Fischer v. Marsh

Evans, j. In this action the plaintiff, the appellant herein, seeks to enjoin the auditor of public accounts “from issuing or delivering any warrant upon” the equipment and material fund, “or upon any other fund, for the payment of gasoline or oils or supplies or materials of any kind in carrying on and conducting” a gasoline station in the city of Lincoln in which gasoline is sold to the public. On final hearing the trial court found there was “no equity in the petition” and dismissed the action. There is no controversy as to facts, which are as follows: The department of public works has conducted in the city of Lincoln under its immediate supervision a gasoline station from which the public has purchased gasoline! at retail. The retail price has been such that a profit from two to four cents a gallon has been realized. The gasoline has been purchased by the state purchasing agent upon requisition of the department signed by the deputy secretary of — 155 — the department. The vouchers for the gasoline were approved by the governor, the secretary of finance, and the acting secretary of the department of public works. There has been an appropriation for the “state equipment and material fund.” There has been neither appropriation nor authorization for the purchase or sale of gasoline by the state or any of its departments to the public. The defenses are: (1) That, as the state could and did lawfully purchase gasoline to use in its various authorized activities, the irregularity, if any, was in the sale, and not in the purchase; (2) that the auditor had no official knowledge that the warrants were to p.ay for gasoline to be sold to the public; (3) that, the purchase being lawful, the seller is entitled to his compensation; (4) that, the plaintiff being merely a taxpayer and having suffered no pecuniary loss by reason of such sales, cannot maintain this action. The provisions of the Constitution material to this controversy are: “Each legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with the fiscal quarter.” Const., art. Ill, sec. 22. “No allowance shall be made for the incidental expenses of any state officer except the same be made by general appropriation and upon an account specifying each item. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon, and no money shall be diverted from any appropriation made for any purpose or taken from any fund whatever, either by joint or separate resolution. The auditor shall within sixty days after the adjournment of each session of the legislature, prepare and publish a full statement of all moneys expended at such session, specifying the amount of each item and to whom and for what paid.” Const., art III, sec. 25. — 156 — The latter section makes necessary a specific appropriation for a particular purpose, and forbids the drawing of a single dollar from the state treasury unless authorized by an appropriation. State v. Cornell, 54 Neb. 647. And there can be no implied appropriation under the Constitution. State v. Wallichs, 15 Neb. 609. Under the Constitution it is not within the province of executive or administrative officers to determine the purpose for which the state’s funds may be expended. Only the legislative branch of the government may declare for what purpose and within what amounts state funds may be expended. Any other expenditure than that authorized by the Constitution and valid enactments thereunder is unlawful. Gasoline might lawfully be purchased for carrying on the state’s authorized activities. It could not be lawfully purchased for sale to the public, as such purchase and sale were unauthorized by law. It is urged that the auditor had no official knowledge that the gasoline that was to be paid for by the warrants, the issuance of which is sought to be enjoined, was for sale to the public. The Constitution provides: “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 a party aggrieved by the decision of the auditor and secretary of state may appeal to the district court.” Const, art. VIII, sec. 9. Among the duties of the auditor of public accounts are the following: “First. To audit, adjust and settle all claims for services rendered or expenditures made for the benefit of the state. Provided, such services are rendered or expenditures made by authority of law, except only such claims as may be expressly required by law to be audited and settled by other officers or persons. “Second. To draw all warrants upon the treasurer for money, except only in cases otherwise expressly provided — 157 — for by law, and each warrant so drawn shall bear upon its face a reference to the law authorizing the drawing of the same, naming the fund out of which it shall be paid, ■and shall be countersigned by the state treasurer before it is delivered to the party in whose favor it is drawn: Provided, that said warrants need not be drawn for at least "ten days from the date the claim is presented to the auditor.” “Eleventh. To examine books, accounts, vouchers, records, and expenditures of-all state officers, state bureaus, state boards, state commissioners, state library, and all societies and associations supported by the state, state institutions, state normal schools and the University of Nebraska and to report promptly to the governor the fiscal condition shown by such examinations, including any irregularities or misconduct of officers or employees, and any misappropriation or misuse of public funds or property, and any improper system or- method of bookkeeping or condition of accounts.” Comp. St. 1922, sec. 4848. “All persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor tó be audited, settled and allowed within two years after such claims shall accrue; and in all suits brought in behalf of the state, no debt or claim shall be allowed against the state as a set-off, but such as has been exhibited to the auditor and by him allowed or disallowed, except only in cases where it shall be proved to the satisfaction of the court that the defendant at the time of trial is in possession of vouchers which he could not produce to the auditor, or that he was prevented from exhibiting the claim to the auditor by absence from the state, sickness or unavoidable accident: Provided, the auditor shall in no case audit a claim or set-off which is not provided by law.” Comp. St. 1922, sec. 4850. “The auditor, whenever he may think it necessary to the proper settlement of any account, may examine the parties, witnesses or others, on oath or affirmation, touching any matter material to be known in the settlement of such account.” Comp. St. 1922, sec. 4851. — 158 — It is therefore the duty of the auditor to allow no claim, and issue no warrant until he shall have satisfied himself: (1) That there has been an appropriation therefor within the biennium; (2) that the claim is for a specific purpose for which the appropriation has been made; (3) that it is a just claim against the state within these limitations. It is-not sufficient that the auditor does not know, he is required to know, that these facts exist before he is authorized to-issue the warrant, and to this end he has been authorized to inquire of the parties interested, call and examine witnesses under oath “touching any matter material to be-known in the settlement of such account.” It is claimed by the defendant that the claim for gasoline sold to the public is a just debt owed by the state and should be paid. Waiving the question as to the justice of the debt, there must have been an appropriation from which it might be paid. Neither the executive nor the auditor are authorized under our laws to expend the state’s money but for the purpose for which it was appropriated. The statutory inhibition is as follows: “In all cases of. grants, salaries, pay and expenses, ascertained and allowed by law, found due to individuals from -the state when audited, the auditor shall draw warrants upon the treasury for the amount; but in cases of claims, the adjustment and payment of which are not provided for by law, no warrant shall be drawn by the auditor, or countersigned or paid by the state treasurer, but all such claims shall be reported to the next legislative assembly, with such recommendation as the auditor may deem just.” Comp. St. 1922, sec. 4853. The legislature has provided a remedy for the dissatisfied claimant: “If any person interested shall be dissatisfied with the decision of the auditor on any claim, account or credit, it shall be the duty of the auditor, at the request of such person, to refer the same, with the reason of his decision, to the legislative assembly.” • Comp. St. 1922, sec. 4854. There remains the question as to the plaintiff’s right to — 159 — maintain this action. It has been held in a number of courts in other jurisdictions that to entitle a taxpayer to the extraordinary relief of injunction as against an officer in his official capacity there must be an injury to the taxpayer. This rule was announced by this court in Normand v. Otoe County, 8 Neb. 18, a case where the sureties on a county treasurer’s bond sought to restrain an action on the bond they had signed. In Woodruff v. Welton, 70 Neb. 665, it is held: “A resident taxpayer,-without showing any interest or injury peculiar to himself, may enjoin illegal expenditures by a public board or officer.” We quote from pages -667, 668, of the opinion: “The defendant urges that the plaintiff ought not to be permitted to prosecute his suit because it is not shown that he has suffered, or will suffer, any special or peculiar damage by reason of the conduct of which he complains; but in this jurisdiction the law has long been settled beyond debate that a resident taxpayer, as such, and without proof of peculiar interest or injury to himself, may enjoin the illegal expenditure of money -by a public board or officer. Follmer v. Nuckolls County, 6 Neb. 204; Grand Island Gas Co. v. West, 28 Neb. 852; McElhinney v. City of Superior, 32 Neb. 744; Poppleton v. Moores, 62 Neb. 851, reaffirmed, 67 Neb. 388. “In such cases, says Judge Dillon, 2 Municipal Corporations (4th ed.) sec. 922, the court should regard the action as ‘in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached, and deal with and control it accordingly.’ It is evident that, if, in such cases as the present, a taxpayer cannot intervene, no one else can except one who is a participant in the illegal proceedings, and who, according to the defendant’s first contention, will be estopped from so doing. “Finally, it is insisted that the action ought not to be entertained, because it is not made to appear that the public has suffered, or is in danger of suffering, any injury from the proceeding complained of, it not being shown that, if the statute had been obeyed, a lower bid for furnishing the supplies in question would have been obtained. So to hold — 160 — would be, practically, to repeal the statute. No one can say what would have happened if something which did not occur had taken place.” It is therefore ordered that the judgment of the district court be reversed and a judgment pursuant to the prayer of the petition be entered in this court. Reversed : Decree for plaintiff. Note—See States, 36 Cyc. 888 (1926 Ann.), 890, 891, 895.