Nichols v. Comptroller , 4 Stew. & P. 154 ( 1833 )

Per Curiam.

This is an application on the part of William Nichols, superintendent, of the. State cap-itel, for a rule against the comptroller of public accounts, requiring him to show canse why a mandamus should not issue, commanding him to grant a warrant on the Slate treasury, in favor of said su¡ er« intendenta lor his,first quarter's salary, of the present year.

The case has been fully argued, and with ability, and requires much deliberation in arriving at a correct conclusion.

We lay down the proposition as true, that the Circuit Court, being a Court of general common law jurisdiction, has authority to grant writs of manda- ■ mns in all cases where a mandamus is the appropriate remedy. And though the three [lowers of the government are declared by the constitution to he co-ordinate branches, and can not encroach on cadi .other; yet it was never contemplated that ihe granting of a mandamus, 1o compel an officer in the executive department to do his duty, would be such an encroachment.

Tile constitution expressly grants to the Circuit Court, original jurisdiction, in all matters, civil and criminal, not odierwise excepted in the constitution. The issuing of a mandarnos, (being authorised by 1 he laws in force at the adoption of the constitution, and which were also adopted by the same instrument,) has, by the constitution itself, become a necessary incident to this original jurisdiction of the Circuit Court.

The next, inquiry is, in what cases m jy a mandamus issue? It is said, by the best authorities, that, ¿t may go, ixi all cases where there is a clear right, •and (here is no oilier remedy known to die law.— That it may go to ministerial or exemi ive officers, to Compel them todo timir dot v. 6u‘. We h< Id, then, lhat it muy «d to liie comptroller of the treasury department, to compel him to grant a warrant on the treasury, if the right of the party be clear, and there is no other remedy known to the lawn

In ihe case under consideration, it was contended, that die architect had anolher remedy, known to the law, which was a suit against ihe Stale. But, we apprehend, where the demand is lor a quarter's salary, fixed and appropriated by law, and made payable quarter annually, at. the treasury, that a suit could not. he sustained against the State. Because, in all such cases, it is ihe duty of the eomp'roller to grant his warrant on the treasury — no soil or judgment against. ihe State, could better ascertain the amount, due, or confer a belter right than the appropriation already made by law. It is conceded that, no money can be drawn from the treasury, but in pursuance of an appropriation made by law, but it is not necessary, 1 hat there should be an act passed annually, for the appropriation: if there, is a general law, fixing ihe salary, requiring it to be paid at the treasury, annually or quarter annually, this is sufficient.

If there was a clear right, ihe act, therefore, giving to the architect, of ihe Stale capitel, an annual salary of one thousand seven hundred and forly-nine dollars, to be paid quarter annually, out. of any mo-,;riy in the treasury, not. otherwise appropriated; together with the certificate of the commissioners, stating that the architect, had done his duty, and was entitled to receive his pay, was a sufficient authority for the comptroller to issue his warrant.

Wc are therefore inclined 1o think, that if Nichols lias a dear right, the mandamus ought to be granted ; and which is now the only remaining enquiry.

A part of 1I10 Dili section of theaclof 1527, reads as follows — that ihe commissioners, aforesaid, shall cause the said State Capitol to be completed at as early a lime as practicable, not exceeding three years.”

The act went into operation from the lime of its passage, and was passed, Üd January, 1827.— It of course expired by its own limitation, on the 3d of last January'. The commissioners were appointed for the express purpose of causing the State Capitol to be built and completed — but. if this was not done in three years, ihey had no authority to proceed in the work after that time. With their power, ihe office and salary of architect, also ceased — unless the limitation was extended to a farther time by some subsequent law, but which law we have been unable to find.— The architect, therefore, bad no (dear right, after the od of January last. The rule is therefore d is-* charged with costs.”