{ "id": 1955462, "name": "JOHN H. BONER v. HENDERSON ADAMS, Auditor of the State of North Carolina, and DAVID A. JENKINS, Treasurer of the State of North Carolina", "name_abbreviation": "Boner v. Adams", "decision_date": "1871-06", "docket_number": "", "first_page": "639", "last_page": "644", "citations": [ { "type": "official", "cite": "65 N.C. 639" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "17 How. 225", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 5678021 ], "opinion_index": -1, "case_paths": [ "/us/58/0225-01" ] }, { "cite": "24 Howard, 66", "category": "reporters:state", "reporter": "Howard", "opinion_index": -1 } ], "analysis": { "cardinality": 471, "char_count": 9404, "ocr_confidence": 0.394, "pagerank": { "raw": 2.1081717912569068e-07, "percentile": 0.7628050901809333 }, "sha256": "dd786f4bb0eb933d47292d25527594255cf7f76f9dc6215ab18097cf2ce3cd6d", "simhash": "1:fdfb1e7a154dc698", "word_count": 1695 }, "last_updated": "2023-07-14T18:41:56.423501+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN H. BONER v. HENDERSON ADAMS, Auditor of the State of North Carolina, and DAVID A. JENKINS, Treasurer of the State of North Carolina." ], "opinions": [ { "text": "Readk, J.\nThe Treasurer, Jenkins, can pay no money out of the treasury, except on the warrant of the Auditor. Acts 1868-\u201969, ch. 270, sec. 71.\nThe plaintiff admits that he had no warrant from the Auditor; and so, according to the plaintiff\u2019s'owu showing, he can have no process against the Treasurer. And, therefore, the case must be dismissed as to him with costs.\nThe Auditor is an officer, named in the Constitution, \u201cwith duties to be prescribed by law.\u201d Art. Ill, secs. 1 and 13.\nThe Act of 1868-69, ch. 27, prescribes his duties.\nSec. 63, paragraph 1, \u201c To superintend the fiscal concerns of' the State.\u201d\n7. \u201cTo examine and liquidate the claims of all persons against the State in cases where there is sufficient provision, of law for the payment thereof, and where there is no sufficient provision to examine the claim and report the fact, with his opinion thereon, to the General Assembly.\u201d '\n9. \u201cTo draw warrants on the Treasurer for the payment of all moneys directed by law to be paid out of the treasury, but no warrant shall be drawn unless authorized by law, and every warrant shall refer to the law under which it is drawn.\u201d\nSec. 65. \u201c He has power to require any person presenting an account for settlement lo be sworn before him, and to answer orally any fact relating to its correctness.\u201d\nIt is apparent that the Auditor is not a mere ministerial officer.\n1. He is to pass upon the \u201c correctness \u201d of the claim. This is not a ministerial duty.\n2. He is to judge whether there is \u201csufficient provision of law for its payment.\u201d This is not ministerial.\n3. If there is not sufficient provision of law, then he is to \u201c examine the claim, and report the fact with his opimion, to the General Assembly.\u201d This is not ministerial. The plaintiff has a claim against the State for services as Cleric of the General Assembly. He says, a part of his claim has been paid and a part is still due. The Auditor\u2019s first duty was to pass upon \u201c its correctness.\u201d Helias done that, and says it is not correct.\nIt seems that the plaintiff had already presented his claim for the whole time of his services, three hundred and four days, and the same had been allowed and paid. A second claim, not for other services or other times, but for the same services and times, was well calculated to excite the caution of the Auditor, who is charged with the \u201c superintendence of the fiscal concerns of the State \u201d generally, and of every particular claim against the State.\nWhen this second claim was presented, we are to suppose that the Auditor enquired, \u201cWhy did you present a claim for the whole time at $7 per day, as the sum to which you supposed yourself entitled 2 and why do you present a different account now, for the same time and services at $10 per day 2 Is there no ground for supposing that the Legislature was thrown off its guard in passing the act, under which you claim, (which is a quasi private act) or that it does not mean what you suppose it does 2 \u201c Unless you make all this plain to me, I must hold you as estopped by the settlement, which we have heretofore made.\u201d\nThe most this Court could do, would be to' order the Auditor to examine the claim and to allow it, if he thought it \u201ccorrect and in that event to issue his warrant for it, if, in his opinion, there is \u201csufficient provision of law for iti payment.\u201d And if he were to allow the claim as \u201c correct,\u201d and determine that there is not \u201c sufficient provision of law for its payment,\u201d and were to refuse to report the fact,fwith his opinion, to the Legislature, we might compel him to do so. But he has audited the claim, and finds it \u201cincorrect.\u201d We have no power to to compel him to change his opinion. Nor can we pass upon the merits of the claim.\nIf the claim were before us, upon ascertained facts, we might, under art. IY. sec. 11. of the Constitution, declare the law .and recommend it to the Legislature.\nIt seems to us that the plaintiff\u2019s remedy, if he has one, is an application to the Legislature, which through\u2019 its appropriate committee, can pass upon the claim, and if found to be just, ean, by appropriate legislation, make the duty of the Auditor plain.\nIt is not to be supposed that the Auditor has any other than an honest purpose to do his duty, or that the Legislature will fail to see that the just claims of its Clerk shall be paid.\nThere is error.\nPee Cueiam. Order reversed and mandamus refused.", "type": "majority", "author": "Readk, J." } ], "attorneys": [ "Fowle and J. G. L. Harris, for plaintiff.", "Attorney General and Battle & Sons, for defendants." ], "corrections": "", "head_matter": "JOHN H. BONER v. HENDERSON ADAMS, Auditor of the State of North Carolina, and DAVID A. JENKINS, Treasurer of the State of North Carolina.\nTiie Auditor of the State is not a mere ministerial officer. When a claim is presented to him against the State, he is to decide whether there is a sufficient provision of law for its payment, and if in his opinion there is not sufficient provision of law, he must examine the claim and report the fact, with his opinion, to the General Assembly.\nTherefore, where a Clerk of the General Assembly had received a warrant for the entire number of days to which he was- entitled, at seven dollars per day, he had no right to a writ of mandamus against the Auditor of the State because he refused to give him a warrant for three dollars per day additional for the same number of days for which he had heretofore obtained a warrant.\nThe mode of proceeding against the Auditor of the State, who refuses to issue a warrant, discussed and explained. \u2019\nIt is improper to join the Treasurer of the State with the Auditor in an application for a writ of mandamus, when the plaintiff has obtained no warrant from the Auditor of the State.\nApplication for a peremptory writ of mandamus heard before Watts, J., at Chambers.\nThe plaintiff alleged in his complaint that he was Clerk of the House of Representatives of North Carolina from the first \u25a0day of July, 1868, to the organization of the General Assembly, which was elected on the first Thursday in August, A. D. 1870.\nThat for services rendered the State as Clerk, aforesaid, for \u25a0the time mentioned in the preceding allegation, he is entitled to ten dollars per day, for three h undred and four days, less seven dollars per day, that he has received. That said additional sum is due him, under and by virtue of an act of the \u25a0General Assembly, ratified the 26th day of November A. D. 1869, entitled \u201c An Act in relation to per diem and mileage.\u201d\nThat he has demanded of the defendant, Henderson Adams, Auditor of the State of North Carolina, a warrant for nine hundred and twelve dollars, the amount plaintiff is entitled to under the aforesaid act, and that the Auditor has refused to issue a warrant for said sum, and that in consequence thereof the defendant, David A. Jenkins, who is the Treasurer of the State, has refused to pay said sum. Wherefore, plaintiff asks ior the writ of mandamus, commanding the defendant, as Auditor aforesaid, to issue his warrant to plaintiff for the sum \u25a0of nine hundred and four dollars, and the defendant, Jenkins, as Treasurer of the State, to pay said claim upon presentation X)f a warrant from the Auditor for that amount.\n1. The defendants, in their answer, deny that said sum or any \u25a0part thereof is due plaintiff.\n2. That the Judge, at Chambers, has no jurisdiction over the subject matter, and cannot issue a peremptory writ of mandamus, as prayed.\n3. That the State cannot thus be sued for the recovery of a ,debt.\n4. That the affidavit or complaint does not pray judgment for the debt, nor that the same may be audited, or ascertained according to law.\nHis Honor being of opinion that the plaintiff was entitled \u25a0.to the process prayed for, ordered that a writ of mandamus issue to the defendant, Adams, as Auditor of the State, com-, manding him to issue a warrant for nine hundred and four dollars, and commanding the defendant Jenkins, Treasurer as .\u2022aforesaid, to pay said claim upon presentation of the warrant -of the Auditor.\nFrom which the defendants appealed.\nFowle and J. G. L. Harris, for plaintiff.\nAttorney General and Battle & Sons, for defendants.\n1. There is here an improper joinder of parties.\nThe Treasurer must pay only upon the warrant of the Auditor. Acts of 1868-69, ch. 270, p. 631.\n2. This claim is immediately against the State, and a State -cannot be sued.\n8. The Constitution and laws provide the remedy for prosecuition of such claims. Art. IY. sec. 11, C. C. P. secs. 415 and 416.\n4. The act of 1869-\u201970 is prospective upon its face. (Chap. 1, p. 41.)\n5. No appropriation act as to the' Clerks. See Const. Art. IXIY. Sec. 3.\n6. Mandamus not a prerogative writ, but is now only an ordinary action at law. Kentucky v. Dennison, 24 Howard, 66. See also Tapping on Mandamus, 7-8.\n7. Mandamus will not lie against a public officer where discretion and judgment are to be exercised, and can only be \u00abgranted where the act is merely ministerial, and when there is no other adequate legal remedy. United States v. Seaman, 17 How. 225 ; U. S. v. Guthrie, Ibid, 284/ The Secretary v. Me