Files v. State ex rel. Gatewood , 42 Ark. 233 ( 1883 )

Smith, J.

This was a petition for the writ of mandamus to compel the Auditor of Public Accounts to audit the claim of the relators for service rendered as attorneys in Prairie Circuit Court in enforcing the payment of over-due taxes under the act of March 12,1881. The petition sets out the rendition of a final decree condemning the lands to be sold, the allowance of fees to the relators of one dollar per tract, the sale of the lands, and the purchase of a portion of the same by the State. And the prayer was that the Auditor be required to issue his warrant upon the Treasurer, or a certificate of indebtedness for the amount of such allowance. To this petition the Auditor demurred. His demurrer was overruled, and, declining to answer, the peremptory writ was awarded on the second day of December, 1882.

Dy the ninth section of the act of 1881 attorney’s fees are to be taxed as a part of the costs, and charged upon the lands as liens, the amount of the fee to be determined by the court. But the tenth section provides that if the lands shall be stricken off to the State, it shall not be required to pay the amount decreed against the lands, but the costs of the proceeding so far as it relates to such lands shall be certified to the Auditor, who is directed to draw his warrant on the Treasurer for the amount thereof. But there was no appropriation to draw against. Hence the Auditor could not issue his warrant. Constitution of 1874, art. 5, sec. 29, and art. 16, sec. 12; Gantt’s Digest, sec. 2786.

However, it is further provided that “ in all cases where the law recognizes a claim for money against the State and no appropriation shall be made by law7 to pay the same, the Auditor shall audit and settle such claim and give the claimant a certificate of the amount thereof, under his official seal, if demanded, and report the same to the Governor, who shall lay the same before the General Assembly.” Gantt’s Digest, sec. 2779.

The present case falls within this provision. The issue of the certificate of indebtedness was a plain ministerial duty, and, in the performance of the duty, the law had vested in the Auditor no discretionary powers. The demand had been definitely ascertained as prescribed by law, and a refusal to perform his duty iu the premises warranted the interposition of the court by mandamus. Danley v. Whiting, 14 Ark., 687; High on Extraordinary Legal Remedies, secs. 100, 107.

Affirmed.