The record-union., 1891-09-05
COLGAN Was RIGHT.
His Refusal to Pay Portion of the
State Engineers Salary.
Judge Van Fleet Holds That the Leg
islature Did Not Make an
Appropriation.

Superior Judge Van Fleet rendered a
decision yesterday in the case of State
Mineralogist 1relan against Controller
Colgan.
In 1889 the Legislature established the
Office of State Engineer, and provided
that the State Mineralogist should be ex
officio State Engineer. His compensa-
ton was fixed at St, 900 for two years, and
the office was to cease to exist at the end
of that time.
This law went into effect on the 10Th of
May, 1889, and Irelan's term expired on
the 10Th of May of this year. When it
came to settling up the Controller re-
fused to draw his warrant for $3.50 of the
salary, this being the amount due from
the 10Th of May to the 1st OF July-the
first of the fiscal year. He claimed that
the time included between May 10Th and
July lst was not included in the fortieth
fiscal year, and the Legislature had only
provided for the expenses Of that year.
The State Mineralogist petitioned for
writ of mandate to compel the Controller
TO draw a warrant for the $3.50 due.
Judge Van Fleet decides that Controller
Colgan is right.
The Legislature of 1889 passed a gen
eral appropriation bill, in which it pro-
vlded that 1.-The following sums Of money
are hereby appropriated out Ofany money
in the State Treasury not otherwise ap-
propriated for the objects hereinafter ex
pressed, and for the support of the gov
ernment OF the State OF California for the
forty-tirst and forty-second fiscal years."
etc.
''It is conceded says the court, that
the only appropriation made in terms for
the purpose OF paying said salary is that
made by the Act above quoted. The title
of that Act is: An Act making apprO-
priatiOns for the support of the Govern
ment of the State of California for the
forty-firsC and forty second fiscal years.
and the object expressed in the title is fully
borne out by the provisions Of the Act
itself.
There is no room for construction of
the language of Section l Of the Act, as
contended by petitioner, which would
make the appropriation applicable to the
portion of his salary accruing prior 10
July l, 1889.
The unexpended balance of the fund
appropriated is balance remaining from
the amount appropriated for the forty
second fiscal year. Against this fund the
respondent would not be authorized, and
cannot, therefore, be compelled to draw
his warrant in payment of an obligation
accruing in a prior fiscal year.
Petitioner contends, however, that the
Act creating the Office is in itself Suff-
cient appropriation to sustain his de-
mand, and i'll support OF this contention
cites Humbert VS.. Dunn, supra. But an
examination Of that case will disclose
that the Act there under consideration
went much further than the Act upon
which petitioner relies. Here the Act
fixes the salary and stops. In that case
the Act provided that each member of
said commission should receive a salary Of
s., 400 per annum, payable monthly.
. Said salary g to
be paid out Of any money in the State
Treasury, not otherwise appropriately
and the court say: THE question is
whether these provisions of the Act con-
Stitute an appropriation within the mean
ing of the term as used in Section z, Ar
ticle ". Of the Constitution, which pro-
vides that mo money shall be drawn
from the treasury but in consequence of
appropriations made by law" .
! The intention Of the Legislature to pro-
vide for the payment of the salaries Of
the Commissioners as they accrued is
clearly manifested in the language used
but no such intention can be gathered
from the Act under consideration. No
language of similar character or import
is found, nor anything to indicate such
legislative intent, unless it can be said
that the mere fact of creating an office
and fixing the salary is to be held by
necessary implication to manifest an in
tent to appropriate fund to pay it. This
would be carrying the doctrine of imph-
cation to a very extreme limit, and be
rather an Act of legislation than of judi
cial Interpretation. AS my conclusion is
that no appropriation has been made to
pay petitioners claims, the writ will not
lie and the demurrer must be sustained"