tbe said relator, to be entitled to tbe said warx-aixt for salary, and which was by tbe said respoxxdent refused. Tbe respondent appears and makes answer’to tbe said relation and states as reasons why a peremptory writ of mandamus should not issue against him, that no specific appropriation has been made by the legislature to' pay tbe said claim out of tbe regents’ general fund for tbe months of April and May, 1879, upon which fund tbe board of regents of tbe university issued their certificate for bis said salaiy. Respondent cites section 22 of ax’ticle III of tbe constitution of tbe state: “that no money shall be drawn from tbe treasury except in pursuaxxce of a specific appropriation made by law.” Also that the legislature at its last session failed to appropriate any of the funds which constitute tbe regents’ genex-al fund, and for that reason respondent refused to draw any warrant on that fund. Tbe respondent further states in bis said axxswer that at the last session of tbe legislature an act was passed making appropriations for tbe current expenses of tbe state government, etc., approved February 27, 1879, includixxg tbe expenses of tbe univex’sity. (Laws 1879, p. 434.) And in ■ said act the sum of $25,000 per annum for two years was appropriated out of tbe general fund for tbe support of tbe university, and which said sum is unexpended. Wherefore and for tbe reasons [470] above stated tbe respondent refused to draw bis warrant on tbe regents’ general fund in favor of tbe relator, etc. In any event a peremptory writ will bave to issue, and the only question of any difficulty presented for tbe consideration of tbe court is — out of what fund shall tbe auditor be directed to draw sucb amount ? And before a proper answer to tbis question is reached we must consider whether, in tbe matter of receiving and paying out tbe revenues of tbe university, tbe state treasurer acts in bis official capacity as state treasurer or in tbe capacity of treasurer to tbe board of regents of tbe university. Upon careful examination of tbe several acts of tbe legislature and constitutional provisions applicable to tbis question we are forced to tbe conclusion that it was tbe intention of tbe legislature, which passed tbe act of February 23, 1875 [Laws, 1876, p. 154], that all moneys belonging to tbe university fund then in tbe bands of tbe treasurer of tbe board of regents should not only be paid over to tbe state treasurer, but should thereupon be covered into tbe state treasury, and that thereafter all like funds, upon reaching the band's of tbe state treasurer, would by force of law be covered into tbe state treasury. It necessarily follows that no sucb funds or any other funds once in tbe state treasury can be drawn out except in pursuance of a specific appropriation. And as an appropriation was made by tbe last legislature of funds to meet tbe expenses of tbe state university for tbe years 1879 and 1880 out of tbe general fund, tbe auditor is restricted to that fund, and can draw upon none other for said years. When there is no ambiguity in tbe language of an act of tbe legislature, nor conflict between different acts on tbe same subject, or between different provi [471] sions or sections of the same act, this court will not look into the wisdom or. policy of such legislation for the purpose of giving it some other meaning than that apparent on its face. A peremptory mandamus will issue to the respondent requiring him to issue his warrant to the relator for the amount claimed on the general fund. The costs of this proceeding to be paid by the relator. Writ allowed.