I concur in the majority opinion and in the judgment denying issuance of the writ as to items one (1) and two (2). I dissent from the opinion and judgment relating to items three (3), four (4), five (5) and six (6), and ordering issuance of the writ as to them.
Petitioner, as director of finance of the state, petitions for a writ of mandate requiring the respondent, as state controller, to approve certain claims, and, in order that they may be paid, to augment the specific appropriations made by the legislature for the support and maintenance of the departments and activities against which the claims are made by making transfer of money from the emergency fund created by the general appropriation act. The petition presents for our consideration the question: Does an "emergency" exist within the meaning of the appropriation act (Stats. 1933, chap. 278, p. 814) creating the "emergency fund", and which provides (Item 201) as follows: "For emergency fund, five hundred thousand dollars, $500,000.00 (exempt from section 4 of this act) to be expended only on written authorization of the State Department of Finance for emergencies. Emergencies within the meaning of this provision are hereby defined as contingencies for which no appropriation, or insufficient appropriation, has been made by law."?
The respondent, on the advice of the attorney-general, rejected the claims on the ground that no such emergency exists. The claims, six in number, are:
(1) In favor of the chief of the division of service and supply of the department of finance.
(2) For the support of the bureau of commerce of the same department.
(3) Support of the Governor's office — expense of conference of governors in California.
(4) Division of narcotic enforcement.
(5) Division of water resources, department of public works.
*Page 359(6) Department of social welfare.
As to the first two, the petitioner, as director of finance, issued his executive orders, finding as to each that a "contingency has arisen . . . that no appropriation [italics supplied] has been made by law for the purpose during the fiscal year", and authorizing a sufficient expenditure from the emergency fund to cover the claims. As to these claims, I agree with the majority opinion that consideration is foreclosed by the provisions of the appropriation act (Item 38) providing for the support of the department of finance. That item reads: "For support of Department of Finance, nine hundred nine thousand eight hundred six and 35/100 dollars; provided that no moneyhereby appropriated shall be used for salary and expenses ofChief of the Division of Service and Supply, or Bureau ofCommerce, or Bureau of Publications and Documents ____$909,806.35." [Italics supplied.] I find no other items in the appropriation act applicable to the chief of the division of service and supply or to the bureau of commerce.
The "executive orders" of petitioner applicable to the remaining four claims, and authorizing their payment out of the emergency fund, recite that "a contingency has arisen . . . in that insufficient appropriation [italics supplied] has been made by law for expenses, etc. . . ." These recitals imply, and the provisions of the appropriation act show, that the legislature, as required by the Constitution (art. IV, sec. 34), considered the budget bill submitted by the Governor, and finally enacted it as the appropriation act, making provision for the usual current expenses of the state for the biennial period, including the fiscal year in which accrued the claims here under consideration.
"Emergencies" which call for demands on the "emergency fund" are defined by the act (supra) "as contingencies for which no appropriation, or insufficient appropriation, has been made by law." We obtain no help from the decisions of other states in considering this provision. The financial set-up of our own state, under its Constitution and laws, affords a sufficient answer, in my opinion, to the efforts of petitioner to supply appropriations in two cases and to augment appropriations in the other cases. We have noted the express prohibition by the legislature against the use, for the first two claims, of any money appropriated. *Page 360
I cannot agree that it was the intention of the legislature in enacting the loosely worded definition of an "emergency" to thereby permit an increase out of the "emergency fund" of appropriations made by it for the usual and ordinary expenses of the regularly constituted departments of state or state institutions. Neither am I persuaded that, because in the past transactions similar to those here under review have been permitted, they were legal. Our own decision in Heron v.Riley, 209 Cal. 507 [289 P. 160], does not apply here. We were there considering the statute (Stats. 1929, chap. 260) making the state liable for the negligent operation of its motor vehicles, and authorizing the state to insure against such liability. The statute was passed after the budget bill had been enacted. No appropriation for payment of the necessary insurance premiums was made in the appropriation act or by subsequent special statutes, yet it was made the duty of the proper authority to secure the proper insurance against liability. That was done, and we had no hesitancy, under the situation there disclosed, in holding that an "emergency" existed which permitted payment of the premiums out of the emergency fund.
The alternative writ of mandate heretofore issued should be discharged, and the petition for a peremptory writ should be denied in toto.
I am authorized to state that Mr. Associate Justice Curtis concurs in this dissenting opinion.