
    The State, ex rel. Duffy, Atty. Genl., v. Ferguson, Aud. of State.
    (No. 26571
    Decided June 16, 1937.)
    
      Mr. Herbert 8. Duffy, attorney general, and Mr. William 8. Evatt, for relator.
    
      Mr. B. M. Winegardner, for respondent.
   By the Court.

The Attorney General filed in this court a petition in mandamus to compel the Auditor of State to draw warrants on the Treasurer of State in favor of three appointees of the Attorney General. A general demurrer was filed to the petition and counsel for the respondent Auditor of State agreed that the controversy should be submitted upon the demurrer alone and that no question was raised as to proper party.

In substance, the petition alleged that as attorney for the Public Utilities Commission, it was necessary for relator to employ special counsel and auditors in the presentation of the case of The Ohio Bell Telephone Company v. The Public Utilities Commission in the Supreme Court of the United States; that the General-Assembly passed S. B. No. 29 as an emergency measure, which was approved by the Governor, appropriating $10,000 to the office of the Attorney General for such purpose; that the relator appointed a special counsel and two auditors to fender respectively legal and auditing services in the preparation and presentation of the litigation stated, and that such services were rendered as requested by the relator. It is also alleged in the petition that statements aggregating $6600 for such legal and auditing services, which were rendered by the special counsel and the two auditors, were approved by the relator, who transmitted to the respondent vouchers for the payment of such services, that the Director of Finance had certified that funds were on hand and duly appropriated to pay such obligations, that “each of these vouchers was duly certified by relator, which certificates stated that the services rendered were necessary and properly authorized, and that the amount stated was in accordance with the appropriation made by law, and that the amounts were correct, a legal charge against the state of Ohio and approved for payment.”

The General Assembly by separate enactment having made an appropriation for the specific purpose of enabling the Attorney General to employ special counsel and auditors in the presentation of the case above mentioned, discretion was thereby lodged in that officer to make the appointments and determine the compensation to be paid. By his demurrer the respondent admits the well pleaded allegations of the petition above quoted and, no answer having been filed and the respondent not desiring to plead further, the writ will issue.

Writ allowed.

Weygandt, C. J., Jones, Matthias, Day, Zimmerman and Williams, JJ., concur.

Myers, J.,

concurring. I concur in the foregoing judgment but am of the opinion that the issue involved in the instant case requires a more extended statement. Even though the Auditor of State only filed a demurrer admitting the material allegations of the petition, there should be no misconception about the decision of this court or its effect. Section 243, General Code, defining the duties of the Auditor of State reads as follows:

“The Auditor of State shall examine each voucher presented to him, or claim for salary of an officer or employe of the state, or per diem and transportation of the commands of the national guard, or sundry claim allowed and appropriated for by the General Assembly, and if he finds it to be a valid claim against the state and legally due, and that there is money in the state treasury duly appropriated to pay it and that all requirements of law have been complied with, he shall issue thereon a warrant on the Treasurer of State for the amount found due, and file and preserve the invoice in his office. He shall draw no warrant on the Treasurer of State for any claim unless he finds it legal, and that there is money in the treasury which has been duly appropriated to pay it. ’ ’

Under the foregoing section the auditor was required to examine the vouchers filed even though a specific appropriation for the purpose had been made by the Legislature. I do not subscribe to any inference that a mere certification by a state official that a certain amount of money is due an individual will foreclose the auditor from making an investigation if he has ample reason therefor. That is his duty under the statute. It appears from the petition that one of the appointees for whom a voucher was filed was on the payroll of the state in two different capacities. That fact would be sufficient to warrant the auditor to investigate.

However, in the instant case it appears in the petition that the vouchers were filed by the Attorney General on March 11 and April 12, 1937.' The Auditor of State has therefore had time in which to make an investigation if he so desired. Instead of any statement from the auditor as to the result of any investigation he chose to file a demurrer, thereby admitting the facts well pleaded in the petition. Not having filed an answer submitting any facts with reference to anything which he may have discovered, the court does not have anything before it except the petition which contains the certification of the Attorney General— that the services have been performed and that the money is due. In the state of the pleadings, therefore, in this proceeding the court has no alternative except to overrule the demurrer.  