Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1863-06-08


preparatory 70 payment of demands against her,
are taxation. borrowing. &c COnst. art 10. sec
>. bat the money raised by either mode must be
placed in the Statetreasurv before il l. apoied in
payment of debts This j. expressly required bv
statute G.. & H.. ?. els. The money must be
paid 70 the several creditors Of the State. by the
Agent Of State in the CITY of New York. but il
must be transferred to him, to be thus used. from
the treasury of the State. at indianapolis. by the
State Treasurer. Such il the statute In the
code Of 1913 o 292 we find this section:
Src 20. The Treasurer shall also advance
from time 70 time. TO the State Agent. such sums
of money as shall be necessary 70 pay the princ
pal and interest the public debt" &c.
BY the act OF 1889. tits provided that, cat some
convenient period. prior 10 the falling due of the
interest on the foreign debt OF the State payable
At &c the Treasurer shall &c transmit to New
York" &c This section is incomplete. in ths
that il does not say TO whom, in New York. the
Treasurer shall transfer the money: bat when we
look at the acts prescribing the duty of the Agent
OF State. we find the defect may be couiecturally
supplied: nor does the section apply or directly
authorize the application of the money in pay
mont Of anything The question now arises
how. upon what authority, what condition prece
dent. can the Treasurer make the transfer or ad
vance the fundsi The law explicitly answers the
question By the code OF 1913, p. 252, it was
enacted:
CSC 81 Such advances shall be made on
acquisitions drawn by the Auditor OF public &C.
counts on the Treasurer of State. which shall be
numbered and tho amount thereof charged. by
said Auditor. to the Commissioners or Agent re
&C wing the same in n book 10 be kent for that
purpose; and for the amount so charged the Com
missioner or Agent shall settle with the Audi
tor" &c.
CSC - For the amount of satisfactory
vouchers produced at such settlements. the Audi
tor shall issue warrants with which shall be re
deemed the acquisitions before issued and should
anv amount vet remain in any such agents hands.
he shall refund the same 20 the treasury, unless
the same shall be required for new cxpoudi.
ture. when new rcquisiton shall be obtained
therefore"
Under this statute. then. a reasonable time be-
fore the interest fell due, the Agent of State pro
cured from the Auditor n requsition ON the Treas
uTer upOn which the latter transmitted the mon
ev 20 the Agent which requistion was alterwari
redeemed 10y warrant But in 1889 the
law seems 10 have been changed 10 this
extent that the warrant issues in the
first instance in place of the requistion, thus sim
plifying the transaction without any possible in.
crease Of hazard 20 the public fund. Sec. I OF
the nc, OF 1859 q G & II. 6i7l declares that
"the Treasurer OF State Il expressly prohibited
from paving any money out OF. or transferring
any money from the Treasury of State except
upon the warrant OF the Auditor of State" II
IL thus plain beyond doubt that the Agent OF
State must receive the money for the payment ol
our interest. whether that money may have been
raised by taxation. borrowing. or otherwise from
the treasury Of the State. and that the Treasurer
can not now, nor could he ever, transfer or nd
vance TINT money to the Agent. except upon an
thority previously given by tho Auditor Of State,
a warrant from him. or requsition. the equiv
alent of warrant.
This settles the question rs to the power md
duty Of the Treasurer: because. hy see z Of the
net Of Feb %, 1851 IL Is made criminal offence
for the Treasurer % ply out money IN any other
manner than prescribed by law" 81 and ii
p lot IL now dcVolyes upon US tn ascertain
when the Auditor il authorised 10 draw his war.
rant
The constitution of the State provides mt. 10:
SFC . All The revenues derived from the sale
of my of the public works belonging To the State
md from the net annual income thereof, and any
surplus Tint may. ~ any time. remain in the
Treasury. derived from taxation for general State
purposes. after the payment of the ordinary ex-
ncnses of the Government. and Of the interest on
bonds OF the State. other than bunk bonds. shall
be annually applied, under the direction of the
General Assembly to the payment of the princi.
pal of the public debt
Sic 3 No money shall he drawn from the
treasury. but in pursuance Of appropriations made
by law.
Section two. II will he observed. directs that
the funds shall be annually applied under the
direction Of the legislature showing that there
must be under that section a legislative direction,
relating 20 each wear: and section three
points ont how the legislative direction il 10 be
given, viz: by nm appropriation af the money.
And of the act of February %, 1851
! (Acts 1861, ll2 y enacts thus;
"If the Auditor of State shall draw any war.
rant upon the Treasurer o. State unless there be
money in the treasury belonging 10 the particular
fund upon which the same is drawn. 10 pay the
same. and in conformity to appropriations made
by law, he shall he deemed guilty of q msde
mennor, and upon canyciOn thereof shall be
fined in not less than one hundred dol
lars nor more thtu one thousand dollars and be
imprisoned in the county i, not less than one
nor more Than six months" , G. and III p. 457
This act Of l>6l is defective in not defining
what an approximation is as a guide to the audi
tor in regulating his action but the very fact
that the legislature enacted no definition argues
that they must have supposed that an appropra
ton was something pilpable, distinct, recogni
liable. clear in It's own expression so that it could
not be mistaken
Can il be possible that this thing of an appro
priltion. important as To he made the subject
Of distinct constitutional provision. and the mis-
taking OF IL by nm officer n criminal offence is
anything. everything. and nothing, according to
circumstances something to he ascertained by
conjecture. or created hy Imagination
A. Their the treasurer cannot transfer the
money 10 the state agent without n warrant from
the auditor. and the latter cannot issue the war
rant without appropriation. the whole que ston
IN the case turns unon the existence Of that fact
The auditor necessarily decided this question
for himself on the application for the warrant
and he decided against the existence OF m anpro
priation. and refused the warrant Thereupon
this proceeding instituted against him by
creditors ~ compel the issue of the warrant
The court below ordered the warrant issue
The auditor appe llei The application for the
writ was not prem iture. and If there was an ap-
preparation which il might issue. the judgment
Of the court below was right
Was there an appropriation? There was none
in any act nurporting 20 be appropriation bill.
Can one he constructiyely created out of other
acts found in the statute book
This leads to the inquiry what constitutes an
appropriation within the provision Of the consti
sutton prohibiting payment without one What
ia meant nv this constitutional inhibition, this
limitation upon execut We power why was il
made a part of the paramount law of the state
Why were not the executive and administrative
officers left 20 their own discretion in the Of
the public revenues History answers these
questions. The restraints contained in all the
American state constitutions and in the con
stitution Of the United States, upon the pow
ers of the different departments Of Govern
ment imposed with view to provide
against some abuse of such powers which