Marshall v. Dunn

McKinstry, J. This is an appeal from a judgment in mandamus of the Superior Court of Sacramento County, denying the plaintiffs’ petition, that defendant be commanded to draw warrants in favor of plaintiffs for traveling expenses when engaged in contests about public lands between the state and the United States.

The complaint is as follows:—

“And now comes E. C. Marshall, attorney for plaintiffs herein, and respectfully moves this honorable court to issue its mandate against the defendant, J. P. Dunn, state controller, commanding him to issue his warrants against the treasury of said state, as follows: In favor of said petitioner, H. I. Willey, surveyor-general, in the sum" of two hundred and fifty dollars, and in favor of said petitioner, E. C. Marshall, attorney-general, in the sum [224]of seven hundred and fifty dollars, in payment of accounts of said plaintiffs, as allowed by the state board of examiners on the seventh day of April, 1884, in pursuance of section 3413 of the Political Code of California. The legislature of the state of California, by an act entitled ‘An act making appropriations for the support of the government of the state of California for the thirty-fifth and thirty-sixth 'fiscal years/ approved March 9, 1883, and found in the statutes of 1883, pages 12 and following, made the following appropriation: ‘For traveling expenses of the surveyor-general and the attorney-general, when engaged in contests between the state and the United States about public lands, one thousand dollars. That warrants have been duly drawn by the defendant, J. P. Dunn, as controller aforesaid, during the thirty-fifth fiscal year, against said sum of one thousand dollars, in favor of said plaintiff, H. I. Willey, surveyor-general, amounting to the sum of five hundred dollars. That by section 4 of the act of March 9, 1883, it is provided that ‘not more than one half of any sum appropriated under this act shall be expended during the thirty-fifth fiscal year, unless such sum is exempted from the operation of this section. That the services of plaintiffs were rendered during the thirty-fifth fiscal year, and the appropriation made by the said act of March 9, 1883, has been drawn upon for the sum of five hundred dollars. That there is of the appropriation of one thousand dollars remaining the sum of five hundred dollars, against which no warrants have been drawn. That the legislature has made no appropriation since March 9,1883, for the payment of the traveling expenses of the plaintiffs in this action, nor does any appropriation for that purpose exist, other than the said act of March 9, 1883, and that found in the section 3413 of the Political Code.