State ex rel. Garneau v. Moore

Maxwell, Ch. J. This is an application for a mandamus to compel the auditor to draw his Warrant on the state treasury of Ne [508] braska for the sum of $5,000 from the funds appropriated, in said act and now in the state treasury, and* deliver the same to the relator. The defendant has filed an answer in which he admits many of the allegations of the petition, but denies that the relator has devoted his entire time and attention to the duties of his office; and denies that the expenditures mentioned in the petition were all necessary, just, and proper; and denies that the estimate for said $5,000 was accompanied by proper vouchers. The petition is accompanied by a copy of the act of the legislature approved April 8, 1893, and by a large number of vouchers and estimates submitted by the relator to the auditor, covering moneys heretofore drawn. Among the estimates and vouchers filed we find charges for hotel bills and other like charges, and most of the estimates are not accompanied by vouchers of the parties rendering the services or furnishing the materials. Section 9, article 9, of the constitution provides that the legislature shall provide by law that all claims upon the treasury shall be examined and adjusted by the auditor and approved by the' secretary of state before any warrant for the amount allowed shall be drawn; Provided, That the party aggrieved by the decision of the auditor and secre-' tary of state may appeal to the district court. The construction of this provision of the constitution was before this court in State v. Babcock, 22 Neb., 38. In that case the legislature had passed an act to provide for paying the expenses incurred in the prosecution of Olive for murder. The court held that the constitution requires that all claims upon the state treasury must be examined and adjusted by the auditor, and his action approved by the secretary of state, before any warrant can be drawn therefor, and this provision applies to all claims, whether claimed by virtue of a specific appropriation or not. In State, ex rel. Dales, v. Moore, 36 Neb., 579, this court held that the original’vouchers must be presented to the [509] auditor for him to act upon. This seems important in order that the auditor may determine that the claim is one 'for which the legislature has provided an appropriation. If it ■is not, it is his duly to refuse to draw a warrant. The auditor draws every warrant at his peril, and if he draws a warrant without authority of law, he and his sureties are liable ■ for the same. This would seem to be important in this case. A number of claims are presented to the auditor that are clearly for expenses. The relator is paid a salary of $2,000 per year; he is also entitled to his traveling ex- : penses. In estimating traveling expenses, however, they ' would be simply compensation for going from his home to Chicago, and from Chicago to his home. If in the meantime he desires to return home, and from thence to Chicago, he must do so at his own expense. The return is for his ’ own convenience, and must be at his own expense. The 'original vouchers must in all cases be sent to the auditor. The commissioner should approve the same before sending them. The auditor will then have the evidence of the debt before him and will know whether it is such a claim as the legislature has provided an appropriation for. If it is, it is his duty to draw a warrant; if it is not, then he should refuse. He is not to draw a warrant upon mere estimates, and as the application in this case is to draw upon a mere estimate, the writ of mandamus must be refused. It may be said that this will occasion inconvenience by 1 causing delay in the payment of claims; but not necessarily ■ so. Lincoln is but sixteen hours from Chicago, and claims " sent one day can be returned not later than the third day, ' so that there will be no great delay. In any event, the constitutional provision applies to all claims, including the ' claims in question, and the construction heretofore placed upon the provision must be adhered to. The writ is Denied. Nobval, J., concurs.