Clark v. Carter , 86 Okla. 126 ( 1922 )

This was an action in the district court of Oklahoma county by George F. Clark, a member of the State Board of Public Affairs, against Frank C. Carter, as State Auditor, for a writ of mandamus to compel said Frank C. Carter, as auditor, to allow a claim of said George F. Clark and to issue warrant therefor for traveling expenses incurred by said George F. Clark in the discharge of his duties as a member of the State Board of Public Affairs. Upon the hearing the trial court denied the writ, and claimant, George F. Clark, has appealed from the order of denial to this court.

These questions of law are presented, which, together are determinative of the case: First, whether, under the law, the State Auditor is vested with any discretion in the auditing or allowance of a claim against the state, or whether his duties are purely ministerial and when a claim is presented in proper form, he has no other duty than to audit it and issue a warrant therefor. Second, if he has any discretion at all, do the facts in the case at bar show that he has abused such discretion in refusing to allow the claim and to issue a warrant for the same? Third, if he has abused his discretion, then what is the claimant's remedy?

In this opinion our purpose is only to interpret and declare the law which governs the case. As to the first proposition, sections 8065 and 8066, Revised Laws of 1910, are as follows:

"Sec. 8065. All claims or accounts against this state which by law are to be paid from the funds of the state by virtue of appropriation made by the Legislature shall be itemized and sworn to as just, correct, due, and according to law, and shall be signed as approved by the officer having control of the department or institution incurring such indebtedness, under such rules and regulations as may be by them prescribed, and shall be filed with the State Auditor; Provided, that any officer or employe of the state who shall certify or indorse his approval on any unjust or improper claim or account against this state shall be deemed guilty of malfeasance in office, and upon conviction thereof shall be punished as prescribed by law.

"Sec. 8066. All accounts or claims against the state which shall be by law directed to be paid out of the treasury thereof shall be presented to the auditor, who shall examine and adjust the same, and, for the sums which shall be found due from the state, shall issue warrants payable at the state treasury, which shall be numbered consecutively, and each warrant shall specify the date of its issue and the name of the person to whom payable, and corresponding thereto, shall be entered upon a stub for each warrant separately, and such stub shall be preserved by the auditor in his office: Provided, that before issuing warrant in payment of any claim or account, the auditor may require additional information, and he may call, swear and examine claimants and other witnesses in reference to any claim or account presented to him."

The foregoing sections plainly impose a duty upon the State Auditor which, in my opinion, calls for the exercise of at least some degree of discretion. Section 8066 provides that "all claims against the state * * * shall be presented to the auditor, who shall examine and adjust the same," and the further provision that before issuing a warrant in payment of any claim, the auditor may require additional information and may call and swear witnesses in reference to any claim. This, it seems to me, is intended to vest him with some degree of discretion in the matter of whether he should issue a warrant against a state fund.

Section 8065 provides that all claims or accounts which by law are to be paid from the funds of the state by virtue of appropriation made by the Legislature, shall be itemized and sworn to as just, correct, due, and according to law and shall be signed as approved — not ordered to be paid by the officer having control of the department, but merely signed as approved by such officer — and shall then be filed with the auditor — not allowed by the auditor, but filed with the auditor. It does not say that the auditor shall thereupon audit said claim and issue a warrant for same, nor does it say such claim, being itemized and sworn to as just, correct, due, and according to law and being approved by the officer having control of the department, shall even be prima facie evidence of its validity or its correctness, nor does it say that a claim thus itemized, sworn to, and approved and being in all things regular on its face, shall be conclusive evidence to the auditor of its validity and correctness, and that it is a claim which by law is to be paid from funds of the state by virtue of appropriations made by the Legislature; it merely says, "Shall be filed with the State Auditor," and says no more in that connection. This section does not say that the claimant, or the officer in control of the department which incurred the indebtedness, has any further duty or is vested with any further authority or is given any other rights. It is merely to be filed with the auditor; that is, left with him and indorsed by him as filed on the date, etc. This section in itself does not require anything further to be done by either the auditor or the claimant. It is merely filed with the auditor; left with him to take such action as the law prescribes he shall take. And the next section, 8066, prescribes what action he shall take. It says, "The auditor * * * shall examine and adjust the same, and for the sums * * * found due * * * shall issue warrants," etc. It does not say how far he may examine it, nor to what extent he shall examine it, but the reasonable inference is that he may examine it to such extent as to enable him to adjust it. The statute makes it his duty both to examine and adjust a claim, both of which duties necessarily call for the exercise of judgment — discretion. It does not say how he may or shall examine a claim, nor how far he may or shall adjust one, but the reasonable inference would be that he may adjust it in such manner and to such extent as to determine whether it is a valid charge against the state before he shall be authorized to issue a warrant. And in order that he may fully satisfy himself, if he requires additional information as to its correctness or validity, his scope of authority is expressly enlarged by the proviso at the close of section 8066, supra, in order that he may be fully satisfied. What purpose could there be in requiring him to examine and to adjust a claim and in expressly enlarging his scope of authority in acquiring further information if he has no discretion after obtaining the additional information? If, when a claim is itemized and sworn to and is approved and filed with him, he has no further duty but to audit the claim and issue warrant therefor?

To review the question from a different angle, this section imposes a positive duty upon him without defining the extent of such duty or prescribing how it shall be exercised. Obviously, then, it is left to him to determine the extent of his duty and the manner in which it shall be performed. The section plainly says he shall examine and adjust all claims, and for the amount he finds due shall issue a warrant, etc. It makes it his duty both to examine and to adjust a claim, and by not prescribing how he shall examine it and by not prescribing the extent to which he may adjust it he must necessarily use his own judgment in performing the duty thus imposed upon him and is left to be the judge as to when he has fulfilled such duty.

This would not be true if the statute defined the extent of his authority or the manner of exercising it or pointed out the extent to which he might adjust a claim after having examined it; but the statute does neither. Though it places an affirmative duty upon him, it leaves him to be the judge of his duty and holds him responsible under the penalties of impeachment and criminal prosecution for failure to fulfill his duties.

The contention that his duties are purely ministerial, that he is simply a ministerial officer and that when a claim is duly itemized, accurately added, made out in proper form, sworn to according to law and approved by the officer in control of the department which incurred the expense and is presented to him, he has no further duty than to issue a warrant for it, is not supported by the statutes. In fact, there is not one word of statute which supports such view. It is admitted that if there should be a mistake in the addition of a claim, the auditor might be authorized to correct it, or if a claim should not be made out in proper form, he might correct it in this respect, or if it should not be sworn to as the law requires, he might require that it be properly verified; but is urged that he can go no farther than this; that it is not his duty and he has no authority to do more than to determine whether a claim is correct in amount, has been properly itemized and sworn to and made out in proper form and approved by the officer at the head of the department.

In answer to this contention we repeat, there is not one word in the statutes which supports such view, for if the heads of the various state departments, the Board of Affairs in this particular case, have power to prescribe to the State Auditor the forms on which claims shall be made out, the manner in which they shall be itemized and sworn to, and have control over the funds of the state and the auditing of claims against such funds and have approved a claim as a valid and proper one, then what authority has the auditor to question it in any particular? What right has he to object to the form of a claim or its verification or its approval or the correctness of its addition, if the officer in control, the Board of Affairs in this case, has approved it? Or what authority has he to object to a claim in any particular, if he has no authority to reject it altogether, if he finds it defective in all respects? Or what authority has he to refuse to issue a warrant for a claim which he knows to be utterly invalid, if the department in question has absolute control over the funds appropriated to its use and for its benefit? The inconsistency of the two propositions reveal their total lack of reason.

It is a mistaken view that the State Auditor is merely a ministerial officer and that his duties are purely ministerial. Section 1, article 6, of the Constitution makes the State Auditor a part of the executive power of the state government and makes him one of the executive officers of the state and vests him with a part of the executive authority of the state. It makes it his duty to see that the law, especially the law pertaining to his office and his duties, is faithfully executed. He is charged with knowledge of the duties imposed upon him by law, and charged with the duties of enforcing and executing such laws as pertain to his duties, among which is the duty of keeping an account of all funds of the state, and to see that no claim is charged against any of such funds and no warrants issued in payment of any claim that is not a valid charge against a fund duly appropriated by the Legislature. This is his primary duty as the state's accountant.

The Constitution makes him an executive officer of the state, and article 3, chapter 75, Revised Laws 1910, makes him the state's accountant as to all of the state's funds. It makes him the keeper of the state's accounts of funds and the guardian of such accounts. The state looks to the auditor, and to no other, as the keeper and guardian of its accounts and funds. It is true, the statutes provide that heads of departments shall not exceed the amount of funds appropriated for a particular purpose, and provide penalties against them for approving an illegal claim, but, notwithstanding this, the state still holds the auditor responsible for issuing a warrant for an illegal claim.

Sections 8065 and 8066, supra, and 8068, Revised Laws 1910, prescribe how a warrant against the state's funds may be obtained, and section 8069 says:

"For the redemption of all warrants issued in conformity with the provisions of this article, the credit of the state is hereby pledged."

Thus the duties pertaining to his office and the enforcement of the law in reference to the manner or method of obtaining a warrant against the state funds is confined to the State Auditor to the extent that when he has issued a warrant in conformity with the provisions of said article 3, the credit of the state is pledged for the redemption of such warrant.

The state looks to the auditor, and not to any other officer, to determine whether a warrant has been issued in conformity with the law, and the state holds him responsible for the allowance of an illegal claim and the issuance of an invalid warrant. Hence, to divest him of discretion in the allowance of claims and issuance of warrants would be to prohibit him from performing the plain duties imposed upon him by law.

The question whether a claim is properly itemized, made out in a particular form, and sworn to a particular manner and approved by the officer in control of the department is not the primary purpose which the statute has in making it the auditor's duty to examine and adjust a claim. The primary purpose of the law is to prevent the allowance of illegal claims. The matter of form in which a claim may be presented is not the primary purpose of the statute. The primary purpose of the statute is to guard the funds of the state against illegal claims, and the auditor is made the guardian of the accounts of such funds. And the state will not pledge its credit for the redemption of any warrant unless it has been issued by the State Auditor.

With reference to the State Board of Public Affairs in this particular case, and in reference to the powers of the State Board of Affairs generally, there appears to be an unjustified confusion as to whether the Board of Affairs or the State Auditor has control of the funds against which this claim was made. This confusion seems to have grown out of the fact that article 4, chapter 75, Revised Laws 1910, created the Board of Public Affairs and provided for members' salaries and for the payment of necessary expenses actually incurred by them in the discharge of their duties, and prescribed their duties pertaining to the supervision of state buildings and state property and the purchasing of supplies, furniture, and implements needed by any of the departments of the state, or officers of the state, in the discharge of their respective duties, and made the board the supervisor and custodian of all state property and made it, the Board of Affairs, the purchasing agent for all supplies, including stationery, printing, stamps, etc., needed by any of the departments of the state of officers of the state in the discharge of their duties, and charged the Board of Affairs with the duty of keeping an account of all property belonging to the state, and provided that all claims against the state for any of the items mentioned in said article shall be presented to the Board of Affairs in the form required by said Board of Affairs and be audited and approved by said board under such rules and regulations as it may prescribe.

While it is true that under said article 4, chapter 75, supra, all state property, not state funds, let it be borne in mind, but all state property — consisting of buildings, furniture, supplies, tools; implements, etc., the distribution of office room and assignment of floor space to different departments and officers, and management of state buildings, etc., are all placed under the control of the Board of Affairs, and the letting of all state contracts and the purchasing of all state supplies needed by any of the departments or officers in the discharge of their duties is to be done through the Board of Affairs, yet this does not give the Board of Affairs control over the funds of the state, nor control over warrants issued against the funds of the state, nor does it give such board control over all claims against the state. Many claims against the state are not required to be approved by the Board of Affairs, as officers' salaries, traveling expenses, and many others not required to be approved by the Board of Affairs.

The purpose of the act in creating the Board of Affairs was to make it the purchasing agent as to all state supplies and to require all supplies, furniture and implements, etc., to be purchased through the Board of Affairs, thereby insuring better contracts and closer attention to the prices paid for supplies. All supplies are to be purchased through the Board of Affairs. This applies to every department of the state and to every officer of the state, and when in need of supplies a requisition is to be filed with the Board of Affairs, which is authorized to contract for the delivery of such supplies to the department in need of same. It does not go buy the supplies and pay for them, but merely contracts for their delivery at a certain price; then the person from whom such supplies are purchased is required to file a claim with the Board of Affairs for the price of such supplies; such claim must be filed upon the forms and in the manner and under the regulations prescribed by the Board of Affairs and must be audited and approved by the Board of Affairs, but after such claim has been approved by the Board of Affairs, then its power over that claim has ceased, and the claimant, whoever he may be, must go to the auditor and get his warrant against the state through the State Auditor. The board does not pay the claim, and has no power to pay for same, or to compel the State Auditor to issue a warrant for same but the supply company, after receiving the approval of the Board of Affairs, must then present its claim to the State Auditor for his warrant. But the fact that the Board of Affairs has the duty of purchasing supplies and fixing the price and the duty to audit the claim and duty to approve same, in order that the claim may be no greater than the price agreed to be paid, does not give it authority to say to the State Auditor when to issue a warrant.

The only difference in the law now and what it was before the Board of Affairs was created is that each department might purchase its own supplies under the former law, if it had funds appropriated with which to pay for same, while at present each department makes its requisition to the Board of Affairs and the Board of Affairs purchases all supplies and the claimant, the party from whom supplies are purchased, must now procure the approval of the Board of Affairs before it goes to the State Auditor. But we are unable to see wherein these requirements justify the contention that the auditing and approval of a claim by the Board of Affairs makes such claim ipso facto a valid claim against the state. We are unable to see wherein these requirements or wherein the authority conferred upon the Board of Affairs takes any authority away from the State Auditor. The only authority that it takes from any state officer is the authority to contract for and purchase his own supplies. But every claim for supplies, no matter whether purchased by the Board of Affairs or by whom, must be still presented to the State Auditor, examined and adjusted by him, before a warrant shall issue. Even the claim of a member of the Board of Affairs or his salary must stand upon the same footing that a claim for any other state officer's salary must stand.

Chapter 162, Sess. Laws 1917, and especially section 2 of said chapter, is cited to show that the Board of Affairs is given authority to purchase and acquire game preserves and to purchase all supplies and let all contracts pertaining to same; but this chapter gives the State Board of Affairs no further authority than the Game and Fish Commission had before such authority was transferred. The only change made is that a claim of any kind must now be approved by the Board of Affairs instead of by the Game and Fish Commission, as formerly provided. It has taken no authority away from the State Auditor, and means no more than that the Board of Affairs shall present its claim for salary or expenses, duly itemized, sworn to, and approved, the same as any other officer of the state must do before a warrant will be issued by the State Auditor. The Board of Affairs has no further authority as to the issuance of a warrant for its salary and expenses than the Attorney General, the Secretary of State, or any other department has as to the payment of its salary and expenses; all must stand upon the same footing, and the statue makes the State Auditor the state's accountant of the funds of the state and holds the auditor responsible for the proper accounting for such funds.

It is true the statute makes provision for holding the officer in control of any department responsible for the approval of invalid claims and provides penalties for their so doing, but such fact does not lessen the auditor's responsibility for issuing a warrant upon an illegal claim. Hence, we can see no merit in the contention that because article 4, chapter 75, Revised Laws 1910, has given the Board of Affairs control and supervision over all state property in buildings, office room, etc., and has made such Board of Affairs the purchasing agent of the state in the purchasing of all state supplies, and chapter 162, Sess. Laws 1915, took away the powers which the Game Commission theretofore had and gave such power to the Board of Affairs, or the fact that chapter 274, Sess. Laws 1919, made an appropriation of $10,000 for the purpose of paying the expenses of the Board of Affairs in discharging the duties conferred upon it by said chapter 162 — that these facts give the Board of Affairs any control over the action of the State Auditor in the issuance of warrants. Each department of the state has an appropriation for the purpose of paying the expenses of such department necessarily incurred in the discharge of its duties. But the Board of Affairs is given no further control over the funds appropriated for its expenses than any other department has over the fund appropriated for its expenses. The Board of Affairs does not have the approval of the traveling expenses or hotel expenses of any other department. The only character of claims of which it has the approval is for things purchased for or contracted for by the state. It is given certain definite powers with reference to purchasing all things needed by the state and with reference to contracts made on behalf of the state, but its powers in this regard are over the claimants, the persons from whom purchases have been made, or with whom contracts have been made, and not over the State Auditor. The State Auditor has the same powers with reference to the issuance of warrants that he had before the creation of the Board of Affairs and the Board of Affairs has no more authority or control over the actions of the State Auditor than any other department has, except that if the State Auditor be in need of supplies, books, stationery, stamps, desks, or supplies of any character, he must make requisition upon the Board of Affairs, the same as any other department, and the Board of Affairs purchases such supplies for the auditor, and the man from whom they are purchased must go through the same procedure with the Board of Affairs that any other claimant does for supplies purchased for any other department officer. And, with this exception, the Board of Affairs has no further control over the actions of the State Auditor than any other department officer has.

The State Auditor and every other department officer must purchase their supplies through the Board of Affairs and in the manner and form and under the regulations prescribed by the Board of Affairs and the claims for such supplies must be presented to the Board of Affairs for its auditing, examination, and approval, before the auditor is authorized to issue a warrant, but this fact does not imply that because of such approval the auditor is compelled to issue a warrant. The State Auditor is placed upon the same footing in the matter of purchasing his supplies that every other state department is placed, and the State Board of Affairs is placed upon the same footing, and upon no more advantageous footing, as to claims for its expenses, than any other department as to claims for its expenses. They must all be examined and adjusted by the auditor before a warrant will be issued, and must be examined and adjusted by the Auditor in substantial conformity with sections 8065 and 8066, supra, before the state will pledge its credit for the redemption of such warrant. It is upon the auditor's examination and adjustment that the state bases its pledge of redemption, and not upon the examination and adjustment or approval of any other department.

The Constitution makes the State Auditor an executive officer of the state, and the Legislature has made him the state's accountant of all funds of the state and imposes certain positive duties upon him with reference to issuing warrants against the state, and by failing to define the limits of his duties and to prescribe the manner of their performance he is left to his own judgment in the discharge of his duties thus imposed, and the courts will not interfere with his discretion unless it be made to appear that he has abused his discretion. By this are we not to be understood as holding that the auditor may act arbitrarily or capriciously. The law does not authorize the auditor to act capriciously or arbitrarily, nor does it contemplate that he will abuse the discretion vested in him. The law presupposes that he will not exceed his authority or abuse his discretion, but will act with fairness and in honest, good faith in the fulfillment of his duties. But in case he should act capriciously or arbitrarily, or should exceed his authority or abuse his discretion, then the law authorizes this court, in the excerise of its equity powers, to correct such abuse and grant such relief to the aggrieved party as he may be entitled to receive.

There is one other contention made with reference to his duties under section 8066, which we think is not sustained by the law, viz., the proviso at the end of section 8066, which authorizes the State Auditor to acquire additional information by swearing witnesses, etc., where he feels the need of additional information. It is contended that this proviso makes it his duty to call witnesses and examine them, and that such duty is intended to benefit and is for the benefit of the claimant. This view is not sustained by the statute. The statute says he may acquire. May acquire what? Additionalinformation. It does not say he shall acquire it for the benefit of claimant; it does not say that the claimant has authority to demand him to acquire it. It does not expressly say for whose benefit it may be acquired, but it says he may acquire additional information. There would be no need of additional information if he already had sufficient information; if he already has sufficient information to satisfy him that a claim is illegal, then the claimant is not given any authority to compel him to acquire additional information.

It appears to us that the only reasonable inference, the only reasonable construction, is that he may acquire additional information if he thinks he needs it, and is not compelled to acquire any additional information if he already has sufficient information.

Another question of law is incidentally involved which, we think, is proper to determine, to wit: The trial court held that the Board of Affairs had no jurisdiction over the letting of contracts for which these expenses were incurred and no authority for incurring the expenses involved herein. In this the trial court was in error. The statute above referred to expressly gives the jurisdiction of such matters to the Board of Affairs and provides for the payment of the expenses of the Board of Affairs in the discharge of its duties; hence, the court was in error in holding, as a matter of law, that it had no authority to incur the expenses involved herein.

To summarize the proposition involved: We hold that the State Auditor is vested with discretion with reference to issuing warrants against the state funds; that the courts cannot control such discretion; that in case he should arbitrarily refuse to issue a warrant for a claim which in all respects is valid, the court will thereupon grant relief to the claimant and direct the auditor by proper writ to issue a warrant. In such case the court does not control the discretion of the auditor, but simply in the exercise of its higher equity powers directs the auditor to execute the judgment of the court.

Courts will not assume to control the discretion of executive department officers or inferior tribunals, nor attempt to divest such officers or tribunals of the discretion given them by law; but where it is made to appear that an executive officer or inferior tribunal has acted arbitrarily and has abused its discretion, this court, in such case, by virtue of the equity powers conferred upon it by the Constitution, will grant relief to the parties aggrieved and direct such officer or inferior tribunal to carry into effect the judgment of this court, based upon the facts and circumstances in the case. Also, in an equity case, this court will reverse the judgment of the trial court where it appears to be against the clear weight of the evidence, and will render such judgment as should have been rendered by the court below. Tulsa v. Purdy, 73 Oklahoma, 174 P. 759.

This, in our opinion, is the law which governs this case. Under this pronouncement friction and conflict among the departments of state in the exercise of their respective powers and in the discharge of their respective duties may be avoided. The law does not intend that there shall be conflict. The purpose of the law is to provide a system of state government consisting of separate, co-ordinate departments, each charged with specific duties and vested with authority to discharge such duties, each department acting within its particular sphere without conflicting with the duties or authority of other departments, and yet each constituting a necessary factor in the entire system of state government. To this end the law has made adequate provision and this object attained when the provisions of the law are rightfully interpreted.

The conclusion of the court as to the facts and weight of the evidence in this case is expressed in the opinion of Mr. Justice Kane, which become the judgment of this court as to the facts, and proper mandate will thereupon be issued.

The writer hereof does not concur in the conclusions of the majority of the court as to the facts, but delivers herein the majority opinion as to the governing principles of law.

Reversed and judgment upon the facts rendered in opinion by KANE, J.

MILLER, ELTING, KENNAMER, and NICHOLSON, JJ., concur in this opinion as to law.

Reporter's Note: The opinion of Mr. Justice Kane referred to herein was never handed down, for the reason that the answer to the writ of mandamus showed there were no funds appropriated to pay the claim in question. It was a claim which the majority of the court thought should be paid, but the opinion holding that way was not handed down for the reason there were no funds.