Grout v. Gates , 97 Vt. 434 ( 1924 )

The emergency board was created by section 38 of number 7 of the Laws of 1923, to consist of the Governor, the chairman of the finance committee of the Senate, the chairman of the appropriation committee of the Senate, the chairman of the ways and means committee of the house of representatives and the chairman of the appropriation committee of the house of representatives; (with a proviso not material to notice further). The Governor shall be chairman and the commissioner of finance the secretary of the board. The latter is required to keep minutes of each meeting of the board in a book kept for that purpose and such minutes shall be a public record. By section 39, "Said board shall have authority to make any expenditures necessitated by unforseen emergencies and may pledge the credit of the State for the same." The section then proceeds with specific provisions relating to repairing or rebuilding buildings or property of the State damaged by fire, followed by the provisions: "All sums of money used under the provisions of this section are hereby appropriated for the purposes mentioned in this section. Such monies and appropriations shall be used as said board may direct. Said board shall render an itemized statement, accompanied by vouchers, of the expenditures of all such money and the Auditor of Accounts shall print such statement in his biennial report." And by section 16 of number 8 of the laws of that year, section 39 of Act number 7 was amended by adding a new sentence to read as follows: "Said board shall not expend more than one hundred thousand dollars in any one year."

The emergency board professed to act upon the provisions quoted above from section 39, in adopting its resolution of October 26, 1923 (fully set forth in the statement of the case), and in its subsequent proceedings thereunder. Whether the board acted in the way provided in that section in cases of unforeseen emergencies, is discussed further on. While the defendant admits the allegations of the complaint contained in paragraphs 4, 5, 6, 7, 8, 10, 12, 13, and 14, he says the allegations of paragraph 9, "that the general assembly appropriated the sum of $100,000.00 to the uses of such emergency board for each fiscal year of the current biennial period, or so much thereof as may be necessary for emergency purposes," are matters of law, and asserts that in law there are no funds appropriated to the use of that board for either fiscal year of the current biennial period; that he now declines and will continue to decline to issue his warrant in payment of any requisition of the relator from said so-called appropriations of said board unless and until he shall be thereunto commanded by this Court. The defendant further asserts in his answer and in arguing the case that the facts alleged in the complaint and admitted by the answer do not amount to an unforeseen emergency within the meaning of said section 39; and asserts in his answer that the withdrawal of money from the treasury under and in pursuance of said resolution of the emergency board is contrary to section 27, Chapter II, of the Constitution; and that the defendant is without authority to issue warrants for expenditures made by said board under section 39 of number 7, Acts of 1923, including the expenditures purporting to be authorized by its aforesaid resolution.

The proper construction of the provisions of section 39, on the strength of which the emergency board professed to act, is therefore of paramount importance in the solution of the questions before us.

Adverting to the quotations given from section 39, it will be noted that by those provisions the statute has limited the thing to be done in a particular mode, and this being so, it includes a negative of any other mode. Raleigh Gaston R.R. Co. v. Reid, 13 Wall. 269, 20 L. ed. 570. The same principle is laid down inSmith v. Stevens, 10 Wall. 321, 19 L. ed. 933, where the Court said: "It needs no argument or authority to show that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication prohibited their sale in any other way." In Zottman v. San Francisco, 20 Cal. 96, the court said: "The rule is general and applies to the corporate authorities of all municipal bodies; where the mode in which their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. The mode in such cases constitutes the measure of the power * * *. Aside from the mode designated, there is a want of all power on the subject. This is too obvious to require argument, and so are all the adjudications." To the same effect are Thomason v.Ruggles, 69 Cal. 465, 474, 11 P. 20; Heidelberg v. St. FrancoisCo., 100 Mo. 69, 75, 12 S.W. 914; Douglas County v. Keller, 43 Nebr. 635, 644, 62 N.W. 60; Page v. Belvin, 88 Va. 985, 990, 14 S.E. 443. And in Taylor v. Taylor, 66 W. Va. 238, 19 Ann. Cas. 414, it was held that when a statute limits a thing to be done in a particular manner, or by a prescribed person or tribunal, there is an implication that it shall be done in no other manner, nor by a different person or tribunal.

The making of expenditures and appropriating public money are different things. The former is the "act of expending; a laying out of money; disbursement." The latter is: "to set apart for, or assign to, a particular person or use, in exclusion of all others." Webster's New Int. Dict. See Brown v. Honiss, 74 N.J. Law, 501; Niles School v. Bailey, 161 Mich. 193; Ainsworth v.Dean, 21 N.H. 400.

It follows that by section 39 the emergency board is authorized to make any expenditures necessitated by unforeseen emergencies, but it alone is charged with the responsibility of making such expenditures, which it cannot delegate; and so the board is not authorized to appropriate or set apart money to some department or officer of the State to be so expended, although it may select a person connected therewith to make the expenditures under its direction as hereinafter stated.

This is made certain from the facts that by the same section of the statute all sums of money used under the provisions of that section were thereby specifically appropriated for the purposes mentioned in the section; that such moneys and appropriations shall be used as said board may direct; that said board shall not "expend" more than one hundred thousand dollare in any one year; and said board shall render an itemized statement, accompanied by vouchers, of the expenditures of all such money and the Auditor of Accounts shall print such statement in his biennial report. These provisions, taken with the one empowering the board to make such unforeseen emergency expenditures, can be given no construction as to the mode of operation, other than that provided by the statute, without doing violence to the rule requiring effect to be given, if possible, to every word, clause, and sentence of a statute. State v. Rutland R.R. Co., 81 Vt. 508, 71 A. 197; Petraska v. National Acme Co.,95 Vt. 76, 113 A. 536.

It hardly seems necessary to state that the statute does not necessarily contemplate that the members of the emergency board, when an unforeseen emergency exists, shall themselves attend to or perform the detailed work in making such unforeseen emergency expenditures. Such detailed work may be done by the board through its agent or agents, the personnel thereof being within the control of the board. But the statute does contemplate that, in the interest of State economy and governmental efficiency, the board shall take the administration of the particular work there entrusted to it, and that the moneys and appropriations shall be used under the general direction and control of the board and in its official designation; and that the itemized statement, accompanied by vouchers, required by the last clause of the section, shall be rendered to the Auditor of Accounts by the board itself and in its name. Thus construed the statute carries into effect, as it should, the intention of the Legislature with reference to the manifest object to be accomplished by it. In reNational Guard, 71 Vt. 493, 45 A. 1051.

In this connection we must not overlook the rule making it our duty to adopt a construction of the provisions of section 39, if possible, which will make them consistent with the Constitution.In re Barre Water Co., 62 Vt. 27, 20 A. 109, 9 L.R.A. 195;Cady, Admr. v. Lang, 95 Vt. 287, 115 A. 140. The Supreme Court of the United States, speaking through Mr. Justice White, says this rule is elementary and "plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." U.S. v. Delaware H. Co, 213 U.S. 366, 53 L. ed. 836, 849. To the same effect are Carey v. South Dakota,250 U.S. 118, 63 L. ed. 886; and United States v. Standard Brewery,251 U.S. 210, 64 L. ed. 229.

This rule of construction is peculiarly applicable to the provisions of the statute under consideration. The Constitution (Ch. II, Sec. 27) provides: "No money shall be drawn out of the treasury, unless first appropriated by act of legislation." The essential adherence to this constitutional requirement is shown by the successful endeavor of the Court in Highgate v. State, 59 Vt. 39, 7 A. 898, to bring the appropriations there involved within it. From what we have already said, it is seen that all the sums of money used under the provisions of section 39, are by the law of that section specifically appropriated for the purposes therein mentioned, and consequently are within the purview of the clause of the Constitution set forth above. But it follows that the emergency board was without power to appropriate and set apart, as it undertook to do in and by its resolution of October 26, 1923, the sums of $32,000.00 for the current fiscal year, and $42,000.00 for the fiscal year ending July 1, 1925, out of the general funds of the State or any funds not otherwise appropriated, for the use of the Secretary of State in the automobile department, and adding said sums to the sums appropriated in section 59, (a) 1, and (a) 2, of number 28 of the Laws of 1923, respectively. These attempted acts by that board were legislative in character, and the power essential to their lawful performance was and is exclusively with the General Assembly.

It is said, however, that the act which the relator seeks to compel, being a mere ministerial duty, the defendant, a subordinate executive officer, cannot raise a question as to the constitutionality of the law or laws under which it is claimed the duty is to be performed. True it is, as was said in Clement v. Graham, 78 Vt. 290, 63 A. 146, Ann. Cas. 1913E, 1208, that the office of Auditor of Accounts is a branch of the executive department of State, and it is also true, as there held, that the incumbent of the office has certain purely ministerial public duties to perform, which appertain to his office; but not all of his duties are of that character. He is a constitutional officer, elected biennially by the freemen of the State upon the same ticket as is the Governor, the Lieutenant-Governor, the Secretary of State and the Treasurer. This Court said in State v. Howard,83 Vt. 6, 74 A. 392, that: "The primary purpose of the Auditor's office is to safeguard the funds of the State," and that "the powers of the Auditor are determined by statutory provisions." It is further said in that case: "A ministerial duty is one regarding which nothing is left to discretion — a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist * * * *. If the duty is one that requires the exercise of judgment in its performance it is not ministerial but discretionary. A discretionary duty may be executive or judicial, according to the nature of the subject-matter."

The character of the duties of the Auditor in the respect here in question, may be determined by an examination of the provisions of certain sections of Act number 7, of which Act section 39 now under consideration forms a part: By section 9, "No department shall expend or authorize an expenditure in excess of the amount appropriated therefor for any fiscal year;" by section 13, "The gross amount of money received, in their official capacities, by every administrative department, board, officer or employee, from whatever source, shall be paid forthwith into the State treasury * * * *. Such moneys shall be credited to such fund or funds as are now or may hereafter be designated for the deposit thereof. Money so paid and all moneys belonging to or for the use of the State shall not be expended or applied by any department, board, officer or employee, except in pursuance of an appropriation made by law and upon warrant of the Auditor;" by section 27, "except in the case of funds held by the State in trust, no moneys shall be paid out of the treasury of the State except on specific appropriation made at each biennial session of the general assembly or any special session within the biennial period. The Auditor of Accounts shall not draw his warrant upon the treasurer of the State, except for the payment of specific appropriations duly made in pursuance of the provisions of this section;" and by section 40, "in addition to the duties now prescribed by law, it shall be the duty of the State Treasurer to keep an accurate account in books of account, * * * * of all moneys received by the State from whatever source, and of all moneys withdrawn from the treasury of the State upon warrants issued by the Auditor of Accounts, together with an accurate account of the sums appropriated by the general assembly, and the purposes for which the same have been appropriated, and the treasurer shall furnish a record thereof and of the amounts withdrawn from the treasury in pursuance of each specific appropriation, the balance thereof remaining, together with such other information as may be required, to the Auditor of Accounts, monthly, on the first day of each month. Such statement shall be conclusive and controlling on the Auditor of Accounts, in issuing warrants against the amount of specific appropriations. The account so kept by the Treasurer shall be the only accounts kept by the State for such purposes and shall be controlling and conclusive upon all departments and officers."

The limitation of the authority of departments to make expenditures, as prescribed in section 9, and the inhibitions contained in sections 13 and 27, are each and all in conformity to the clause of the Constitution forbidding money to be drawn out of the treasury unless first appropriated by act of legislation, and no one of those statutory provisions can be disregarded without violating the Constitution in this respect. In addition to this, if the Auditor acts without warrant of law his action is of no effect. State v. Howard, supra.

The foregoing provisions together with the information required by section 40 to be given on the first day of each month by the Treasurer to the Auditor, constitute a three-fold safeguard of the funds of the State, and in performing the duties consequent thereon which devolve upon the Auditor, we think it clear that he is required to exercise judgment, and therefore his duties are discretionary. See State v. Howard, supra.

We do not understand that defendant questions in argument the constitutionality of the statute under consideration; but he asserts, in effect, that the Constitution has a bearing on the construction which should be given to the statute, and also upon the validity of acts done under it. With the soundness of this assertion there should seem to be no room for doubt.

It is urged that the Auditor cannot refuse payment of requisitions against the emergency board's award because (a) the Treasurer's books show the amount credited to the automobile department, and such credit has been certified to the Auditor on the first day of each month since and including December last; and (b) such acts of the Treasurer are conclusive upon the Auditor in the premises. The fallacy of this argument is seen from the particular provisions of section 40, by which the duties of the Treasurer in this respect are defined and also the extent of the conclusiveness of the statement by him to the Auditor. Nothing appearing to the contrary, it is presumed that the books were accurately kept by the Treasurer and that monthly statements were made by him to the Auditor, all in accordance with the requirements of that section. This being so, the statements to the Auditor showed the source of all moneys received by the State, and all moneys withdrawn upon warrants issued by the Auditor, together with an accurate account of the sums appropriated by the general assembly and the purposes for which the same were appropriated, and the amounts withdrawn in pursuance of each specific appropriation, and the balance thereof remaining. Such statements must therefore have shown that the money turned over to the automobile department under the resolution of October 26, 1923, of the emergency board, was not appropriated by the General Assembly, but instead was attempted to be appropriated by that board only. "Such statement," says the statute, "shall be conclusive and controlling on the Auditor of Accounts, in issuing warrants against the amount of specific appropriations." As before observed, this attempted appropriation by the emergency board was without authority in law, and consequently was without force; and there is no law authorizing the Auditor to issue his warrant or warrants against it in payment of any requisition or requisitions of the relator. "A writ of mandamus can enforce the performance of only existing duties. It can neither create new duties nor require of a public officer more than the law has made it his duty to do." Page v.McClure, 79 Vt. 83, 64 A. 451. Such a remedy is available only where there is a clear legal right without any adequate legal remedy. Bankers' Life Ins. Co. v. Houland, 73 Vt. 1, 48 A. 435, 57 L.R.A. 374.

On careful examination of the question, we are of the opinion that the operating effect of section 39 of number 7 is not affected by section 98, number 28, laws of that year.

The foregoing is determinative of this case and the complaint will have to be dismissed. We would ordinarily end our inquiry here without considering the question presented in argument as to the existence of such an emergency as furnishes a lawful basis for the exercise of the powers of the emergency board granted by the first clause of section 39 of the statute. But the question is one of great importance to the public in the administration of the affairs of State, and it having been fully argued, it is thought best to indicate the views of the Court on that question. A majority think and so hold that the record discloses an unforeseen emergency in contemplation of the statute. In view of such emergency when the regular appropriation for the current fiscal year is exhausted, the board can step in and make the lawful expenditures necessary for carrying on the work of the automobile department through its agent or agents as aforesaid, during the continuance of the emergency; and for that purpose may expend such part of $100,000.00 as may be required. And this action, the board can resolve upon now, to the end that the affairs of the department may be conducted in reliance upon said action.

The importance and difficulty of the questions here involved are such that the complainant was justified in bringing this action, and the defendant was equally justified in defending it. We therefore assume that the expense on both sides, including counsel fees, will be, as they should, paid by the State.

Complaint dismissed, without costs to either party.

NOTE — All the Justices concurred in the main portion of the opinion. On the question of whether an emergency existed, the decision was only by a majority, but the Court has failed to designate which of the Justices concurred or dissented on that phase of the case.