Year: 1872

| of any one, when drawn against the same


fund. he prays that the mandamus may


be refused.


The evidence taken shows that from the


first of January up to april q, 1872 some


thing over S250,O00 was received in the


State treasury and credited to the gen.
eral fund; but that at no time
| has there been any balance to the
| credit of the general fund in the treasury.


Witnesses We're sworn, who detailed the
manner in which this money, coming into
| the treasury was paid out. AS alleged in
the petition, the officers charged with the
| collection of the revenues of the State pre-
sent to the State Treasurer, either in per
son OF through brokers generally bv such
| hands,, warrants against the general fund
| for which they demand payment, The
Treasurer answers that there is no money
to the credit of that fund; the person, who
| is then ready to settle for collections made
by himself or by his principal, then hands to
the treasurer his cash with one hand and
his warrants with the other demanding
payment. He gets paid.


section 3IS4 OF the Revised Statutes pro-
vldes: III the Treasurer shall wilIfuIly and
lllegaly refuse to pay any warrant law
fully drawn upon the Treasurer, having the
funds in hand to pay the same he shall be
deemed guilty of miBdemeanOr in Office and
upon conviction thereof shall be fined in a





State, and shall forfeit and pay to the
holder OF such warrant four-fOld the money
therefor, to be recovered against him and
his security on his official bond"


This law has been held over the head Of
the Treasurer, and when he has refused to
pay warrants, presented Immediately after
money had been paid to him, he has been
threatened with the penalties prescribed.


The result OF this practice and
of the strict obedience on the part
of the Treasurer to this law has
been to make it impossible for the Off
GERS OF the government to receive them
salaries, or for other creditors holding war
rants against the Treasurer to get their
paid.


In a number of instances aLebhcations
have been made to this court for yrits of
mandamus to compel the Treasurer to paw
warrants presented to him, and in each in
stance the Treasurer has answered that
there was no money in the treasury at the
time the demand was made, and have
been obliged to refuse the writs. 1t is a
settled rule of practice that a mandamus
will not issue against disbursing officer to
compel him to pay warrant drawn upon
him, unless there was money actually in the
treasury at the time demand was made
But this application takes a broader scope,
and necessitates an inquiry into certain
principles of law, in order to ascertain
whether the injury complained of and
shown can not be remedied.


1t is clear that these relatOrs have no
remedy in the courts except by the writ OF
mandamus. The evidence shows that they
presented their warrants to the Treasurer
as alleged, and that there was actually no
money in the treasury to the credit of the
fund against which they are drawn to pay
them. They can not, therefore, proceed by
naf Aar l,T fov, ho ho5
performed his duty under technical and
strict Interpretation of the law.


Article $50 of the Code of Practice de-
clares that the object of the writ Of manda-
mus is to prevent a denial of Justice, or the
consequence of a defective police, and it
should, therefore, be issued in all cases
where the law has assigned no relief by the
ordinary means, and where justice and
reason require that some mode should ex-
list of redressing wrong and an abuse of
any nature whatever.


This proceeding shows a wrong, and an
abuse and defective police. The officers
of the State appointed under the coHstitu-
ton, who give their whole time to the ser
vice of the State for salaries ridiculously
small in many cases, are deferred to specu-
latOrs, and are unable to get from the Treas
urer Of the State the small pittance which
they are entitled to have.


This evil should be corrected. The theory
of the relations in this case is that the Off
GERS charged by law with the collection of
the revenues Of the State are depOsitaries
of the funds received by them, and fduci-
ary agents of the State; that they have no
right to speculate IN these funds, or to use
them in any way TOR their own advantage;
that the use of the public moneys for their
own advantage is, in the eyes of the law, an
embeZzlement, and that the State Treasurer,
knowing the practices complained of in this
action, and being party to them in so far
as TO permit them, is estOpped from
setting up as a defense to these
proceedings, that he has not received the |
money in the public treasury, which should |
have been placed therein.


These general principles are of course
unquestiOnable; but the difficulty is to ap. |
p Y them practically to the case at bar, so |
as to warrant decision in favor of the re-
latOrs, merely based upon this principle of |
law. The evil, it seems to me, to be cor |
rected, lies further back If Judgment |
SHOULD be rendered prohibiting the revenue |
collector from purchasing warrants and |
obtaining payment therefor, a thousand |
ways would be successfully devised for |
avoiding it. If the man holding the money |
does not choose to draw it out himself upon |
warrants, others will be standing by ready |
to do so, and the real evil complained of |
will not be corrected. If public officers are |





evil must be corrected in the name of the |
State by the Attorney General.


But the REALTORS insist upon another more |
general principle Of law. They urge that the /
officers provided for in the constitution of |
the State, and whose compensation is there /
IN fixed, or is determined by special statute |
under warrant of the constitution, are en-
titled to be paid their compensation and |
salaries by preference over the ordinary /
creditors of the State; that any law or prac- |
tice in the administration of the affairs of |
the government calculated to destroy this /
right Of payment is in violation of the con-
and must be held void and in |
valid by the courts.


Article 81 of the constitution declares |
that each Of the district judges shall /
receive salary to be fixed by law, which |
shall not be increased or diminished during |
his term Of office, and shall never be less |
$4,000.


The act of 1868, No. I27, fixes the salary
Of the district judges at $4,000 each per an
mum, the same to be paid quarterly by the |
State Treasurer upon their own warrants
upon the Auditor of Public Accounts. Ar |
ticle l04 of the constitution declares that |
no money shall be drawn from the treasury
but in pursuance of specific appropriation |
made by law.


have noticed, from the arguments made /
in a number of suits before this court in
volving questions in relation to appropria- |
tiOns Of public money, that it is the impress |
sion Ofmany members of the bar that this last /
provision Of the constitution requiring spe-
clhc appropriations necessitates an annual |
appropriation before the Auditor and the
treasurer is authorized to pay the salaries
OF the officers of the State. If this opinion
were correct, the legislative department of
the government would practically have in
Its power the means Of destroying the gov