Oliver v. Bolinger

Humphreys, J. This suit originated in the Second Division of the Pulaski Circuit Court,, and is a mandamus proceeding by appellee against appellant to compel the issaunce of a warrant by the State Auditor, directing the State Treasurer to pay appellee $300, which was paid into the treasury by appellee in consideration of certain lands which had been forfeited to the State of Arkansas for the nonpayment of taxes due thereon for the yeaTS 1896 and 1897. The money was paid into the treasury and the deed procured from the State Land Commissioner, pursuant to statutes of the State governing the sale of lands forfeited 'and certified to it for the nonpayment of taxes. Prior to the sale of the land by the State to appellee, the State had, by legislative grant, conveyed the identical land to the Bed River Levee District No. 1 in aid of a drainage scheme, which grant contained a number of conditions. A contest arose between the two grantees of the State over the title to the land. It was contended by appellee that, on account of the nonperformance of the conditions contained in the land grant to the levee district, the conditions in the grant had failed, and that the title to the land had reverted to the Staté. This contest resulted in a final decree to the effect that the legislative grant to the levee district was an absolute, and not a conditional, grant, and that the lands belonged to the levee district, never having reverted to the State. Thereafter, on April 13, 1920, appellee procured a refunding certificate from the Commissioner of State Lands, directing the Auditor upon presentation of the certificate to issue a warrant to appellee for the sum of $300. Upon presentation of the certificate the Auditor refused to issue a warrant on the ground that no appropriation had been made to cover it, and this suit followed. It is contended by appellant that, under sections 3405, 3406, 4905, 4906 and 4912 of Kirby’s Digest, it was incumbent upon the State Auditor to issue a warrant to cover the amount paid into the State treasury by appellee in consideration of the conveyance aforesaid.' The statutes aforesaid contain ample authority for the issuance of the warrant by the Auditor and the payment thereof by the Treasurer, if any money had been specifically appropriated by the Legislature for the purpose. No such appropriation has been made by the Legislature. The statutes, to which our attention has been called, are necessarily limited in operation and effect by the constitutional provisions controlling the withdrawal of money from the State treasury. There are two provisions in the Constitution of 1874 governing the manner in which money in the State treasury may be drawn or paid out; The sections are as follows: Section-29, article 5. “No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill; and the maximum amount which may be drawn shall be specified in dollars and cent's; and no appropriation shall be for a longer period than two years.” Section 12, article 16. “No money shall be paid oat of the treasury until the same shall have been appropriated by law; and then only in accordance with said-appropriation.” In construing these sections of the Constitution, this court said, in the case of Dickinson v. Clibourn, 125 Ark. 101, that “a specific appropriation is an absolute prerequisite to the drawing from or payment out of the State treasury of any money therein required to be appropriated. No money for general, ordinary, special, contingent or other expense, no money at all, can be legally drawn therefrom, except under the forms of law in accordance with an appropriation properly made.” The effect of this construction is to prevent money, which has been deposited in the State treasury through forms of law, from being withdrawn without specific appropriations first made by the Legislature. The money in the instant case was paid into the treasury through statutes providing for the purchase of lands which had been forfeited to the State for the nonpayment of taxes. The money thus paid in comes strictly within the prohibition against paying money out of the treasury without spe-' cifie appropriations therefor. We .think there is nothing in the contention that the Auditor should be required to issue the warrant, even if the Treasurer is without authority to pay it. The statutes cited by appellant are as obligatory upon the Treasurer to pay the warrant as upon the Auditor to draw it. It would be an entirely useless ceremony for the Auditor to draw a warrant upon the treasury which could not be collected from or, paid by the Treasurer. Again, there is a statute which specifically forbids the Auditor to draw a warrant against the State treasury unless the money has been previously appropriated by law to pay it. The statute referred to is section 3415 of Kirby’s Digest and reads as follows: “No warrants shall be drawn by the Auditor or paid by the Treasurer, unless the money has been previously appropriated by law, nor shall the amount drawn for or paid under any one head ever exceed the amount appropriated by law for that purpose.” We do not think that statute in conflict with the statutes cited by appellant. All may become effective and operative after, but not before, an appropriation has been made iri accordance with law to cover the amount for which the warrant is to be drawn or issued. For the error indicated, the judgment is reversed and the cause remanded with directions to dismiss the application for a writ of mandamus.