Daily capital journal. (Salem, Or.) 1896-1899, 1897-08-10

alton of funds is not an objection to
the Issuance of the warrant: The
People VS.. Lippincott, u Ill. SIS; The
People VS. Secretary OF State, So Ill,
,94.
1t sometimes occurs, however, that
special appropriations are made for a
particular purpose where the act it,
self authorizes the incurring Of the ex-
pense. and is the only warrant of law
therefor, in such cases of course the
measure of the appropriation is the
limit Of authority to Obligate the
state, and hence the secretary could
neither audit nor draw his warrant
because the claim is not one which
the law would recognize as valid
against the state: Flynn VS.. Auditor
General, 80 Mich. SO.
In coming TO this conclusion we
have not overlooked the case of Brown
VS.. Fleischner, Or. 132. This au-
thority may be regarded as in point.
as 1t was based mainly II not exclu-
siYely upon the ground that the au-
thrifty Of the secretary of state to
audit accounts and draw warrants
upon the treasurer depends upon the
condition that an appropriation has
been made for their payment,
although the proceeding was for a
writ of ms ndamus against the treas
urer TO compell him TO pay warrants.
Rut we firmly believe that the case
was decided upon mistaken inter-
probation of the statute, and we can
not give our approval to a -construc
tiOn which In effect suspends the
operation OF certain plain aud distinct
provisions necessary to the due and
orderly administration OF the public
service, and which at the same time
mullities completely one of the most
important constitutional functions
pertaining TO the office of secretary of
state whenever there is not subsist-
ing appropriation. If such was the
intention of the legislature it would
no doubt have given some Indication
thereof in expressing its will pertain
ing to the subject, and In the absence
OF such an Indication we feel con-
strained to believe that such was not
its intention. The case of Brown v.
Fleischner will, therefore, be over
ruled in so far as IL is in conflict with
this opinion.
This leaves but one other question
to be determined, and that is whether
the secretary should be required to
audit and draw his warrant for this
particular demand. The authorities
seem TO be uniform that when the ma
ture aud amount of the services rem
dered the state are definitely fixed
and ascertained and the compensa.
tion therefor is regulated by law,
such as the salaries of public officers,
the duty of auditing and allowing the
account or claim for such services be-
comes mere ministerial act, the per
Torrance of which may be required
by mandamus. And so 1t is with
drawing the warrant for the payment
of the claim or demand: High, Ex-
ira. Legal Rem. SS 101, 1O4 and IO5;
Fowler v. Peirce, 2 Cal. 1856; Ryan v.
Cattell, 10 Iowa 538; Swan v. Buck,
40 Miss. 26S, 291.
In accordance with these considera-
tlons the Judgment Of the court below
will be reversed and the cause re-
manded with directions to that court
to overrule the demurrer.
Bean, j. / concur in the view ex-
pre- sed in the prevailing opinion that
under the statute the secretary Is rot
authorized to audit claim without
Issuing his warrant to the claimant
as evidence thereof; the two acts
seem to be made by the statute con-
current. But am not entirely satisfied
with the conclusion that he can be COM
PEELED by mandamus to audit a claim
and issue warrant thereon in the
absence of an appropriation by the
legislature with which to pay the
warrant when issued, but as my asso.
ciates are agreed upon the question, l
do not feel authorized to dissent upon
the doubt | entertain.