State ex rel. Weston v. Liedtke
| Decision Date | 10 January 1880 |
| Citation | 4 N.W. 72,9 Neb. 464 |
| Parties | THE STATE OF NEBRASKA, EX. REL. JEFFERSON B. WESTON, v. F. W. LIEDTKE, AUDITOR OF PUBLIC ACCOUNTS |
| Court | Nebraska Supreme Court |
ORIGINAL application for Mandamus.
WRIT ALLOWED.
J. B Weston, pro se.
F. W Liedtke, in personam.
The office of state land commissioner was created, the duties of such office devolved upon the state auditor, and the salary for the services thereof fixed at $ 1,000 per annum, to be paid quarterly, by an act approved June 24, 1867. Gen. Stat., 990. The relator, who was the state auditor, discharged the duties of state land commissioner during the years 1875 and 1876. He drew his salary for ten months of the year 1875, leaving the same for two months of that year, and for the whole of 1876, undrawn. The sum of $ 2,000 being appropriated by the act of February 23, 1875, for salary of land commissioner, there remains of such appropriation $ 1,166.67, which the relator, having discharged the duties of the office for the whole of said time, is entitled to, unless the provisions of the constitution of 1875 have intervened to cut off his right thereto.
The respondent makes the point that the office of land commissioner, as created by the act of June 26, 1867, was abolished by section 26 of Article V. of the constitution of 1875. This position does not seem to be tenable, except in the sense that all of the offices, as created by the former constitution, were abolished. True, the office of land commissioner, previously a statutory office, was, by the force of the new constitution, lifted to the dignity of a constitutional office, and made an elective one; otherwise there is nothing to distinguish this from any other of the executive state offices, so far as the effect of the new constitution upon it is concerned. I do not think that any such meaning as that contended for can be placed upon section 26, Article V.; but, on the contrary, that by the necessary implication of the language of said section, the office of land commissioner is continued. Section 24 fixes the salaries of the governor, auditor, treasurer, secretary of state, attorney general, superintendent of public instruction, and commissioner of public lands and buildings; fixes the pay of the lieutenant governor, etc. Section 25 provides that the officers mentioned in said article shall give bonds, etc.; then follows the 26th section, which provides that "no other executive state officer shall be continued or created, and the duties now devolving upon officers not provided by this constitution shall be performed by the officers herein created." The language of this section clearly shows that it was intended as a limitation of legislative power, and not to apply in any manner to any of the officers named in the 24th section. The land commissioner, or commissioner of public lands and buildings, is not an other executive state officer, not is he an officer "not provided for by this constitution."
The respondent also makes the point: "That by reason of section 24, Article V. of the constitution of 1875, the salary of the auditor of public accounts was established at twenty-five hundred dollars per annum,...
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