#### Commonwealth v. Pierce’s Administrator.

August, 1826.

Auditor — Power to Issue Warrants. — By the general law prescribing the duties of the Auditor, he is not authorised to issue a warrant for any claim, not arising under some law or resolution of the General Assembly; and, therefore, a claim under the act of January 8, 1814, for the passage of troops over a toll-bridge, who were in the service of the Commonwealth, but not taken into the service of the State by any law or resolution, cannot be sanctioned by the Auditor, but the redress of the claimant and by application to the Legislature.

niiitia — Requisition of United States — Liability of Virginia for Expenses. — Expenses of the militia in time of war, under requisition of the United States are properly payable by them; and if the State of Virginia consents to advance any portion of these expenses, she is under no legal or moral obligation to pay more.

Same — Same—Same.—If the payment of these expenses is left by law to the discretion of the Executive, a party cannot claim, as a matter of legal right, more than the Executive, in their discretion may choose to allow.

Same — Statute-For What It Provides. — The act of January 3,1814, only provides Cor expenses necessary to place the militia under requisition for the service of the United States, at the appointed place of rendezvous.

The administrator de bonis non of Thomas Pierce, deceased, presented to the Executive a demand of his intestate, for the liquidation and payment of a claim against the State, for the passage of certain companies of militia, during the late war, over a toll-bridge belonging to the intestate. The amount demanded was $317 45 cents, being the sum due at the legal rate of tolls. The Executive referred these accounts to the military accountant, who rejected all but a balance of $79 52 cenis, for which the Governor gave an order to the Auditor of public accounts *to issue a warrant on the Treasurer, and charge it to the United States. The claimant, refusing to accede to the abatement which had been made, demanded of the Auditor a warrant for the whole amount; which was refused, on the ground, that the Auditor had no discretion to depart from the direction of the Executive, and the law not having made any special provision for the payment of such claims.

*170The claimant appealed to the Superior Court of Henrico, where the decision of the Auditor was reversed, and the whole claim allowed; from which decision, an appeal was taken by the Commonwealth, with an agreement that the facts above stated, in substance, should be considered as a case agreed..

The Attorney General, for the appellant,

contended, that neither the Auditor nor the Superior Court, had any jurisdiction to control the decision of the Executive in this case: that the subject of this claim was submitted by the acts of 1814, to the discretion of the Executive, and the military accountant was created only to obey their directions: that this case did not come under the general law, authorising appeals from the Auditor. He referred to 1 Phill. Evid. 281, and Moody v. Thurston, 1 Stra. 481, to shew that in a case like the present, the decision of a board, created by statute, is conclusive.

M. Robinson, for the appellee,

replied, that the acts of 1814, did not apply to this case: that the bridge was authorised by law, and the tolls then fixed were a contract with Pierce, and the Legislature had no power to alter those terms: that, to contend that the Executive had the power of deciding finally upon this claim, would be to give tl;em judicial power, in opposition to the express provisions of the constitution.

*August 5.

JUDGE GREEN

delivered the opinion of the Court.*

From the case agreed, it appears that in 1813 and 1814, many companies of militia in the service of the Commonwealth passed over a bridge belonging to the intestate of the appellee, which was established, and the rates of toll fixed, by an act of Assembly. The tolls for the passage of these troops, at the legal rate, amounted to $317 45 cents. The intestate, in 1816, applied to the Executive for the payment of this account.. They referred the accounts to the military accountant, and he allowed only $79 52 cents, as due upon them ; for which the Governor gave an order to the Auditor to issue a warrant on the Treasurer, and charge it to the United States. The claimant refused to accept the smaller sum; and in 1825, the appellee, his administrator, claimed of the Auditor a warrant for the whole amount of $317 45 cents, which he refused to issue. Thereupon, the appellee petitioned the Superior Court, of Henrico for an appeal from the decision of the Auditor, which was allowed, and the decision reversed. The Superior Court directed a warrant to issue for the whole amount of the demand.

The propriety of this order depends upon several acts of Assembly, the general act prescribing the duty of the Auditor of Public Accounts, and the acts providing for the payment of certain military expenses and the appointment of a military accountant.

The first of these acts is a general and permanent law, and directs that the Auditor shall audit all accounts, claims and demands whatsoever, against the public, arising under any law or resolution of the General Assembly, and grant to every public claimant authorised by law to demand the same, a warrant on the Treasurer for the sum due; and when he shall disallow or abate any article of demand «against the Commonwealth, any person thinking himself aggrieved thereby may, by petition; appeal to the Superior Court of Chancery or Superior Court of Law held at Richmond, for redress, and such Court shall proceed to do right therein: and a like petition shall be allowed in all other cases to any other person, who is entitled to1 demand against the Commonwealth any right in law or equity.

The act of January 8, 1814, provided for a particular occasion. After reciting that it was the duty of the United States to defray all expenses incurred in the defence of the United States, and especially such as were necessary to give effect to the requisitions of militia called out by the President of the United States in the service thereof; but no provision having been made by the United States for certain expenses rendered necessary by the march of certain detachments of militia to-Norfolk and elsewhere, it provides, that the Executive be authorised to cause to be paid any expenditures heretofore incurred or hereafter to be incurred, for the support, equipments and transportation of any part of the militia to the place of rendezvous, which in their discretion may be deemed just and necessary, and appropriated $100,000 to the purposes of the act.

To enable the Executive to carry this act into effect, another act passed on the 1st of February, 1814, authorising the Executive to appoint a military accountant to perform such duties as they might assign to him, in the settlement of military claims and accounts.

The act-of January 1814, provided for no other militia expenses than those necessary to place the militia under requisition for the service of the United States, at the appointed place of rendezvous; expenses which were properly payable by the United States, but which they had not provided for, as is expressly stated in the act. The moral obligation to pay those expenses devolved on them, and not on the State of Virginia; and without the provision made by the act of 1814, there would have been no legal or moral claim upon the State of Virginia to pay any «part of those expenses. That this was the class of expenses intended to be provided for by the act, appears not only from the terms of the act, but by the circumstances that no provision was made for supporting or defraying the expenses of the militia after they reached the place of rendezvous, nor was there any law for employing any part of the militia in the service of the State, and paying their expenses. Both the claimant and the Executive understood that the troops, on account of which the charges in question were incurred, were troops in the service of the United States. The accounts were exhibited by the party as accounts against the United States; and *171the portion directed to be paid by the Executive, was directed to be charged to the United States. The Eegislature, providing for the payment of those expenses which were properly chargeable directly upon the United States, might justly limit the advances to be made, by any rule, according to their discretion. They accordingly limited the payments to be made by the Executive, to such as in their discretion might be dee.med just and necessary. A party, claiming under this act, can claim as a matter of legal right, only so much as the Executive in their discretion choose to allow. The grounds upon which they disallowed the greater part of the claims in the case, do not appear; nor is it material that they should, since the subject was committed to their sound discretion. ■The Auditor had no authority to audit the accounts in question originally. His duty was, to issue his warrant for' the sum directed by the Executive to be paid. He had no authority to control the judgment •of the Executive in this particular, any more than he has to control the discretion •of the Executive, the Courts of Justice, and ether tribunals, to whose discretion is confided the making allowances to persons who render services to the public in many ■other instances, without any limit to that discretion. When there is such a limit fixed by law, it is the duty of the Auditor ■not to carry into effect any order transcending the legal limitation upon that discretion. In this case there was no such limit.

*We are not, however, at liberty to consider this as a case falling under the act of 1814. The case agreed expressly states, that the troops were in the service •of the Commonwealth. By what authority they were so, is not stated. There was no law or resolution of the General Assembly, that authorised any militia to be employed in the service of the State, or providing for the payment of the expenses thereby incurred. In such a case, the Auditor could audit no account, nor issue any warrant, for such expenses. His power is to audit accounts and issue warrants to those authorised by law to demand the latter, for demands arising under some law or resolution of the General Assembly. If in a ■case of emergency, the Executive were to call the militia into service, the expenses incurred thereby could only be provided for by subsequent legislation. The pay and subsistence of the troops, and other expenses incident to their service, could not Ibe adjusted by the Auditor and the Courts of Justice upon the principles of á quantum meruit or quantum valebat.

That part of the general law which authorises an original petition, upon which right is to be done to any person having any demand in law or equity against the Commonwealth, cannot apply to such a case as this. Such demand must be founded upon some existing law. No such demand can exist against the public upon the principles of implied assumpsits, unless it be founded upon some contract authorised by law, made by a public agent, or upon the payment to the Commonwealth, of money which she was not entitled to claim.

If any injustice was done to the complainant by the Executive, in rejecting the larger part of his claim, he can only be relieved by an application to- the Eegislature. The order must be reversed, and the petition dismissed.

*

The President and Judge Coadter, absent.