
    BOARD OF ELECTIONS.
    [Hamilton Circuit Court,
    January Term, 1899.]
    Smith, Swing and Giffen, JJ.
    State ex rel. v. Henry P. Boyden, Auditor.
    1. May Employ Counsel without Authority oe Board oe Legislation.
    The hoard of elections of Hamilton county, notwithstanding the provisions of sec. 1781, Rev. Stat., may, without the authority of the board of legislation, in a proper case, employ counsel and from funds appropriated to their use pay them, when such action becomes necessary to protect the rights of such board. Yaple v. Morgan, 1 Circ. Dec., 557, followed.
    2. A Proper Case eor the Exercise oe this Power.
    A case in which the powers of the board of elections, in the matter of the direction and control of judges of election, have been usurped by a court, and in which it is held that corporation counsel has no .authority to appear for such board, is a proper case within the rule above stated.
    8. That Board was not a Party does not to Prevent Payment oe Counsel.
    The mere fact that the board of elections was not a formal party to the case should not prevent the board from making proper payment to counsel employed, where the rights, privileges and duties of the board were vitally affected by the decision.
    4. Voucher Should be drawn on Fund eor Sundry Election Expenses.
    Where the board of legislation has provided by specific appropriation, under sec. 2690h, Rev. Stat., for the board.of elections under four heads, (1) for salaries of members and clerks, (2) for sundry election expenses, (3) for stationery and printing, and (4) for pay rolls forjudges, clerks, etc., the voucher for legal services should be drawn on the second item.
    6. IE no Money is in Fund Auditor may Repuse Warrant.
    If there are not sufficient funds to the credit of the account upon which the voucher is drawn, the auditor is justified, under sec. 1765a, Rev. Stat., which is mandatory, in refusing to draw his warrant until sufficient funds are on hand to meet the same.
    
      6. May Refuse Warrant if Voucher is not Drawn on ProperFund.
    And if the voucher is not drawu on any particular fund, or on the proper fund> the auditor is justified in refusing to draw his warrant until a proper voucher is presented.
    Mandamus.
   Smith, J.

The relator, Mr.' Matthews, avers in his petition that he is an attorney at law, and that in February, 1899, he was by resolution of the board of elections of this city, employed to render legal services to it and its members, concerning their official duties pertaining to a primary and general municipal election then pending in said city, and especially in connection with certain injunction proceedings pending in the superior court of this city, and contempt proceedings issued against the judges of the election for the alleged violation of said injunction by reason of the performance of their official duties according io law, and the order of said board of elections. That under the statutes of the state, the board was empowered to instruct the judges acting at the election, touching their duties at such elections and the receiving and counting of ballots cast. That such court had taken jurisdiction over said primary elections, and instructed the judges of said elections in the matter of receiving and counting ballots, and had taken from said board of election their just and legal powers under the law, and said orders had been served on the very day of said election, in the afternoon, when it was impossible to get authentic information to the judges of said election by proper official writs or notice, and the action of said judges in the confusion thereby created, was charged against them and against the clerk of said board, in contempt proceedings, which proceedings involved the right of said court to issue said injunction and interfere with and usurp the legal and statutory rights of said board of elections —that said injunction proceedings were wholly without jurisdiction and authority of law, and impeded the said board and its secretary in the discharge of their official duties pertaining to said elections.

That upon the hearing of said injunction and contempt proceedings before the judge hearing the same, it was held that the duly elected and qualified counsel for the city could not appear as an attorney therein, and that the relator by virtue ot said employment attended the trial and hearing of said cause, and gave advice to said board pertaining to its official duties therein ; and presented a true and correct account to said board for his services in the sum of $500, which sum they were reasonably worth. That the board approved said account, and ordered the payment thereof, which action was duly certified by its president and seqretary to the said H. P. Boyden, auditor of said city, after having been duly approved by Ellis G. Kiukead, corporation counsel. That there was then, and is now, money in the hands of the treasurer of said city to the credit of its general fund, and of the residue thereof, and of the appropriated estimate for the said board, and to its credit, and not otherwise appropriated, sufficient to pay relator’s claim, yet the defendant refuses to issue a warrant therefor. Wherefore, it is asked that he be required to do so.

The answer of the defendant admits that the relator is an attorney at law, and the defendant is the city auditor, and that the board of election issued to relator a voucher, addressed to the defendant, for $500, .approved by tlie corporation counsel, in payment lor certain legal services alleged to' have been rendered to the board by the relator, and that the ■delendant refused to draw his warrant upon the treasurer therefor. He further admits that Judge Jackson of the superior court refused to allow the corporation counsel to appear for the respective defendants in the injunction and contempt proceedings. Thereupon he denies all the -other allegations in the petition not admitted.

And by way of further defense defendant avers: First, that the board of elections was not a party to either of said injunction or contempt proceedings; that the injunction proceedings were against certain judges of elections individually, and the contempt proceedings were against Green and certain judges of election individually, and, therefore, .said legal services were rendered to the respective defendants individually, and not to the board of elections.

Second — The employment of relator by the board was not authorized by a resolution of the board of legislation or council of said city, ¿and, therefore, was contrary to the provisions of sec. 1781, Rev. Stat.

Third — There were not at the time said vouchers was presented to defendant, nor are there now, funds in the city treasury to the credit of said board, and not otherwise appropriated, sufficient to pay said voucher.

Fourth — Said voucher does not "state specifically against which item of appropriation for the use of said board it is to be drawn, and it is, therefore, defective and contrary to the provisions of sec. 17G5a sub. "2, Rev. Stat., etc.

Fifth — That the board employed the relator, approved and issued said voucher without the certification of the city auditor that the money to pay itherefor was in the city treasury, specially set apart to meet said -expenditure, as is required by secs. 2699 and 2702, Rev. Stat.

It is earnestly urged by counsel for the defendant that if the relator -on other grounds was entitled to the relief asked by him, that the fact that the legal services admittedly rendered by him, at the instance of the board, were rendered, in part at least, for the benefit of, or in cases where the judges of election and the clerk of the board were parties, individually, and where the board itself was not, would make a case where it was clear that the relator should not have compensation from the funds in the city treasury appropriated for the purpose of this board. While there was a formal denial of the allegations of the petition not expressly admitted by the answer, we understand that many of the allegations of the petition as to the circumstances under which the employment of Mr. Matthews was made, the situation of affairs at the time and the character and value of the services, were substantially admitted, and some of them are of common knowledge. That under the statutes of the state, the board of elections had authority to instruct the judges of election as to their duties at an election and the receiving and counting the votes cast, and that this duty had in a manner been usurped by one of the courts, as afterwards held by the court itself, and that the just and acknowledged powers of said board might be upheld and maintained (as the corporation counsel .was not allowed by such court to appear in-court, and represent the board), it seemed neces^rt’-'- and proper that counsel should be employed and appear for the board., [f it had under any circumstances the right to employ counsel, without an authorization of the board of legislation of the city, in accordance with the provisions of sec. 1781, Rev. Stat., it would seem that it shpuld have been done in this case, and that the -mere fact that the services, (in part at least) were rendered in cases to which the board was not a formal party, but the decision of which in fact vitally affected its rights, privileges and duties, ought not to prevent the board from making proper payment for such services. But in this case the allegations of the petition were that services had been rendered by the relator -to the board, outside of those suits and proceedings.

Robertson & Buchwalter, for plaintiff.

Mr. Hollister, for defendant.

We are further of the opinion that the decision of this court in Yaple v. Police Commissioners, 1 Circ. Dec., 557, and affirmed by the Supreme Court without report, May 12, 1891 (Bradbury andMinshall, JJ., dissenting), applies to this case, and for the general reasons therein stated, that the board of elections, notwithstanding the provisions of sec, 1781, Rev. Stat., may in a proper case employ counsel, and from the funds appropriated to their use, pay them, when it becomes necessary to protect the rights of such board.

With reference, however, to the third.and fourth special defenses 'interposed by the defendant, it was shown by the evidence introduced in the case that the board of legislation of this city, by a specific and specified appropriation, made in conformity with the provisions of sec. 269Q/z, Rev. Stat., provided for the board of elections for the first six months of the year 1899, under four heads: First, for salaries of members and clerks; second, for sundry election expenses; third, for stationery and printing, and fourth, for pay-rolls, judges, registrars and clerks — with a certain sum total for each. It is clear, we think, that this bill should have been drawn on the second item, viz., for sundry election expenses. The evidence shows that when the voucher for Mr. Matthews was presented, there was $363.89 to the credit of that fund, and that there is now less than $25.00. Section 1765a, sub. 2 an 3, Rev. Stat., provides as follows:

“Second — He shall keep separate accounts for each specified item of appropriation made to each department, and require all vouchers to state specifically against which of said items the same are drawn. Fach .account shall be accompanied by a statement in detail, in separate columns, of the several appropriations, the unpaid contracts charged against each, and the balance standing to the credit of each.
“Third — He shall not allow the amount set aside for any appropriation to be overdrawn, or the amount appropriated for one item of expense to be drawn upon for any other purpose, or by any department other than that for which the appropriation was specifically made, nor unless sufficient funds out of which said voucher is payable shall actu•ally be in the treasury at the time of the credit of the item upon which it is drawn.”

These provisions are mandatory, and a penalty is imposed by the same section upon the auditor if he violates them. And as there were not sufficient funds to the credit of the account upon which the voucher should have been drawn to meet the same, and as the voucher in fact was not drawn upon any particular item, the auditor was justified in refusing to draw a warrant for said services of the relator on said voucher, or until a proper voucher is presented, and there be sufficient funds in the treasury applicable thereto to meet the -same. The writ will, therefore, be refused.  