'Che Conservative * n
<
state treasury that the claim must be
examined , audited and allowed by the
auditor and approved by the secretary
of state ; and before Mr. Balch , trustee
for The American Chicory Company ,
shall receive a warrant on the treasury
of the state for $17,840.23 he should , in
iuy judgment , establish to the satisfac
tion of the auditor not only the consti
tutionality of the act under which the
bounty is sought to be given but that
that part of the act pertaining to chic
ory has been in all respects complied
with by The American Chicory Com
pany.
Section 6 of that act provides that
"No money shall be paid upon chicory
not containing at least ninety-nine (99) ( )
per cent of pure chicory , nor upon chic
ory produced from beets from which as
much as $10.50 per ton shall not have
been paid to the producer. "
The act further provides that "the
quantity and quality of chicory upon
which money is to be paid shall be de
termined by the secretary of state ,
with whom all claimants shall from
time to time file verified statements
showing the quantity and quality of
chicory manufactured by them , the
price paid the producer of beets , and
upon which said money is claimed. "
This last clause certainly does not ex
onerate the auditor from making an ex
amination and adjustment of all claims
presented to him for allowance , for the
constitutional section that we have
cited , viz : Sec. 9 , Art. 9 , says that the
legislature shah1 provide by law that all
claims upon the treasury shall be exam
ined and adjusted by the auditor and
approved by the secretary of state. And
any provision made in conflict with this
plain requirement of the constitution is
of no force whatever.
Section 8 of the chicory act provides
that "when any claim arising under
this act is filed , verified and approved
by the secretary of state , as heroin pro
vided , he shall certify the same to the
auditor of the state , who shall draw a
warrant upon the state treasurer for the
amount due thereon , payable to the
party or parties to whom said sum or
suras are duo. "
This is clearly an attempt upon the
part of the legislature to overturn Sec
tion 9 , Article 9 , of the constitution and
to substitute the secretary of state for
the auditor of state in so far as examin
ing and adjusting of the claims are con
cerned. "Wo think there is only one
way by which these chicory gentlemen
can approach the treasury , if at all , and
that is by the methods pointed out by
the provision of law that we have
quoted made in pursuance of Section 9 ,
Article 9 of the constitution. Section 6
supra says : "All persons having claims
against the state shall present the same
with the evidence and support thereol
to the auditor to be audited , settled and
allowed within two years after such
claim shall accrue , " otc. When ovidouce
is thus presented to the auditor ho may
then inquire why it was that on Feb
ruary 20,1899 , The American Chicory Co.
filed its sworn claim with the auditor
for $19,090.12 and then in April , 1899 ,
The American Chicory Company filed
another and a different claim with the
auditor for $17,840.23.
It is respectfully suggested that so far
as proofs before the auditor are con
cerned there is no legal evidence what
ever that any chicory has over been
manufactured in the state of Nebraska ,
much less that it was 99 % pure chicory
or that it was produced from beets for
which the American Chicory Company
paid as much as $10.50 per ton to the
raisers thereof. But it may be said that
since the legislature has made a specific
appropriation for the above amount that
the auditor has only a ministerial act to
perform , .simply to draw his warrant.
State vs. Babcock , 22 Neb. , 38 , wo think
sheds a flood of light upon this import
ant question.
"The legislature of 1883 passed an act
appropriating $6,824.14 to pay the ex
penses incurred in the trial of I. P. Olive
and others for murder , which act named
the persons and the amount of money
each should receive , and authorized the
auditor to draw a warrant for the several
amounts due the parties named in the
act. The relater applied for a man
damus to compel the auditor to audit
his claim and to draw a warrant upon
the treasury for the same. The court
denied the writ. It wns insisted in that
case that the duties of the auditor were
ministerial , and that ho had no discre
tion in the premises. The court , after
quoting section 9 of article 9 of the con
stitution says : 'This language clearly
implies a limitation upon the power of
the legislature in the matter of auditing
claims against the state. The provision
is imperative. The legislature shall pro
vide that all claims xipon the treasury
shall be examined and adjusted by the
auditor and approved by the secretary
of state , before any warrant shall be
drawn or the money paid. Those officers
are , by the fundamental law of the state ,
made the examining board through
whose hands all claims must pass , and
it is not within the power of the legisla
ture to change this tribunal. It cannot
review the decision of these officers , for
the section clearly points out the re
viewing court. The party aggrieved
may appeal to the district court. The
fact that the appropriation is specific can
have no weight whatever , for section 22
of article 3 of the constitution provides
that no money shall bo drawn from
the treasury except in pursuance of a
specific appropriation made by law , etc.
All appropriations of money from the
treasury are specific , and all claims upon
the treasury shah1 be examined and ad
justed by the auditor , ' etc. There is no
distinction in appropriations. It is true
I that in the section (22 ( , art. 8) ) above re-
ferred to it is provided that no allowance
shall bo made for the incidental expenses & v-
of any state officer except the same be '
made by general appropriation , etc. , but -
his provision can in no way change the
fact that each appropriation contained
n the general appropriation bill must be
a specific appropriation for the purposes
of offices named , and even then an ac-
ount must be rendered 'specifying each
item. ' Nothing could be more specific
than such an appropriation. No war
rant can be drawn except in pursuance
of an appropriation , but the auditor may
examine and adjust claims in the ab
sence of such action by the legislature.
While it is the duty of the legislature to
see that no appropriations are made ex
cept for meritorious claims , yet such is
bhe character of the safeguards thrown
around the state treasury that such appropriation -
propriation is by no means a final ad
justment or auditing of the claim. It
simply places so much of the funds in a
position to bo used by the auditor and
iecretary when the claim is examined
and adjusted by the auditor , and his ac
tion is approved by the secretary.
While the legislature may set apart
money to pay a claim , it cannot pay it
out , nor order it to be done , except in
the manner provided by law. It has no
jurisdiction to audit claims , and it is
powerless to apply the money thereon
without the quasi-judicial concurrence
of the officers named. If money is appro
priated by that body to pay a claim ,
such action is not an adjudication upon
its validity to such an extent as to relieve
lievo the auditor and secretary from re
sponsibility , for their duties remain as
fixed by the constitution. This con
struction of the constitution has been
adopted by the legislature as well as by
the supreme court in its former decis-
> ns. "
The above decision was cited with approval -
proval and followed in State vs. Moore ,
37 Nob. , 507.
If these decisions are of any force as
law in this state , then the auditor as
well as the secretary of state has a re
sponsibility resting upon him when
claims of this character are presented
for his consideration. Ho sits as a quasi-
judicial officer to hear and weigh the
evidence and to exercise his judgment
and discretion in the premises , and from
his judgment an appeal lies to the dis
trict court.
As one in common with many others
interested in preventing the treasury
from being looted in the manner pro
posed , I would respectfully ask your at
tention to the above suggestions , and if
they meet with your views I trust that
you will not draw your warrant in this
case upon the treasury , or mail it as re
quested to do , until you are ordered so
to do by the proper authority.
With respect and consideration , I re
main , Very respectfully ,
A. J. SAWYEK.
