Commercial & Farmers Bank v. Worth

Clark, J.: It is not controverted that the legislature may create a special commission, as, for instance, to examine the Treasury Accounts, and require that it shall consist of members to be designated from their own body and fix its compensation. Gode, Sections 3360 and 3361. Such special commissioners are not disqualified to hold other offices as members of the General Assembly, for instance, being expressly excepted by Article XIV, Section 7, of the Constitution. Nor can it be denied that the legislature has power to authorize a committee of its body to sit during vacation and fix its compensation. The question before us does not turn upon the power of the legislature, which is undeniable, but upon the construction of their action. The uniform action of Congress and the legislature so far as our researches extend has been to expressly authorize such committee to “sit in vacation.” Inasmuch as the existence of all committees in the absence of legislation necessarily determines upon the adjournment of the body to which they belong, certainly there must be an explicit enactment that the sessions of the committee can be held after such adjournment, or at least a clear unmistakeable implication to that effect from the words used in the act or resolution creating the committee. ¥e do [153] not find such to be the case here. The resolution (Laws 1895, p. 502) simply provides that the Committee “shall find the facts from the evidence, and report said facts and also set out the evidence in full in said report, and make their report to the General Assembly, if it is possible to do so, before its adjournment,” — so far there is nothing to distinguish this committee from any other or to prolong its existence beyond the adjournment of the body to which it belonged. Then follow the only words which can be construed to give such power “And if not, then said report shall be made to the Supreme Court.” This confers no power on the committee to do any act after the General Assembly should adjourn except to make their report if it should not be ready. There is no explicit provision or clear implication that the committee should take any other action. Had the legislature so desired, it would according to precedent have provided that the committee could sit in vacation, as they plainly provided that they could report in vacation, if necessary, which necessity seemed to be considered doubtful. When a committee is empowered to sit iri vacation, the resolution must provide the compensation and for the expenses of the same, otherwise there is no authority of law for their payment. Certainly the members cannot draw yyer diem as members of the legislature, for by the Constitution, Article II, Sec. 28, the per diem is allowed only during the session of the General Assembly and is limited to sixty days, which the members of this committee had already drawn, as well as their mileage allowed them in such capacity. We must look to the resolution itself for any authority for payment of either compensation or expenses. That provides only for “the necessary expenses of the said committee while actually engaged in said investigation.” Since, as stated above, the meaning of the [154] resolution was that the investigation should be made during the session, merely leaving the report to be filed (if it should be necessary) after adjournment, the necessary expenses would seem to be those of making the investigation, i. e. summoning and expense of witnesses, stationery, &c. But it is not required here to say what would be embraced in necessary expenses, for this warrant on its face is for per diem and mileage.” The per diem is compensation which is not provided for by the resolution, and the mileage is not necessary for members who are simply to remain over a short while to file a belated report, since they drew mileage as members to return borne. Whether the reasonable board bills of the committee while detained in making up the report would not be included in “necessary expenses” is not before us, but probably that would be conceded. It was urged on one side that, this resolution being passed so short a time before adjournment, the legislature must have intended the committee to sit during vacation; and on the other side that, the resolution having been introduced long before, its passage at this late hour indicated an intention that the committee should get rid of the matter by simply reporting that it could not investigate for lack of time. There is nothing in the resolution to show how long or short the investigation would be. We are authorized to make no surmises. The legislature had power to authorize the committee to sit in vacation and to allow compensation to the members of it. They chose not to do so. They only authorized such continuance for the purpose of filing the report and necessary expenses. The failure to authorize per diem or some compensation is additional evidence that the committee was expected to finish its labors (except possibly as to filing the report) while the assembly were still in session. It was strenuously and it would seem seriously argued [155] before ns that, the Auditor having given his warrant, the Treasurer had no choice but to pay it. The Auditor gives no bond, and if the Treasurer must pay any and every warrant that is presented to him the State Treasury is at the mercy of the judgment of the Auditor who might mistake or misconceive (as in this instance) the meaning of an Act. The laws of this State do not bear that construction. The Auditor examines the items and amounts and passes upon them, and can require the claimant to be sworn and examined as to the correctness of the account. Code, Section 3350 (17). If he finds the amount correct,-and further that payment is provided for by law (Oode, Section 3350 (7) ) he is required to draw his warrant on the Treasurer for payment thereof, but he is also required to put in the face of each warrant drawn by him the Act authorizing such payment. This is to give notice to the Treasurer that he may act understanding^, for he is not required to pay any and every warrant which the Auditor may sign but only “to pay all warrants legally drawn on the Treasurer by the Auditor.” Oode, Section 3356 (3). Should the Treasurer have reasonable doubts he should consult the Attorney General, or if he think proper refuse payment, as in this case, and let the matter be determined by the Courts. Our government is one of checks and balances. It is not intended that payments out of the public funds should be made on the judgment of the Public Treasurer alone or the Auditor alone. The Auditor examines as to the amounts and the performance of the work. It would seem that as to the facts his finding is conclusive, The Oode, 3350 (5), certainly it is sufficient protection (in the absence of any collusion or notice of fraud) to the Treasurer. But the Auditor goes further. He examines as to whether the payment of the claim is authorized or provided for by law. If he so finds, his conclusion as to the law [156] is not binding on nor is it a protection to the Treasurer. The Auditor is required to set out -the act providing for 'payment in the face of the warrant, The Code, 3350 (9) and on the application of such statute the Treasurer must also pass beiore payment, and lie has authority to take the opinion of the Attorney General (Cutió, Section 3363 (4) or he can act without it at his own risk either in paying or refusing payment of a warrant which in his judgment is not authorized by any statute. It is thus that the lawmaking power hedges about the safe-keeping of the public funds. The Treasurer’s bond (Code, Section 3357) is a safe guard not only against his misuse or misappropriation of the funds committed to him, but against his payment of illegal claims, for the bond provides for the “faithful execution of the duties of his office,” and one of those duties is to pay out no money except on warrant drawn by the Auditor and to pay all legal warrants drawn by him. Illegal warrants, not authorized by law, the Treasurer pays at his peril. The duty of the special commissioners appointed under Section 3361 of The Code is not limited merely to examining whether all warrants are signed by the Auditor, a very simple matter, but they are required by that Section to examine also to see whether such payments were authorized by law, as well as by the Auditor. In directing the mandamus to issue there was error. Error.