State ex rel. Wynne v. Jumel ( 1880 )

Spencer, J.

If such be the fact, they were drawn by a former Auditor, for whose acts the respondent is not responsible. If there was a misapplication of the fund by his predecessor, the case is not relieved of the difficulty that there is no fund, except $21.60 against which the present Auditor can draw. The relator has shewn that taxes amounting to $7,555 belonging to the general fund of 1872, have recently been collected, and that there are uncollected taxes of that year of the same fund amounting to $293,000. This does not help the relator if the Legislature has not appropriated them to the payment of his claims. The Auditor’s defence is not that there are no funds, but no appropriation of them. Before the Auditor can draw upon the funds in the treasury, the Legislature must appropriate them to the purpose for which they are to be drawn. The mandamus should not have been made peremptory except for $21.60.

Judgment amended accordingly.