Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-01-10
Supreme Court
FROM euRlElcH COUNTY.

FROM BuRLEIGH COUNTY.
The State Of North Dakota, ex rel,
Gunder Olson as State Treasurer,
Plaintiff and Respondent VS.. Carl 0.
J%orgenson as State Auditor, Defend
ant and Appellant.
1. Chap. %, Laws OF 1911 provid.
ed for the establishment Of a hail in
surance department, to be conducted
by the commissioner of agriculture
and labor, who was to be known as
the commissioner Of hail insurance.
The funds received from premiums
were known as the hail insurance fund
and were placed in the hands of the
state treasurer. Such law provided
for the hail insurance commissioner
drawing warrants for the payment of
losses, on the state treasury. The
general law regarding the duties. of
state treasurer and auditor require the
auditor to charge the Treasurer with
funds received by the latter and to
credit him with vouchers exhibited
to the auditor. During the months of
January, February and March, 1913,
the treasurer paid about $500 out Of
the hail insurance fund on warrants
issued by the commissioner of hail
Insurance, in accordance with the
terms of the law referred to. The
funds received had been charged to
the treasurer by the auditor OF the
assumption that the provisions of the
general law applied. When the war
rants drawn. by the commissioner of
hail insurance. We're presented ITO the
auditor for the above sum, he refus-
ed to credit them to the treasurer, ia
king the position that he was the only
constitutional officer having the power
to draw warrants on the treasurer,
that, these having been drawn by the
hail insurance commissioner, they
were illegal and invalid. It is held:
A. That on the assumption that the
general law, requiring the auditor to
charge and credit the treasurer with
receipts and disbursements, is appli.
cable to this fund, he is not relieved
from making such, credits of warrants
drawn by the hail insurance commits
sioner, because this fund, is not a
state fund; as It is not. derived from
taxation or any of the other sources
which constitute it a fund of. the state,
and is not used in carrying on any
function of government.
q. That, assuming that the auditor
only a draw warrants on state
funds in the. hands of the treasurer,
that duty may be placed upon any
other suitable person or o cial as to
any fund in the hands of the treasur-
er, which is not a state fund.
C. That the treasurer is the Gus
todian of the hail insurance fund for
those who contributed it. ~
2. The state auditor, If under the
law authorized to keep any record Of
the hail insurance. fund, which is not
determined, does so by virtue Of hold
Ing the Office of auditor for the time
being, and, not because the. individual
to hold that position is any
specified person, and the appellant
accepted thesEburden and as
to att BY reason of his incum.
bency of the office of auditor aid hav-
made the charges against the treas
lrer, cannot escape the duty Of com
the act by crediting the
amount of the vouchers exhibited to
lin. 4!
3. If, however, the law in question:
loes not contemplate the auditor keep
ing any record of this fund, he is not
from making the credit when
le has assumed to make the charges
the treasurer, and mandamus
n either event will lie to compel him
o cancel the charges and clear the
record of the treasurer.
4. Neither the constitutionality OF
he hail insurance law as a whole is
determined, nor the constitutiona1ity
any provision permitting any off,
,ial, other than the state auditor, to
lraw warrants against state funds.
(Syllabus by the court.)
Appeal from the district of Burleigh
W. L. Nuessle, J. Affirmed.
Opinion of the court by Spalding, c.
Barnett & Richardson, of Fargo, at.
for appellant.
Andrew Miller attorney general of
Bismarck, and Alfred ,Zuger and John
yarmody, assistant attorneys general,
10Th of Bismarck, N. d., attorneys for
respondent.