Daily capital journal. (Salem, Or.) 1896-1899, 1897-08-10
MANDAMUS.
The Supreme Court Acts.
Cases Against Sec. Kincaid
Reversed.
Opinion by Judge WolVerton'
Partially Dlssented From by Judge
Bean.
Opinion by Judge WolVerton'

The supreme court today handed
down decisions in the mandamus case
against Secretary Kincaid to compel
him to audit claims and issue war
rants for same. The opinions. which
everse Judge Hewitt's decisions, were
written by Judge Wolverton, and all
are covered by the following in the
case of E. d. Shattuck VS., Fl. r. Kin
caid:
THE OPINION.
This is a proceeding by mandamus
to require the secretary OF state TO
audit "a claim and draw his warrants
for the salary of circuit judge for the
quarter ended March 81, 1897. The
Secretary resists the proceeding upon
the ground that the legislature hav-
ing failed to make appropriations Tor
the current expenses Of the state he
Is without authority either TO audit
or draw his warrant for such claim.
The case comes here upon demurrer
20 the alternative writ which was
sustained by the lower court.
By S2297 HIPS Annotated Laws Of
Oregon, it is provided that "Each Of
the Judges of the circuit courts IN
this state (shall) receive an annual
salary of $4,000, payable quarterly, and
no other allowance for their services,
either directly or indirectly" and by
S223O that 1.-The salaries of the gov
ernor, secretary of state, and other Of
ficers of the state, shall be paid quar-
terly, out of the treasury OF this state,
upon the warrant of the secretary OF
state, commencing from and after
they enter upon the duties of their
respective Offices" These sections
clearly establish the plaintiffs right
to the quarters salary claimed and
upon this point there is no conten-
tion.
Section 4, Art. TX of the state con-
stitution provides that mo money
shall be drawn from the the treasury,
but in pursuance OF appropriations
made by law" and section 2, Art. vi
Constitutes the secretary OF state the
auditor of public accounts. Sectlon
2230, supra, was section or an act ap-
proved June 2, 1859, and by the same
act it was provided, among other
things, as follows:
s'Sec. 2, The secretary or state snail
superintend the fiscal concerns or the
manner prescribed by law.
To keep fair, clear, distinct and
separate accounts Uf all the funds and
revenues of the state, and also OF all
expenditures disbursements and IN
yestments thereof, showing the par
ticulars of every expenditure, dis
bursement and investment.
To examine and determine the claims
of all persons against the state IN
cases where provisions for the pay
ment thereof shall have been made by
law. and to endorse upon the same
The amount due and allowed thereon,
and from what fund the same is TO be
Daid, and draw warrant on the treas
nry for the same; and he shall report
the legislature at the commencement
OF each regular session complete llst
OF all accounts so audited. together
with a general statement OF the nscal
concerns of the state; no account
shall be so audited, except the same
be duly verified by the oath, afndavit
or affirmation of the claimant or MS
agent, and all accounts shall he Kept
on file in his office.
thai nurpose. an abstract of all war
rants drawn on the treasury, snow
inc the date, number, name or the |
claimant, the amount claimed, the
amount allowed thereon and from
which fund to be paid.
Sec. u. Whenever any account
shall be presented to the secretary OF
state for settlement, he may require
the person presenting the same or
any other person or persons 10 De
sworn beforeEhim touching such 'ac-
count. and when so sworn, TO answer
orally or in writing as to any Iact re-
latlng to the business of the account.
If apy person interested shall be dis
satisfied with the decision OF the sec
retary, on any claim, account or
credit, 1t shall be the duty or the sec
retary, at the reqnest of such person,
to refer the same, with his reasons
for his decision, to the legislative as
sembly, and all persons having claims
against this state shall eXhlDlt the
same with the evidence In support
thereof to the secretary TO be audlted,
settled and allowed within two years,
and not afterwards. And In all SUITS
brought in behalf OF the state, no
debt or claim shall be alloweo against
i he state as a set-otf but such as naYe
heen exhibited to the secretary, and :
hyhim allowed or disallOwed, except
only in cases whsre shall be proved TO
the satisfaction of the court that the
defendant at the time of trial is in
pOssessiOn Of vouchers which he
rOald not produc to the secretary, on
account of absence from the state,
sickness or unavailable accident"
Other sections OF the same act pro-
vide that: 1.-THE state treasurer
shall keep his office at the seat OF gov
,rnment. shall receive and haYe charge
IF All moneys paid into the state
treasury, and shall pay out the same
IS directed by law"
at shall be the duty of the treas
lrer. rSecond-TO pay on de-
nand OF the state treasury all sums
by law to be paid, If there
ire appropriate funds in the treasury
% pay the same, and when any such
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