Somers v. State
| Decision Date | 26 April 1894 |
| Citation | 58 N.W. 804,5 S.D. 321 |
| Parties | SOMERS v. STATE. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where two laws containing inconsistent provisions were approved by the governor upon the same day, and it becomes necessary to know which was the later expression of the legislative will, the court may, of its own motion, examine the legislative journals, and take judicial notice of what they show.
2. Section 6, c. 56, Sess. Laws 1891, empowers the superintendent of public instruction "to appoint an assistant or deputy, who *** shall perform such duties pertaining to the office as the superintendent may direct." A deputy or assistant so appointed has no fixed term of office, but holds at the pleasure of the appointing power.
3. Section 3, art. 12, of the constitution, prohibiting the legislature from increasing or diminishing the compensation "of any public officer" "during his term of office," does not apply to such deputy or assistant so appointed.
Original action by Albert G. Somers against the state of South Dakota to recover a salary as deputy superintendent of public instruction. Demurrer to complaint. Sustained.
John F Dillon, for plaintiff. Coe I. Crawford, Atty. Gen., for the State.
This is an original action against the state. In his complaint the plaintiff alleges that on the 9th day of January, 1891, he was duly appointed deputy superintendent of public instruction by the then superintendent of public instruction of the state, and that from that time to the 1st day of April, 1893, he duly performed the duties of said office or appointment; that during all that time he was entitled by law to be paid by the state for such service at the rate of $1,200 per annum; that he was only paid at that rate up to the 8th day of March, 1891; that from that time he has been paid at the rate of $900 per annum only, the auditor refusing to audit his account or draw his warrant at a greater rate or for the balance claimed to be due. He asks judgment against the state for the amount so shown to be due and unpaid. On behalf of the state the attorney general demurred on the ground that the complaint does not state a cause of action. The pleadings present the question of plaintiff's right to recover upon the following conceded facts: Section 6, c. 56, Sess. Laws 1891, authorizes the state superintendent to appoint a deputy, "who shall receive a salary of $1,200." This law was approved by the governor March 9, 1891. The plaintiff, who became such deputy prior to the passage and approval of the law, but whose appointment is not questioned, performed the duties of such deputy from January 7, 1891, to April 1, 1893. Chapter 6, Sess. Laws 1891, which was the general appropriation law, and which was also approved March 9, 1891, provided (section 1): If it affirmatively appeared that chapter 6, with its appropriation and repealing clause, was passed by the legislature subsequent to said chapter 56, it would be difficult to distinguish this case, so far as the intended, and consequently the legal, effect is concerned, from Collins v. State (S. D.) 51 N.W. 776. In that case it was held that the legislature, by its subsequent action, plainly indicated its intention to repeal, or at least to temporarily suspend, the operation of the former law, with which the latter was inconsistent, and that, in legal effect, it did so. Here both laws were approved on the same date, and so went into effect at the same time. If the question of repeal is to be determined from the intention of the legislature, and the rule of the Collins Case is correct, it is important to know, if it can be done, which was the later expression of the legislative design. It was urged in argument that there is nothing in the record, and nothing of which the court is required to take judicial knowledge, from which this can be...
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