State ex rel. Crawford v. Hastings

By the Court,

Dixon, C. J.

The position contended for by the respondent’s counsel, that the act of May 17th, 1858, providing for the appointment and 'prescribing the duties of a Comptroller, does not invest that officer with power to supervise and control the action of the Secretary of State as auditor, seems to us wholly untenable. It cannot be maintained by any fair construction of the act. The intention of the legislature to clothe him with authority equal to that exercised by the Secretary on all matters pertaining to the indebtedness of the State and claims against it, is manifest from the language used in the second and fifth sections. The second section provides that "the Comptroller shall examine and pass upon all claims and accounts audited by the Secretary of State, and if he shall find the same'properly verified or proved, and authorized by law to be audited, he shall certify that fact upon such claim or account.” By the fifth section it is enacted that “ he shall countersign all warrants drawn by the Secretary of State upon the State Treasurer, which shall be authorized by law, and no warrant shall be paid by the State Treasurer unless the same shall be countersigned by him,” &c. The intention to confer upon him the same power possessed by the Secretary in his capacity of auditor, to subject finally to his judgment and determination, all questions touching claims and accounts against the state, as well as to their substance, validity and existence, as to the form in which they are presented and verified, and to give him authority to veto and render inoperative all acts of that officer, whether the same were legally and properly done or not, is so manifest from the foregoing provisions, that comment is deemed unnecessary.

Section two or Art. VI, of the constitution, prescribes in general terms, the duties of the Secretary of State, and among other things, declares that “ he shall be ex officio auditor.” An auditor may, in general, be defined to be a person appointed to settle and adjust accounts, and state or certify the results. In a more restricted sense, he may be said to be an officer whose duty is to examine and verify the accounts of persons entrusted with the receipt and disbursement of public moneys. Bouvier’s Law Die., title “ Auditor $” Burrill’s id., same title. As used in our constitution it signifies an officer whose business is to examine and certify accounts and claims against the state, and to keep an account between the state and its treasurer. Since the ratification of that instrument such has been the commonly accepted and uniform legislative interpretation of the word. Immediately after the formation of the state government, the legislature, by act, recognized and specifically prescribed the manner in which the powers and duties of the Secretary, as auditor, should, in both these respects, be exercised and performed. Chapter 9, R. S., 1849, sec. 19 to 25, inclusive. An enumeration of those powers and duties as there regulated, are unnecessary. With the exception of some enlargements, made necessary by subsequent legislation and the formation of new departments, they remain the same to this day. Chap. 10, R. S,, 1858, secs. 27 to 37 inclusive. Even by the act in question, no direct attempt was made to impair or modify them. All accounts and demands against the state are in the first instance to be audited by him in the usual manner. But after they are so audited, it is made the duty of this new officer, created for that purpose, to review and correct them; and if in any respect he deems them illegal or improper, he is empowered to set them aside and annul his action. The act taken altogether looks like a studied effort to attain indirectly what it was evident to the framers, could not be accomplished directly. The result is, that we have two auditors instead of one, both of whom must act in succession, before any business can be transacted. The question arises whether, under the foregoing provision of the constitution, the legislature have the power to create a second auditor or officer authorized to perform the same duties, whose concurrence is necessary before the acts of the constitutional auditor shall take effect. We think they have not, and that the functions of that officer cannot, in whole or in part, be transferred to, or be exercised concurrently, or otherwise, by any other person or officer. It falls directly within the rule that the express mention of one thing implies the exclusion of another. Expressio unius est exclusio alterius.

This rule applies as forcibly to the construction of written constitutions as other instruments. And if its observance ought in any degree to depend upon the character or importance of the instrument under consideration, then no other cases demand so rigid an adherence to it. A constitution being the paramount law of a state designed to separate the powers of government and to define their extent and limit their exercise by the several departments, as well as to secure and protect private rights, no other instrument is of equal significance. It has been very properly defined to be a legislative act of the people themselves in their sovereign capacity; and when the people have declared by it that certain powers shall be possessed and duties performed by a particular officer or department, their exercise and discharge by any other officer or department, are forbidden by a necessary and unavoidable implication. Every positive delegation of power to one officer or department, implies a negation of its exercise by any other officer, department or person. If it did not, the whole constitutional fabric might be undermined and destroyed. This result could be as effectually accomplished by the creation of new officers and departments exercising the same power and jurisdiction, as by the direct and formal abrogation of those now existing. And, although the exercise of this power by the legislature, is nowhere expressly prohibited, nevertheless they cannot do so. The people having in their sovereign capacity exerted the power and determined who shall be their auditor, there is nothing left for the legislature to act upon. This principle or rule of construing constitutions, has been often laid down and acted upon by courts. It is fully sustained by the following cases recently decided by the court of appeals of New York. Barto vs. Himrod, 4 Seld., 483; Sill vs. The Village of Corning, 15 N. Y., 297; People vs. Draper, id., 532.

In this last case the court',- after observing that plenary power in the legislature, for all the purposes of civil government, is the rule, and a prohibition to exercise a particular power an exception, and that the constitution contains but few positive restraints upon the legislative powers, say: “ But the affirmative prescriptions, and the general arrangement of the constitution, are far more fruitful of restraints upon the legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The form of the government; the grant of legislative powers itself; the organization of executive authority; the erection of the principal courts of justice, create implied limitations upon the law making authority, as strong as though a negation was expressed in each instance.” This rule of construction extends to every part of the instrument, and if a violation of it is allowed in the case of the auditor, it is difficult to see why it should not be in the case of any other officer or department. Thus, the legislature might with equal propriety create new courts of justice, usurping and exercising the same power and jurisdiction as those established by the people, and a new executive, to correct the mistakes and control the action of the one chosen by them. It seems to us clear, that the Iegis-lature could do neither, and that so much of the act under consideration as attempts to transfer to the so-called comptroller the functions of auditor, and to' clothe him with authority to control or reverse the acts of that officer, is unconstitutional and void.

These remarks apply with equal force to the practice of permitting the deputy or assistant secretary of state to discharge the duties of auditor. An examination of the statute regulating them, and a moment’s reflection, will show that it is an office of great trust and responsibility, the importance of which cannot easily he overestimated. Vast interests are committed to his keeping. In one sense, the entire moneys of the state are under his control. None can he paid out, no disbursement made, without his sanction. All claims and demands against the state must be submitted to his decision. In many respects, his acts are judicial in their nature, and depend upon the exercise of a sound judgment. They are also, in many respects, as we shall presently see, final and conclusive. We are therefore of opinion that it is a personal trust and confidence reposed in him, which cannot be delegated to or exercised by another. It would be unreasonable to suppose that the people, after having entrusted to him the management of such weighty affairs, and provided that they should have a direct voice in choosing him, intended that he might transfer it to any person whomsoever. The relator’s certificate is therefore irregular, and payment thereof by the treasurer was for that reason properly refused.

Another point raised and discussed on the argument of this case was as to the constitutionality of the act of 1854, entitled “ an act concerning the terms of office of judges of the several courts of this state.” Chapter 41, General Laws, 1854. At the argument no question was made upon the construction of the act itself. It was conceded, on both sides, that the legislature intended to change the time of the commencement of the terms of office of the justices of this court, if they had the power so to do; which it was insisted by respondent’s counsel they had not. This was the question argued. Upon this question it was understood that this court had heretofore, on different occasions, resolved, in relation to the time when the justices elected since the passage of that act should take their seats, that the act was constitutional. With these resolutions I was not inclined to disagree, but to regard them as decisive. From this, Mr. Justice Paine dissented. Accordingly, in the statement of the points decided, which, to meet the request of the parties that a decision might be made at once, and in advance of a written opinion, was hastily penned and filed, immediately after the case was submitted, we held, that the act was constitutional.* Since that time, however, I have examined the act more fully, and have concluded that the legislature did not intend to change the terms of office of the justices of this court. This conclusion renders it unnecessary for me to express any opinion upon its constitutionality. This question is fully discussed by Mr. Justice Paine, in his opinion dissenting from the statement so prepared, before this was written, and I wish to say no more upon it, than that I fully concur in the views taken by him. This may perhaps be. regarded as a singular instance of the advantage of having a dissenting opinion prepared in advance of that of a majority of the court.

Another question much discussed on the argument, was as to the effect to b.e given to the decisions and certificates of the secretary of state, as auditor. This question, owing to the irregularity of the certificate issued, is not, strictly speaking, before us. Yet, as it may be said to be fairly raised, in the case of the State ex rel. Andrew Proudfit, against the same respondent, which was argued and submitted at the same time with the present, and as it is intended that this opinion shall cover the main points of both cases, it may not be improper to discuss it here. On the part of the relator it was insisted that the secretary of state, as auditor, was the general agent oí the government, empowered to determine all claims and demands upon the treasury, and that when he has done so, and has drawn his warrant upon the treasurer, it is conclusive upon the state, as his principal, and upon every other officer, and that in such case the treasurer has no right to refuse payment. The first part of this proposition may be very true. It is said in Commonwealth vs. Fowler, 10 Mass., 290, that “the several departments of the government, the legislative, the executive and the judicial, are the agents of the people, in their respective spheres.”

And in respect to the auditor, to whom there is a delegation of authority to do all acts connected with accounts and claims against the state, and to certify them to the treasurer for payment, it may be said that he is a general agent. But it by no means follows therefrom, that all his acts are conclusive upon the state. There is a broad distinction in this respect between the acts of general agents of the public and those of general agents of private individuals or corporations. Whilst the latter may, and oftentimes do, bind their principles, when acting beyond the scope of their authority or instructions, yet the former never can. In the case of the latter, it is enough that the agent be apparently clothed with authority to do the act, and that third persons deal with him innocently; then, although he violates the private instructions and directions of his principal, yet he will be bound. Good faith requires this, for he has held him out to the public as. competent to do the acts, and to bind him thereby. But it is not so with public agents of the character under consideration. Their warrant of attorney is a part of the law of the land, of which all men, whether they be acting in a public or private capacity, are bound to take notice. They can have no private instructions, and all men deal with them at their peril, in case they exceed their powers. On this subject I cannot do better than to use the language of Judge Story, as found in § 307, of his work on Agency. He says : “In respect to the acts, and declarations, and representations of public agents, it would seem that the same rule does not prevail, which ordinarily governs in relation to mere private agents. As to the latter, as we have seen, the principals are, in many cases, bound, where they have not authorized the declarations and representations to be made. But in the case of public agents, the government, or other public authority, is not bound, unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or he is employed, in his capacity as public agent, to make the declaration or representation for the government. Indeed, this rule seems indispensable, in order to guard the public against losses and injuries arising from the fraud or mistake, or rashness and indiscretion of their agents. And there is no hardship in requiring from private persons dealing with public officers the duty of inquiry as to their real or apparent power and authority to bind the government.”

Our conclusion, therefore, is that it is the duty of the treas-surer in common with every other person to take notice of the extent of the authority of the auditor as a part of the law of the state, and if, as in the present instance, the auditor allows and draws his warrant upon him for the payment of a sum of money, as the salary of a person who was not known or recognized as an officer of government, and did not act as such, or which had under the direction of the same or a previous auditor been paid to another, it was his duty to refuse payment, and thus bring the matter before the courts whose province it is finally to solve and settle all disputed and doubtful questions of law. On the other had, when the authority of the secretary is clear and provision has been made by law for the payment of the claim audited, then, notwithstanding he may think he has allowed too much or committed an error, still he should not refuse payment. Where-ever there has been an appropriation made and power is given by law to the secretary to adjust and determine the amount of the claims to be paid, his decision is final; and it is not for the treasurer or any one else to revise or correct his action.

The demurrer to the return must therefore be overruled.

* See note at the end of these oases.