Opinion
No. 2236
April 28, 1942
STATE BUDGET SYSTEM — APPROPRIATIONS — ATTORNEY FOR SALES TAX DIVISION — MODE OF COMPENSATING — ATTORNEY GENERAL — MANDAMUS — STATUTORY CONSTRUCTION.
1. The budget system adopted by the Wyoming Legislature is a comprehensive law designed to provide for the appropriation and expenditure of money in accordance with budget estimates (Rev. St. 1931, § 16-101 et seq.). 2. Where statute giving the Board of State Supplies supervisory authority over state employees was enacted prior to statute making it unlawful to expend any appropriation except that in accordance with the estimate unless revised with the approval of Governor, the later enactment controlled the manner of spending money appropriated by the Legislature, and hence approval of attorney's employment by Sales Tax Division of State Board of Equalization by the Board of State supplies could not require state auditor to order payment of vouchers for such attorney's salary unless authority was found in appropriation act itself or a revision or amendment of the budget (Rev. St. 1931, §§ 16-119, 103-309; Const. art. 3, § 35; art. 16, § 7). 3. The sufficiency of a petition to compel the state auditor to approve for payment two warrants for relator's compensation out of a specified fund was required to be determined in the light of all laws affecting relator's right to collect the claim against the state, and hence relator was not entitled to receive compensation on the ground that the auditor had issued warrants for payment of his salary for the preceding ten months (Const. art. 3, § 35; art. 16, § 7). 4. Where the Sales Tax Division of the State Board of Equalization submitted a budget request for employment of an attorney and the Legislature did not act upon the request, and the subsequent budget contained no such request nor was an appropriation for attorney's fees made, the Legislature intended that the board be represented by the attorney general and county attorneys as provided by statute (Laws 1937, c. 102, § 13). 5. Under statute making it the duty of the attorney general and any county attorney to represent the Sales Tax Division of the State Board of Equalization with respect to legal matters arising from administration of the Selective Sales Tax Act, the duty of representing the state board and the Sales Tax Division was placed upon the attorney general and the county attorneys through the state (Laws 1937, c. 102, § 13). 6. Where no provision was made in the budget and no appropriation made to pay an attorney for the Sales Tax Division of the State Board of Equalization and a statute required the attorney general and county attorneys to represent the division, an attorney not connected with the attorney general's office performing services for the division was not entitled to compensation on the ground that the division could employ and be represented by such attorneys in the absence of a statute specifically providing that no other attorney may represent the division (Laws 1937, c. 102, § 13). 7. Where statute provided that the special contingent fund for the attorney general for pending litigation may be expended only with the consent of the Governor and no such consent had been obtained, an attorney not connected with the attorney general's office employed by the Sales Tax Division of the State Board of Equalization for which no specific appropriation for such purpose had been provided was not entitled to compensation from the attorney general's special contingent (Laws 1941, c. 132, § 10).
For the demurrer there was a brief and an oral argument by J.A. Greenwood of Cheyenne.
The duties of the State Auditor are prescribed by law. Secs. 109-301 to 313, R.S. 1931. He may reject claims, for which claimants have a remedy. State ex rel. Burdick, 3 Wyo. 587. Relator's petition does not allege an abuse of discretion or unlawful action by defendant. An erroneous custom cannot be legalized by long observance. State v. Jack, 52 Wyo. 173. Official contingent appropriations can be used only for the purpose intended by the legislature. Relator's claim does not come within the contingent appropriation made for the Sales Tax Division of the Board of Equalization. Section 53, Chapter 132, Laws 1941; Utah Construction Company v. Commissioners, 45 Wyo. 403; State v. Commissioners, 51 Wyo. 181. Relator is neither an official nor an employee of the state as shown by his petition. His claim is based upon a part-time arrangement with the Board of Equalization. It does not come within the statute authorizing the Board of State Supplies to fix salaries of employees. Section 103-309, R.S. It is the duty of the Attorney General to represent the Board of Equalization in all legal matters. Chapter 102, Laws 1937 amending Section 13, Chapter 74, Laws 1935; State v. Yellowstone Park Company (Wyo.) 121 P.2d 170. The Board of Equalization is without statutory authority to employ a special attorney for the Sales Tax Division. Chapter 132, Laws 1941. The duties and powers of the Board of Equalization are prescribed by Section 115-511, R.S. 1931. Relator has no standing before any tribunal as attorney for any department of the state government. The petition shows that relator was employed to work forenoons only. This is in violation of the statute. Section 115-509, R.S. The petition does not show the capacity in which relator is employed. State v. Burdick, 3 Wyo. 587. The petition fails to show relator's right to a warrant drawn against the Sales Tax contingent of 1941, nor a duty on the part of defendant to issue such warrant. Relator cannot be employed legally on a part-time basis. He is not an officer or employee with a salary fixed by the Constitution or laws of the state. Henderson v. Burdick, 4 Wyo. 272. There is no appropriation from which the Board of Equalization could legally approve payment of relator's claim; no specific amount designated by law to be paid to him, nor time fixed for such payment, and no fund out of which the voucher could be paid. This is a good defense to a petition for mandamus. Mattox v. Board of Education, 5 A.L.R. 568. Relator's claim is not itemized. Article XVI, Section 7, Constitution. State v. Auditor, 4 Wyo. 272. The designation of appropriations to which vouchers should be charged, is a discretion not to be interfered with by a court. State v. Boyle, 190 P. 914. The situation differs from the facts in Appell v. Board, 9 Wyo. 187. The petition does not allege the absence of an adequate legal remedy. Section 89-450, R.S. State v. Board, 50 Wyo. 181. A public body is without authority to employ attorneys unless authorized by statute. Attorney General Opinions, 1932-1940, Page 737. The audit of a claim involves the exercise of judgment and discretion. State v. Patterson, 47 Wyo. 416; Sawyer v. Mayhew, 71 N.W. 141. And courts do not interfere unless the action transcends authority. The petition does not comply with Rule 28 of this court by showing a reason for bringing an original action in this court. The questions presented by the petition cannot be determined without the introduction of evidence.
For the relator there was a brief and an oral argument by A.D. Walton.
Relator was employed by the Sales Tax Division of the State Board of Equalization as an attorney for said Board at a fixed salary. His employment was approved by the Board of State Supplies, the employment commencing March 10, 1941. His salary was paid each month after March 10, 1941, to and including the month of December, 1941, by warrants issued by defendant against "Sales Tax Division Contingent, 1941" account, when presented for payment. Relator has continued to serve as counsel for the Sales Tax Division up to and including the time of the commencement of this action. Defendant has refused to issue warrants against the Sales Tax Contingent appropriation as heretofore, and on or about February 4, 1942, drew warrants in favor of relator for salary and expenses as against "Attorney General's Special Contingent, 1941." Payment was refused on said warrants upon the advice of the Attorney General. The relator was legally employed by the Sales Tax Division. Section 115-508, R.S. 1931. The Board of State Supplies had legal authority to approve the employment of relator. Section 103-309, R.S. 1931; Chapter 134, Laws 1933. Defendant apparently recognizes the legality of relator's employment but seeks to compensate him from the Attorney General's Special Contingent fund, which cannot be invaded without the approval of the Governor. In the absence of a statute to the contrary, Boards and Departments may employ an attorney not connected with the Attorney General's office. 2 R.C.L. 916; 7 C.J.S. 1229; Mollohan v. Cavender (W.Va.) 83 S.E. 78, 499; State v. Riley (Cal.) 69 P.2d 985; Topeka v. Ritchie (Kan.) 184 P. 728; Follmer v. State (Ann. Cas.) 1914 D. 156; State v. Davidson (N.M.) 275 P. 373. The petition shows that defendant issued warrants against the Sales Tax Contingent, 1941, for the months of May to December, inclusive, 1941. Defendant for many years as auditor has issued warrants against contingent funds of various state departments to compensate attorneys employed by them. Article XVI, Section 7 of the Constitution, stressed by defendant in his brief, contains no distinction as between officials' salaries fixed by law and other salaries of state employees. Defendant's objection that relator's claim was not itemized was not observed when he drew warrants against the Attorney General's Special Contingent, 1941 fund, in payment of the same. An itemized statement is unnecessary. Bank v. Goodwin, 81 S.C. 480; Lovell v. Drainage District, 159 Ill. 196. The auditing of claims against the state is not a judicial but is an executive function. Sections 109-302, R.S. 1931; State v. Burdick, 3 Wyo. 588. There was and is a Sales Tax Contingent Fund out of which relator should be paid. Chapter 132, Laws 1941, Section 10; Baldwin v. Roby, 54 Wyo. 439. Equitable Life Assurance v. Thulemeyer, 49 Wyo. 63. Relator was employed, performed services in good faith for the Sales Tax Division, and should be paid.
Before Kimball, Justice; Tidball and Ilsley, District Judges.
This is an original proceeding for a writ of mandamus. Briefly summarized, this petition recites that the relator, an attorney at law, was employed since March 10, 1941, by the Sales Tax Division of the State Board of Equalization, with the approval of the Board of State Supplies, at a salary of $100 per month for forenoons and $5.00 for each additional half-day, plus traveling expenses, and that he has been regularly paid to and including December, 1941, with the approval of the State Auditor, who is defendant herein. That the defendant refused to approve relator's $100 voucher for January, 1942, salary, and an expense voucher for auto travel in November, 1941, for $6.12, for the reason that relator's services were of a legal nature in his capacity as a lawyer, which placed the Board, the Attorney General and the Auditor's office "squarely up against" Section 13, Chapter 102, of the 1937 Session Laws:
"* * * It shall be the duty of the attorney general and any county attorney to represent the Board in all legal matters relating to the enforcement, construction, application and administration of this Act, and in any litigation which may be instituted by the Board and in which it may become involved, upon the order and under the direction of the Board."
The defendant auditor states that if all of relator's services were legal, the claim would not be a charge against the Sales Tax contingent, but more properly payable from one of the several funds coming under the jurisdiction of the Attorney General; that care should be taken in itemizing the various services rendered by relator, and that services other than legal might be properly paid out of the Sales Tax Contingent for 1941.
The Attorney General complied with a request for an opinion by the Chairman of the Board of Equalization, in which he stated that no further itemization was necessary inasmuch as the Board of State Supplies had authorized the employment of relator as an attorney for the Sales Tax Division. The defendant State Auditor, on February, 1942, approved the voucher, and drew two warrants — one for $100 and one for $6.12 — both payable to relator upon the "Attorney General's special contingent for 1941," (Sec. 10, ch. 132, Sess. Laws 1941) without the approval of the Governor or the Attorney General. Whereupon, the bank and the State Treasurer — being advised that the warrants were unlawfully drawn on the wrong fund — refused to pay the same and thereupon the warrants were returned to the defendant with the request that they be drawn upon the "Sales Tax Contingent (1941) fund," which defendant refused to do.
The petition alleges that the defendant contends that, as State Auditor, it is his duty to determine the fund upon which warrants may be legally drawn and unless decided to the contrary by this Court, the defendant will be drawing warrants in payment of salaries of State employees promiscuously out of any fund he desires, contrary to law; that there has been sufficient funds at all times in the Sales Tax Contingent (1941) fund with which to pay the warrants of relator; that relator is still employed as an attorney and has not been paid his salary; that defendant's refusal to audit and draw warrants upon this fund is illegal, unlawful and arbitrary; and that relator has no plain, adequate remedy in the ordinary course of law. The petition prays for a writ of mandamus directing defendant to approve for payment the two warrants out of the Sales Tax Contingent (1941) fund, Sec. 53, ch. 132, Sess. Laws, 1941.
This Court issued an alternative writ of mandamus, the defendant appeared by his counsel and interposed a demurrer to the effect that the petition does not state facts sufficient to constitute a cause of action in favor of relator and against the defendant.
This situation requires an appraisal of the law as set forth in the various statutes with respect to the duties of the defendant as State Auditor. It must be remembered that by an act of 1919, and supplementary act of 1931, Wyoming adopted the Budget system, which is a comprehensive law designed to provide for the appropriation and expenditure of money in accordance with budget estimates. It is contained in Chapter 16, of the Wyoming Revised Statutes, 1931.
The relator contends that the State Board of Equalization, of which the Sales Tax Division is a part, is given authority to "* * * appoint such experts, assistants, clerks and stenographers as may be necessary * * *" under Section 115-508, Wyo. R.S. 1931. That the Board of State Supplies approved the employment of relator and notified the defendant of the same under Section 103-309, Wyo. R.S. 1931:
"The board of state supplies shall determine the character and number of employees in all state offices, departments, boards and institutions located at the capitol and shall fix the salaries or wages of such employes, and may so far as practicable regulate the conditions of employment with a view to securing as much uniformity as practicable."
Attention is also directed to Chapter 134, Session Laws, 1933, which defines the duty of the Board of State Supplies. However, the Budget law is designed to govern the expenditure of moneys appropriated. Section 103-309, Wyo. R.S. 1931, was enacted in 1919. Section 9, Chapter 132 of the Session Laws of Wyoming, 1931, (R.S. 1931, Sec. 16-119) provides that:
"After the approval of any appropriation by the Legislature, * * * it shall be unlawful to expend any such appropriation or any part thereof except in accordance with such estimate or the specific appropriation thereunder unless the same be revised with the approval of the Governor in writing."
Certainly this later provision of law controls the manner of spending the money appropriated by the Legislature. The approval of relator's employment by the Board of State Supplies under section 103-309, supra, could not require defendant to order payment of the vouchers in question unless authority therefor can be found in the appropriation act itself, or in the budget estimates on which the act is based, or in some lawful revision or amendment of the budget estimates. See Sec. 60, ch. 132, Sess. Laws, 1941, quoted below.
It is further contended that the defendant, having issued warrants for the payment of the salary of relator for ten months, it is therefore well established that the relator is lawfully hired and is entitled to receive his pay. As was stated in Utah Construction Co. v. Commission, 45 Wyo. 403, 418, 19 P.2d 951, 953:
"The sufficiency of the petition must be determined in the light of all laws affecting the right of plaintiff as one seeking to collect a claim against the State."
It is the fundamental law that "moneys shall be paid out of the treasury only on appropriations made by the Legislature and in no case otherwise than upon warrant drawn by the proper officer in pursuance of law." Article 3, Section 35, Wyoming Constitution. It is provided in Section 7, Article 16: "No money shall be paid out of the state treasury except upon appropriation by law on warrant by the proper officer." See State v. Underwood, 54 Wyo. 1, 34, 86 P.2d 707, 717; McDougall v. Land Commissioners, 48 Wyo. 493, 502, 49 P.2d 663, 666.
We have searched the 1941-1942 Official Wyoming State Budget, submitted to the 26th State Legislature by the Governor, and fail to find any request in the detail of estimate requirements for attorney fees or legal assistance. Five Hundred Dollars for extra assistance is requested, but if relator makes claim upon this, it has long since been used up by warrants previously paid to him.
The Contingent appropriated by the Legislature for the Sales Tax Division amounted to $140,000. Sec. 53, Ch. 132, Sess. Laws, 1941. This Act does not make provision for attorney or legal fees or services.
A request was made in the official Wyoming State Budget for 1939-1941, submitted to the 25th Legislature by the Governor for the Sales Tax Division of the State Board of Equalization in this language:
"The Board also feels that employment of an attorney to handle all legal matters in connection with the administration of the Sales and Use Tax Acts would result in a more efficient handling of the Division and is something to which consideration should be given."
The Legislature did not act upon this request and we can only conclude that it intended that the last paragraph of Section 13, Chapter 102, Session Laws, 1937, known as the "Selective Sales Tax Act," should govern, which provides:
"It shall be the duty of the Attorney General and any County Attorney to represent the Board in all legal matters relating to the enforcement, construction, application and administration of this Act, and in any litigation which may be instituted by the Board and in which it may become involved, upon the order and under the direction of the Board."
It seems to us that by this provision of law, the duty of representing the State Board of Equalization, including the Sales Tax Division, in all legal matters is placed upon the Attorney General and the County Attorneys through the state. At least, until provision is made by appropriation or otherwise for the payment of those engaged in legal activities.
Argument is made that in the absence of a statute specifically stating that no other attorney may represent a board or department; that such board or department may employ and be represented by an attorney not connected with the Attorney General's office. Counsel cite the general principles of law to support this contention and place great reliance on State v. Davidson, 33 N. Mex. 664, 275 P. 373. However well founded the principles there stated may be in New Mexico and without analyzing that case in detail, we have a much different situation in the instant case. Here we are confronted with the fact that there is a provision of law requiring the Attorney General and County Attorneys throughout the state to represent the Board in all legal matters relating to the enforcement of the provisions of the Selective Sales Tax Act. Furthermore, no provision was made in the Budget, and no appropriation made available out of which an attorney for the Sales Tax Division could be paid. It is true that Section 60, Ch. 132, Sess. Laws, 1941, provides:
"In order that there may be a reasonable degree of flexibility in the expenditures of appropriations authorized by this Act, any officer, department, board or state institution, including the University of Wyoming, may, during the biennial period for which such appropriation is made, apply in writing to the Assistant Budget Officer for an amended classification of the purposes to (for) which such appropriation may be expended. If the Assistant Budget Officer approves the application, he shall endorse the same and transmit it to the Governor, who shall endorse thereon his approval or disapproval, and return the same to the Assistant Budget Officer. * * *"
It may be that the Budget officers, by procedure under this section, could authorize payment of relator's salary and expenses by making an appropriate "amended classification of the purposes" for which an appropriation has been made. This method has not been pursued, and the question is not before us.
With respect to the defendant's contention that the warrants should be paid out of the special contingent of the Attorney General, we cannot agree. The General Appropriation Act contained in Chapter 132, Sess. Laws, 1941, under Section 10, does provide:
"Special Contingent, Six Thousand Dollars ($6,000). For pending litigation, to be expended only with the consent and approval of the Governor. (Approved for $5,500)."
However, "no consent and approval by the Governor" for such payment has been obtained and the defendant, without it, would have no authority to approve and issue warrants to the relator in payment of his services from that fund.
For the reasons stated, the demurrer of defendant will be sustained, the alternative writ quashed, and the case dismissed.
KIMBALL, J., and TIDBALL, District J., concur.