Carr, Auditor, v. The State, ex rel. Stewart.

and Sanitary Statistics, or show cause why he should not issue such warrant. Appellant appeared voluntarily, and, waiving the issue of an alternative writ of mandate, answered specially in bar of the action. The relatrix's demurrer to such answer was sustained by the court, at special term. To this ruling appellant excepted at the time, and, declining to amend or answer further, the court rendered judgment against him, in favor of relatrix, for a peremptory writ of mandate, with costs, as demanded in her complaint. On appeal, this judgment was in all things affirmed by the general term; and from the judgment of the general term this appeal is now here prosecuted.

Error was assigned by appellant in general term, and is properly presented here, upon the sustaining of relatrix's demurrer to appellant's answer herein.

It is necessary, we think, to a proper understanding of this case and of the questions to be decided therein, that we should first give a summary of the facts stated by relatrix in her verified complaint. She alleged that under and pursuant to the provisions of an act of the General Assembly of this State, entitled "An act establishing a State Board of Health, defining its purposes, powers and duties: providing a system of registration and report of vital and sanitary statistics in connection therewith, and prescribing the duties of certain state, county, township and city officers in relation thereto, and prescribing penalties for violation of certain provisions thereof," approved March 7th, 1881, which act took effect and became a law on the 19th day of September, 1881, the State Board of Health was created and, on November 3d, 1881, was fully organized, and then entered upon, and had since continued in, the discharge of its duties as prescribed by law; that afterwards, on May 9th, 1885, the State Board of Health, in the discharge of its duties, under the above entitled act, needing clerks to perform clerical duties in the "Bureau of Vital and Sanitary Statistics," created in and by section 7 of such act (section 4992, R. S.

Carr, Auditor, v. The State, ex rel. Stewart.

1881), made its requisition upon the then secretary of state for two clerks to perform such clerical duties; that, on the day last named, and upon such requisition, the then secretary of state designated and provided the relatrix herein as one of such clerks to perform such clerical duties for the State Board of Health; that, in pursuance of such requisition and of such action thereon by the then secretary of state, the relatrix on such last named day entered upon the performance of such clerical duties as were required of her by the State Board of Health, at the salary then agreed upon between her and such state board, of $50 per month; and that since May 9th, 1885, continuously until the filing of her complaint herein, the relatrix had fully performed her clerical duties in such "Bureau of Vital and Sanitary Statistics," to the entire satisfaction and under the orders and directions of the State Board of Health, and that, during all of such time, she performed no work whatever in connection with the duties of the secretary of state, or under his control or direction, except as herein stated; that for all such clerical work so performed by her the relatrix had been regularly paid at the rate of $50 per month, upon vouchers issued to her by the State Board of Health, directed to the auditor of state, who regularly issued his warrants therefor, from time to time, upon the treasurer of state, except for the months of February and March, 1887; and that for clerical services so performed by her, during such two months, there was due her and unpaid the sum of $100.

And the relatrix further alleged that, on March 31st, 1887, by order of the State Board of Health, a voucher for such sum of $100 for the clerical services by her performed as aforesaid, during such months of February and March, 1887, was issued in her favor by the secretary of such state board and approved by its president, and directed to the auditor of state, a copy of which voucher was filed with and made part of her complaint; that afterwards, on April 1st, 1887, the relatrix presented such voucher to appellant, as such au

Carr, Auditor, r. The State, ex rel. Stewart.

ditor of state, and demanded that he issue to her his warrant upon the treasurer of state for the payment of such sum of $100; and that appellant, as such auditor, unlawfully and wrongfully refused his warrant to her for the payment of such sum. And relatrix averred that, at the time of her presentation of such voucher to appellant, auditor of state, there was sufficient money in the hands of the treasurer of state provided by law for the payment thereof. Wherefore, etc.

In his answer to the complaint of appellee's relatrix, appellant, Bruce Carr, auditor of state, alleged that on the 9th day of May, 1885, while William R. Myers was secretary of state of the State of Indiana, the State Board of Health made its written requisition, signed by its secretary and approved by its president, upon such secretary of state, of the tenor following, to wit: "We have the honor to request that you appoint two clerks for service in this office, as provided for in section 4992, R. S. 1881;" that thereupon, on the same day, William R. Myers, as such secretary of state, in response to such requisition, notified the secretary of the State Board of Health, in writing, that he appointed "Prof. D. N. Berg and Miss Florence Stewart for such clerkships;" that thereupon, and by virtue of such appointment, Miss Florence M. Stewart, appellee's relatrix, entered upon the discharge of the duties of a clerk in the "Bureau of Vital and Sanitary Statistics," and so continued as such clerk in said bureau, under such appointment as aforesaid of such secretary of state, until, to wit, February 2d, 1887, when Charles F. Griffin, then and since secretary of state for such State of Indiana, as the successor in office of William R. Myers aforesaid, removed appellee's relatrix, Miss Florence M. Stewart, and served on her a written notice of that date, signed by him and addressed to her, of the tenor following, to wit:

"I have the honor to inform you that, in accordance with the powers and duties vested in me, as secretary of state of the State of Indiana, by section 4992, R. S. 1881, I have this

Carr, Auditor, v. The State, ex rel. Stewart.

day appointed James D. Walker to succeed you as clerk of the Bureau of Vital and Sanitary Statistics of said State, said appointment to take effect on and after February 3d, 1887; and that, on and after that day, your services will be no longer required as such clerk."

That, at the same time, Charles F. Griffin, as secretary of state, made of record the following appointment, signed by him and sealed with the seal of the State, to wit:

"I, Charles F. Griffin, secretary of state within and for the State of Indiana, do hereby constitute and appoint James D. Walker to be, and perform the duties of, clerk of the Bureau of Vital and Sanitary Statistics of the State of Indiana, in accordance with the provisions of section 4992, R. S. 1881, of said State, to succeed Miss Florence Stewart as clerk of said board. This appointment shall be and remain in full force and effect on and after February 3d, 1887."

That, on the same day, the secretary of state caused a written notice, signed by him, as such secretary, to be served on the secretary of the State Board of Health, of the following tenor, to wit:

"I have the honor to inform you that, in accordance with the opinion of the attorney general of the State of Indiana, this day filed in my office, and the powers and duties vested in me as secretary of state for the State of Indiana by virtue of section 4992, R. S. 1881, and in accordance with the requisition issued by you, as secretary of the said board, to the Honorable William R. Myers, secretary of state, on the 9th day of May, 1885, calling for two clerks for service in the office of said board, and to perform the clerical duties of the Bureau of Vital and Sanitary Statistics of said State, I have this day removed Miss Florence Stewart, as such clerk, and appointed James D. Walker to succeed her in the performance of such duties; said removal and appointment to take effect on the 3d day of February, 1887."

That on said 3d day of February, 1887, and at divers and sundry times thereafter until this time, said James D. Walker,

Carr, Auditor, v. The State, ex rel. Stewart.

at the office of the State Board of Health, that being the proper office and place, offered his services, and to perform his duties, as clerk of the Bureau of Vital and Sanitary Statistics, under such appointment; but, on each and every such occasion, the secretary of the State Board of Health refused to recognize him as such clerk; and that said Walker had been, and still was, willing and ready to perform his duties as such clerk, under said appointment. And appellant said, that the relatrix, Florence M. Stewart, notwithstanding the premises aforesaid, voluntarily performed the duties of a clerk in said office, at the direction of the secretary of the State Board of Health, from that time on, and was, when appellant answered herein, so performing such duties, in defiance of her said removal and without right or authority so to do; and that, for these reasons, appellant, auditor of state, did refuse to issue a warrant to the relatrix herein, on the treasurer of state, for the payment of her claim for $100, as alleged in her verified complaint, and for no other reason. Wherefore, etc.

Two questions are presented for our decision by the error assigned by appellant upon the sustaining by the court, at special term, of the demurrer of the relatrix to his special answer to her verified complaint herein, namely: 1st. Was Charles F. Griffin, secretary of state, authorized or empowered by any law of this State to discharge or remove appellee's relatrix, Florence M. Stewart, from the performance of the clerical duties assigned to her in the Bureau of Vital and Sanitary Statistics? 2d. Was such secretary of state authorized and empowered by any law of this State to designate or appoint any one for the performance of clerical duties in such bureau, except "upon the requisition of the secretary of the State Board of Health, approved by the president thereof," addressed to such secretary of state? If these two questions must be answered in the negative, as they certainly must, we think, it is clear that no error was committed by the court, at special term, in sustaining the demurrer of relatrix to ap