W.H. Shanks as auditor of the state of Kentucky was invited to attend the National Convention of State Auditors which convened at Salt Lake City on August 8, 1924. Previous to that date, conceiving that attendance at the convention was official business connected with the duties of his office, he requested permission of the State Board of Sinking Fund Commissioners to attend, which request was unanimously approved by a minute regularly entered on the records of that board. In conformity therewith he attended the convention and upon his return filed claim against the state for the amount of his traveling expenses, $269.75. In the meantime the attorney general had reached the conclusion that the expenditure was not a valid claim against the state and advised against its payment, whereupon Mr. Shanks, as auditor, paid the amount of the claim to himself and requested that suit be filed to test the validity of his claim and to obtain a construction of the act under which he had proceeded. Later the attorney general brought this action in the Franklin circuit court to recover the sum so paid. Mr. Shanks filed answer setting up the character of the convention; the fact that the board of sinking fund commissioners had approved his request for permission to make the trip, and the statutory provisions upon which he relied. A demurrer was sustained to this answer, and failing to plead further judgment was rendered for the state for the amount of the claim, from which judgment this appeal is prosecuted.
Prior to the year 1920 there does not seem to have been any specific authority for the expenditure of state funds for traveling expenses out of the state on official business, but in that year the budget system was adopted and since has been substantially followed. In the Budget Act of 1924, chap. ___, sec. 4, it is provided:
*Page 235"There are hereby appropriated out of the general expenditure fund for the use of the department of auditor of public accounts of the commonwealth of Kentucky for the fiscal year ending June 30, 1925, as hereinafter set out the following sum for the following purposes: (a) for salaries and clerical hire $35,000.00; (b) for providing stamps, office supplies and necessary traveling expenses $4,000.00."
Similar provision for the payment of traveling expenses for the State Board of Agriculture appears in section 8; for the banking department in section 12; for the state tax commission in section 19; for the state inspector and examiner in section 20, and perhaps there are some others. As applying to all of the departments section 53 of the act provides:
"No officer or employe of the state or any of the departments, boards, commissions, agencies of the state government provided for in this act shall be allowed any expenses incurred on trips outside of Kentucky except on official business and then only after a request to make such trip has been filed in writing with the commissioners of the sinking fund and authority to make same has been approved by said commissioners of the sinking fund."
Appellant insists (1) that the trip in question was official business; (2) that the board of sinking fund commissioners was given exclusive discretion to determine the character and necessity of trips outside the state and the propriety of paying expenses incurred thereby.
(1) As to whether this expense was incurred on official business is a debatable question, though if it alone was being considered I would concur with the majority opinion.
(2) The expense, however, was regularly approved by the board of commissioners, and to my mind the case turns upon the effect of that action. We have seen that the legislature appropriated $4,000.00 for printing, stamps, office supplies and necessary traveling expenses of the auditor's office, thus clearly including expenditures for traveling expenses both within and without the state. Such expenditures, of course, are confined to official business, though not so stated in section 4. Perhaps it would have been difficult to have defined the nature and extent of expenses to be paid out of such funds and the legislature made no attempt to do so. It did, however, safeguard the people against the improvident use of public funds outside of the state by providing in section 53 of the act that the right to incur such expenses should be restricted to official business and be approved by the commissioners of the sinking fund, a body composed of the governor, attorney general, auditor, treasurer and secretary of state. Just what power *Page 236 did the legislature intend to confer on that body? It is suggested that under the statute the board can merely pass on the usefulness or necessity of the proposed expenditure and give or withhold its approval accordingly, but that this does not include a consideration of the question as to whether the trip is on official business, and that this questionmust be decided by some other tribunal. To my mind such a construction renders the action of the board mere child's play. For it (the board) to approve a claim, however useful, which it knew or believed not to be on official business would be an absurdity; for it to approve such claim regardless of whether or not it was to be incurred on official business would be equally illogical. Certainly it was not contemplated that an officer should procure a declaratory judgment before presenting his request to the board for its approval, and no other provision is made for a determination of that question, and unless the board has jurisdiction to determine that question its approval of such request is farcical and of no value. But the legislature was not doing a vain thing, and if the act can reasonably be given a practical construction, this should be done. When thus considered, while the act is not skillfully drawn, the legislative intent is reasonably clear. The trip on which the expenses are incurred must be on official business, presumably must be useful or necessary to the state, and must be authorized by a formal approval of the board upon written request of the officer. In thus empowering the board, composed of the highest administrative officers of the state, including the head of the legal department, to pass upon the request for the proposed trip before the expenses are incurred and to reject such request, or by its approval to authorize such trip the legislature must have meant that approval of the request and authority to make the trip upon the part of the board would authorize the payment of the necessary traveling expenses incurred on the trip and for the board to consider all questions affecting its judgment in the matter. The request is approved as a whole. To do this each of its constituent parts must meet the sanction of the board. To give or withhold its sanction the board must consider the entire matter. Also such consideration requires discretion; clearly it was intended that this discretion should be exercised by the board, and, if not abused, its action should be upheld. When power and discretion to determine a certain matter is committed to a public board by *Page 237 the legislature the courts will not interfere with the exercise of that power unless the board has abused its discretion or exceeded its jurisdiction. This is so well settled as not to require citation of authority. Certainly in this case the board acted within its jurisdiction in determining both the usefulness and the official character of the trip. Certainly the question was debatable. Even this court is divided upon it, the chief justice and one associate justice holding that the business was "official," hence it cannot be said that in so holding the board acted arbitrarily or abused its discretion, and its action should be upheld.
As I view it, the majority opinion ignores all legal inferences to be drawn from the language of the act, and erroneously assumes that, because jurisdiction to pass upon the question of "official business" is not in express terms conferred upon the board, such jurisdiction cannot arise by necessary implication.
Again, its whole argument seems to be directed against the conclusiveness (?) of the board's action. No one contends that such action is conclusive in all cases or that the validity of a legislative act cannot be inquired into by the court. Aside from appeals from fiscal courts, any number of cases may be found in which administrative boards and municipal bodies have made an illegal contract or exceeded their jurisdiction or acted arbitrarily or abused their discretion in which the courts have interfered. Such was the case in Snider v. Beauchamp, cited and relied upon as authority in the majority opinion, but in that case the court quoted with approval from Logan County v. Board of Education, 138 Ky. 98, thus: " 'That the statute was intended to and does invest the board of education with a large discretion in the expenditure of the funds levied for the benefit of the schools and so long as this jurisdiction is not abused or is reasonably exercised the courts will not interfere with it.' "
And continues: "If this jurisdiction shall be abused or should not be reasonably exercised either in the character of the expense or in the mode or method by which they should be levied the courts will interfere upon proper application." It further concluded that the board of education of Spencer county had abused its discretion and found accordingly. *Page 238
Lake County v. Nuenfeldt, 136 N.E. 580, relied upon in the opinion is not in point on this question. There the statute authorized the state superintendent to make suggestions to the keepers of the county poor asylums. Acting under such suggestions Nuenfeldt attended a meeting of a charity organization and the county paid his expenses. There was no statute authorizing the payment of such expenses, and the court held they should not have been allowed. That case presented an entirely different state of facts from this one. Here the statute makes a definite and fixed appropriation to a state department for certain enumerated expenses. One item relates to traveling expenses without the state on official business, which can be incurred only upon request to the administrative board and when approved by it in writing, necessarily implying that such approval embraces both the character and the usefulness of the proposed trip. As I view these cases, neither militates against the views expressed supra. The opinion cites none other and I have been able to find none, though of course the cases may differ as to what constitutes an abuse of discretion, or acting without jurisdiction.
For the reasons indicated I respectfully dissent.