The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1874-07-24
SUPREME COURT OF APPEALS,
Joseph Shields and A. 4. Pres
ton against +. A. Ben
nett, Auditor.

HUFFMAN, J~dgS, delivering the opinion
of the Court.
On the Goth day of January, 1874,
Shields and Preston filed their petition
in this Court in which they represent:
That by an act passed by the leglSla-
ture on the eth day of April, 1868, an
appropriation often thousand dollars was
made for the civil contingent fund for
the fiscal year ending on the Both day OF
January, 1874; and an appropriation OF
six hundred dollars was made to insure
the capitol building and State library
to be paid out of the civil contingent fund:
That on the 18th day Of November, 1873,
the appropriation for insurance had not
been cxhaustcd That the capitol build
ING is owned by II body corporate, known
AS the State House Company, and occu-
pied by the State under II license by the
company: That ever since the building
has been SO occupied, the Legislature
has made provision for It's insur-
ancc: That in November, 1873, Laidley,
the Se.retary of the State House
company made application to the pc
titioncrs, on behalf of the company, to
obtain policies of insurance on the cap
itol building, in the insurance companies
represented by the petitioncrs-in the
Fire and Marine Insurance Company of
Wheeling, 5000 dollars; in the Under
writers Company of New York, 12,jO0
dollars; and in the Franklin Insurance
Company; l2,50O dollars. That III con
sequence of this application the petition
crs procured policies of insurance to be
issued by the several insurance companies
mentioned, for the respective amounts
stated on the capitol building, and de-
livered them to the Governor, who ac-
cepted and approved them, and, there
fore, on the 18th day of November, 1873,
made an order on the Auditor to pay, out
of the contingent fund, to the petitioners,
rs agents for the companies mentioned,
the sum of S229.50, the amount of pre-
miums and costs due on the policies.
That on the same day the petitioners
presented the order to the Auditor and
applied To him for his warrant on the
Treasurer for the sum last mentioned,
but he refused to issue his warrant, and
indorsed on the order that it was pre-
sentcd for payment, and he declined to
issue his warrant for the amount, because
bv law, the ,Janitor was charged with
the proper care and preservation OF The
Capitol building, and bills for its inSur-
ancc are required to be paid out OF the
civil contigent fund, upon the requlsl-
ton of the officers having those matters
in charge; and that, consequently, pay
ment on this account should be made only
upon the order of the JanitOr. That the
policicS of insurance still remain with
the Governor, and the petitioners have,
ont of their own moneys, paid to the in
surance companies the sums due them
respectively on the policies; and these
sums are now their property, and the
several insurance companies are not M
terestcd in the money. The petitioners,
therefore, pray that writ of mandamus
be awarded, directed TO the Auditor,
commanding him to ISSUE his warrant
for two hundred and twenty-nine dollars
and fifty cents upon the Treasurer, payable
to the order of the petitioners agents, ont
of the appropriation for the civil contm-
cent fund, on account of the policies.
It was ordered that Il mandamuS nlSl
10Th day of January, 1874. ,,
The Auditor made return, in which he
states:
That the petitioners contracted for the
insurance of the capito. buildings with
the State House Company, which was
not the agent Of the State, and had no
authority to act in behalf of the State,
and the petitioners have no demand
against the State.
That if the contract for the Insurance.
of the capitol building made between the
petitioners and the State House rl"m-
pany, was approved by the Governor, ne
had no authority to approve and ratliy 1t
in behalf of the State, and the Auditor
had no authority to issue his warrant on
the Treasurer ON the requisltion present
ed by the petitioners.
That the Janitor is the only officer
authorized by law To contract for the III
surance Of the capitol building
That on the 18th day of November,
1873, the Janitor procured from Moore
/ from whom policies of insurance on the
building for the year ending on the list
day of January, 1873, had heretofore
been obtained. that had not then
expired for the year ending on
the 2lSt day of November, 1874, as fol-
. lows: In the Union company of Baltl-
more. five thousand dollars; the Peabody,
of Wheeling, five thousand dollars; Con
tinental. New York, ten thousand dol
lars; Franklin. Wheeling, ten thousand
dollars: American Central, New lork k,
five thousand dollars; Home, New York,
ten thousand dollars; North British and
Mercantile. five thousand dollars: Nail
CITY, Wheeling, five thousand dollars.
That on the 18th Of january, 1873, he
made requisition Oh the Auditor. IN Ia
yor of Moore for three bundled and eighty
seven. the amount of the premiums due
for three policies, for which sum1the Aud
itor issued his warrant on the treasurer,
PAYABLE out of the appropriations, for the
civil contingent fund for the year OF ls'5'
He prays the Judgment of the Court
whether he can be compelled to issue his
warrant in favor ofthe petitioners upon
the Treasurer for the sum Of two hundred
and twenty-nine dollars and fifty cents.
The petitioners demurred IL the re-
turn.
The Code adopted in 1868, in chapter
+ ii, contains this section;
.25. Out of the sum annually appro-
priated as a civil contingent fund, there
may be paid all expenses incurred in the
execution of any law for which there is no
special appropriation, and any other
/ SIMS which the Governor may deem