Case *57*— Mandamus by Finley Shuck against H M. Boswobth, State Treasurer, to Require Him to Pay Plaintiff fob Clerical Services in the Auditor’s Office of Public Accounts.

June 9.

#### Bosworth, State Treasurer v. Shuck.

appeal from franklin circuit court — -JAMES E. CANTRELL, circuit JUDGE.

Judgment for Plaintiff and Defendant Appeals.

Reversed.

Services for .State — Judgment—Issuance of Warrant — Payment by Treasurer.

Under Ky. St., 1903, secs. 138, 139, 4001a, subsec. 4, fixing the allowance to the State auditor for clerk hire in his office, and section 4688, providing that no money shall he paid out of the .State treasury, except on the warrant of the auditor, and then only by check of the State treasurer on -a designated depository, and no check shall he given unless the law under which the money is claimed expressly directed its payment, the treasurer can not be compelled by mandamus to pay a warrant in favor of a claimant for clerical services rendered the auditor, issued by the auditor pursuant to a judgment in favor of the claimant, when the appropriation for clerical services in the auditor’s office had been previously exhausted.

N. B. HAYS, FOR APPELLANT.

B. G-. WILLIAMS, for appellee.

(No briefs.)

Opinion of the court by

Chief Justice BURNAM

Reversing.

On the 30tb of July, 1903, tbe appellee, Finley Shuck, filed bis petition in tbe Franklin circuit court against Gus. G. Coulter, Auditor of Public Accounts of tbe State of Kentucky, in which be alleged that be bad rendered clerical services as chief of tbe claims department in tbe auditor’s office from tbe 1st of March, 1900, until tbe 1st of March, 1903, under tbe following written agreement: “I hereby *459appoint the Hon. Finley Shuck, of Lebanon, Marion county, to the position in the auditor’s office known as chief in claims department at a salary of $2,400.00 per annum. The salary of this place is to commence March 1, 1900. February 28, 1900. Gus. G. Coulter, auditor,” that the aggregate salary due him therefore was $7,200; that he had received at different times amounts aggregating $5,325, leaving due to him, $1,875 — and prayed that a writ of mandamus should issue, requiring the defendant to issue a warrant on the treasurer to him for the alleged balance. The defendant' answered that the obligation sued on was executed without consideration, and that it was not intended by the parties that the plaintiff should file the position of chief of the claims department, or draw the salary stipulated for, except at the pleasure of the auditor, and that he did pay to the plaintiff $2,400 a year until about January 1, 1901; that after that date he was unable to continue to pay the plaintiff this sum out of the appropriations allowed to the auditor to pay for clerical assistance, and at the same time keep a competent clerical force to conduct the business of the office of auditor, and that this fact was well known to the plaintiff and that he was paid a reasonable compensation for his services, which was accepted by him; that there was no fund in his hands or in the State treasury out of which the plaintiff’s claim could be paid; the appropriation had been exhausted in the payment for necessary clerical assistance — ■ and asked that the plaintiff’s petition be dismissed. The plaintiff, in his reply, denied the affirmative allegations of the answer, and alleged that $16,200 had been appropriated by the General Assembly to pay for clerical assistance in the auditor’s office for each year, and that, if this fund had been applied by the defendant to the payment of the clerical force in his office alone, there would have been more *460than sufficient to have paid his claim, but that the defendant had unlawfully diverted $3,000 per annum of the amount appropriated for clerical assistance, in the auditor’s office for the payment of salaries to persons employed in the land office, and that there was a sufficient balance of funds appropriated for the clerical force in the auditor’s office to pay the balance due to him; that by law only $1,200 was appropriated' to the payment of assistance in the land office. The affirmative averments of the reply were denied by rejoinder, and the defendant further alleged that the office of Register of the Land Office had been abolished, and that by the act of March 11, 1898 (Acts 1898, p. 41, c. 11), the duties imposed on the Register of the Land Office were transferred to, and made a part of the duties of, the office of auditor. On the 3d day of October, 1903, an agreed judgment was entered in this action, directing the auditor to draw his warrant on the State treasurer in favor of the plaintiff for $1,500. On the 25th of January, 1904, the appellee, Shuck, brought this action against the appellant, H. M. Bosworth, as treasurer of the State of Kentucky, for a mandamus requiring him to pay the $1,500 warrant which had in the meantime been issued pursuant to the judgment . in the former action. The defendant answered that the appropriation made by the General Assembly for clerk hire and clerical assistance in the auditor’s office for each of the years covered by plaintiff’s term of service had been exhausted by Coulter before the issuance of the warrant sued for; that in fact he had overdrawn the gross appropriations for this purpose for these years, $2,142.82, before the warrant sued on was issued by the auditor, and that no appropriation had been made by law for the payment thereof; and that there was no fund in the treasury available for its payment — and asked that the petition be dis*461missed. Plaintiff, in bis reply to tbe answer of Boswortb as treasurer, pleaded tbe judgment in tbe suit of Shuck against Coulter as an estoppel to tbe defense relied on by Boswortb. Tbe case being submitted on tbe pleadings, it was adjudged that tbe defendant, as treasurer of tbe State of Kentucky, should pay tbe amount of tbe warrant, and tbe defendant has appealed.

Tbe only question for decision is whether tbe appellant,, as treasurer, can be required by mandamus to pay tbe warrant of appellee for clerical services rendered tbe auditor after tbe appropriation for that purpose bad been exhausted in tbe payment of previous warrants for similar services; By sections 138 and 139, and subsection 4 of section 4001a, of tbe Kentucky Statutes of 1903, tbe Auditor of Public Accounts is allowed $17,400 to enable him to employ and pay such clerks as be may deem necessary for tbe proper discharge of tbe business of bis office, including tbe duties formerly performed by tbe Register of tbe Land Office. Tbe selection of tbe clerical force necessary for the proper conduct of tbe business of tbe auditor’s office, and tbe fixing or apportioning of their respective salaries, is left to the sound discretion of the auditor, but tbe aggregate of such salaries can not lawfully exceed tbe amount appropriated therefor by tbe General Assembly. By section 144 of the General Statutes of 1903, be is required to keep an account between tbe Commonwealth and her civil officers, to whom salary or wages are payable out of tbe treasury. Section 4688 provided “that no money shall be paid out of tbe treasury except upon tbe warrant of tbe auditor drawn upon tbe treasurer, and then only by check of tbe treasurer upon a designated depository; and that no such check shall be given by tbe treasurer, even though tbe auditor issues a warrant therefor, unless the law under which the money *462may be claimed expressly directed and ordered that it shall be paid ont of the public treasury.”

It is not necessary for us to determine in this action what may be the ultimate liability of the State under the agreed judgment in Shuck against Coulter, auditor. All that was decided in that case was that appellee had a valid claim for $1,500 for clerical services rendered the auditor, and that warrant should issue therefor. When payment of the warrant so adjudged is demanded of the treasurer, he responds that the specific appropriation for the liquidation of claims for clerical services in the auditor’s office had been exhausted previous to the issual of appellee’s warrant, and that there were no funds in the treasury out of which such warrant could be lawfully paid by him. Ordinarily, when the law recognizes the validity of a claim against the State, it is payable out of any funds in the treasury not otherwise appropriated, but a wholly different rule prevails where a claim against the State is payable only out of a specific appropriation, which has been exhausted. When this state of case is shown to exist, courts can not by mandate require the auditor to issue a warrant for the claim, or the treasurer to pay it. See Throop’s Public Officers, sections 823, 824; Weston v. Dane, 51 Me., 461; Kentucky v. Boutwell, 13 Wall., 526, 20 L. Ed., 631; United States v. Bayard, 127 U. S., 251, 8 Sup Ct., 1156, 32 L. Ed., 159; Page v. Supervisors, 85 Cal., 50, 24 Pac., 607; People v. Hyde Park, 117 Ill., 462, 6 N. E., 33.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.