Brown v. Fleischner , 4 Or. 132 ( 1871 )

By the Court,

Thayer, J.:

This was a proceeding by petition for a writ of mandamus against the State Treasurer, L. Eleischner, to compel the payment of five certain State warrants, drawn in 1869 and 1870 by Samuel É. May, late Secretary of State, upon said Treasurer, who refused payment thereof.

The application for the writ was argued at Chambers before the Judge of the Third Judicial District, Hon. B. P. Boise, and the writ dismissed, from which order the petitioner appeals to this Court.

Many points were discussed in the. argument of this case, by the counsel for both parties, which this Court does not deem it necessary to decide.

It seems from the proceedings herein, that the Legislature which convened in 1868, failed to make appropriations to defray the expenses of the State for the ensuing two years, as required by law.

The only question which this Court has considered it necessary to determine is, whether the State Treasurer was bound to pay warrants drawn upon him by the Secretary of State, when no appropriations have been made by the Legislature for their’payment.

Section 2, of Article IX, of the Constitution of this State reads as follows: “The Legislative Assembly shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year, and also a sufficient sum to pay the interest on the State debt, if there be any.” Section 4, same Article, provides, that “no money shall be drawn from the Treasury, but in pursuance of appropriations made by law.” Section 7, ditto, provides, “that laws making appropriations for the salaries of public officers and other current expenses of the State, shall contain provisions upon no other subject.” The statute, page 621, § 15, subdivision 7 (Mis. Laws, ch. 1, § 15), provides, that among other duties of the Treasurer, “he shall examine and determine the claims of all persons against the State, in cases where provisions for the payment thereof shall have been made by laiu, and to indorse upon the same the amount due and allowed thereon, and from what fund the same is to be paid, and draw a warrant upon the Treasury for the same,” etc.

The Secretary of State, like every other officer of the State government, possesses no substantive powers, except such as are enumerated in the Constitution and statute. The provisions of law referred to define and limit his duties, and he can only exercise those duties upon the terms and conditions specified in those provisions. His authority to audit accounts and draw warrants upon the Treasurer, depends upon the condition that an appropriation has been made by the Legislative Assembly for their payment.

The State Treasurer, like the Secretary, has only limited duties and functions, which he has no right to transcend. He is presumed to know what appropriations have been made by the Legislature, and has no right to pay warrants, unless drawn upon some specified fund', except when a claim or amount is authorized by law to be paid out of a general contingent appropriation, which he may pay upon warrant of the Secretary. (Mis. Laws, ch. 1, § 28.)

These guards and checks upon transactions of public officers were wisely made, and each officer should be required to keep within the scope of his authority, not only in order to secure the interest of the public, but also to protect the rights of the individual citizen. As there were no appropriations made for the payment of the warrants in question, the Secretary of State had no right to draw the same, and the State Treasurer violated no official duty in refusing to pay them.

. The decision of the Court below is, therefore, affirmed.