Blair v. Marye

• Decision Date: 07 May 1885
• Citation: 80 Va. 485
• Parties: BLAIR, ATTORNEY-GENERAL, v. MARYE, AUDITOR.
• Court: Virginia Supreme Court

80 Va. 485

BLAIR, ATTORNEY-GENERAL, v. MARYE, AUDITOR.

Supreme Court of Appeals of Virginia.

May 7, 1885

Upon petition of F. S. Blair, attorney-general for four years commencing January 1st, 1882, asking for a writ of mandamus to compel Morton Marye, auditor of public accounts, to pay to petitioner the sum of $833.33 1/3, due him at the date of his petition, as his compensation prescribed by law, and for the payment whereof the general assembly had made appropriation for the months of November and December, 1884, and of January and February, 1885, which petitioner had demanded, but which said auditor refused to pay. To a rule nisi served on said Marye the latter demurred, and answered the petition. In his answer, he set up that the petitioner had, during his term of office, drawn without authority of law, the sum of $5412.87 from the treasury, whereof nothing had been repaid, and that the petitioner, by the act of 24th November, 1884, could not receive any salary until said sum so overdrawn had been repaid. To this answer, the petitioner demurred and replied.

The details are set forth in the opinion.

John H. Guy and W. W. Field, for the petitioner.

W R. Meredith, for the respondent.

OPINION

FAUNTLEROY J.

Upon the petition of F. S. Blair, attorney-general of Virginia representing that, at the regular election held on the fourth Thursday in November, 1881, he was duly elected to the office of attorney-general of the state of Virginia: that he has been duly commissioned, and has qualified as such in accordance with the constitution and laws of Virginia; that he has entered upon the discharge of his official duties as such attorney-general; that his term of office commenced on the 1st day of January, 1882, and continues until 31st of December, 1885; that he is a constitutional officer, made such by Article VI, section 8, of the constitution of the state; that the constitution provides that he shall receive such compensation as may be prescribed by law; that at the time of his qualification his compensation as such attorney-general prescribed by law was $2500 per annum; that it was payable annually; that the general assembly by its appropriation bill of the public revenue for the fiscal years of 1884 and 1885, appropriated and set apart the said sum of $2500 for his compensation; that the attorney-general is peculiarly a constitutional officer; that there is now due to him his salary for the months of November and December 1884, and January and February, 1885, amounting to $833.33 1/3; that he made application to the auditor of public accounts of the state of Virginia, whose duty it is, by law, to issue his warrant on the treasurer of the state for the payment of his said salary; yet the said auditor refused and still refuses to issue his warrant on the treasurer for the payment of the same, or any part thereof; it was ordered by this court on the 10th day of March, 1885, that Morton Marye, auditor of public accounts of the state of Virginia, do appear here on the 17th of March, 1885, and show cause, if any he can, why the commonwealth's writ of mandamus should not be awarded to the petitioner, to compel the said auditor to issue his warrant on the treasurer of Virginia, to pay his said salary to petitioner, for the months of November and December, 1884, and January and February, 1885, with interest thereon from the date of its unlawful detention; and for the payment of such future salary as shall become due and payable to petitioner as said attorney-general until the expiration of his said term of office.

To this rule the said auditor of public accounts, Morton Marye, made return, admitting the due election and qualification of the petitioner, as attorney-general of Virginia, and that the compensation prescribed by law for the said officer is $2500 per annum, payable monthly; that the general assembly has appropriated the said sum for the salary of the said attorney-general for the years 1884 and 1885, respectively; and admitting that he had refused to draw his warrant for petitioner's salary, as claimed, for the months of November and December, 1884, and for January and February, 1885; and that he so withholds the said salary, by virtue of an act of the general assembly, passed November 24th, 1884, making it unlawful for the auditor of public accounts to issue his warrant to petitioner for his said salary until the said petitioner shall have made good to the state the sum of $5412.87, which the special committee of the house of delegates appointed to enquire what sums have been drawn from the treasury by the attorney-general, F. S. Blair, other than his salary, reported overdrawn by him, and due the state. To this return by the said auditor of public accounts, the petitioner demurred; and in said demurrer the said auditor joined, and to said return the petitioner made replication, in which he replied, that the said return was not only insufficient in law, but that, in point of fact, there is no indebtedness on his part to the state, and no report to that effect from the said special committee of three; that the said committee did sit for several days, and took proof in said regard, and failing to agree, two reports were made from said committee-- a majority report, relied on by the auditor, claiming an indebtedness against the petitioner, while the minority report, which is filed with the replication, shows there is no such indebtedness, and that petitioner had not been paid any moneys which he was not entitled to receive by law, and upon the warrant of the auditor of public accounts; that these two reports from this special committee of investigation were returned to the house of delegates, and were not approved or acted upon by the said house of delegates, which alone had ordered the investigation; and that the general assembly adjourned sine die on December 1st, 1884, nearly two weeks after said reports had been made, without any action upon them whatever; that the powers and existence of the said special committee of three, terminated with the final adjournment of the house appointing it; and that the said majority report, relied on by the auditor, became ipso facto null and void, and of no effect whatever; and that the non-action of the legislature upon the elaborate investigation and voluminous evidence taken and reported in the premises, affords strong presumption that there is no indebtedness on the part of the petitioner to the state, and no reason for any action in the matter. Upon these pleadings and facts presented in the record, this court has now to test the legality of the action of the auditor in withholding the salary of a constitutional officer of the state government of Virginia, for an assumed indebtedness, under and by authority of the act of the general assembly, found on page 90 of the Acts of the last of the extra sessions of 1884, entitled " an act to provide for securing to the state money due to it by any of its officers."

Section I. enacts, " that whenever any officer of the state is indebted to the state for money collected by him, or improperly drawn by him, or upon his order, from the public treasury during his term of office, and after demand for the same by the auditor, continues in default in the payment of the same, it shall not be lawful for the auditor to issue to the said officer a warrant for, nor for the treasurer to pay, any part of the salary due or to become due to such officer, until he shall make good his default. The officer whose salary is thus withheld, may, however, file his petition in the circuit court of Richmond city, making the auditor a party thereto, and praying the payment of his salary. The auditor shall make answer to this petition, and the proceedings shall be conducted as a suit in chancery is conducted, except that there need be no proceeding at rules. Upon the proof taken and read in the cause, the court shall decide the fact of indebtedness, and the right of the officer to draw his salary, or the right of the state to credit the same upon the indebtedness of the officer, and a judgment may also be rendered against the officer for any indebtedness that may exist in excess of the amount of the salary then due, and for the application by the state of such salary as may thereafter accrue to the payment of the debt." * * *

Applying to this act of the general assembly the touchstone of the constitution of Virginia, we find, that in its express terms, as well as in its practical operation, it contravenes one of those great and sacred rights which " do pertain to the good people of Virginia, and their posterity, as the basis and foundation of government." Article I., section 13, of the constitution of Virginia declares, " that in controversies respecting property, and in suits between man and man, the trial by jury is preferable to any other, and ought to be held sacred."

The act under review, after putting the salary and constitutional compensation of any and every constitutional officer of the state, at the good or ill-will of a ministerial basement officer, whose tenure of office is, every two years dominated by a casual majority of the legislature, permits the officer whose salary is thus withheld, to file his petition in the circuit court of Richmond city; and imperatively commands, that " the proceedings shall be conducted as a suit in chancery is conducted, except that there need be no proceeding at rules." A suit in chancery is conducted (even where delay is not designed, nor is an object,) by all the intricacies of systematic pleadings and proofs, and arguments, and submission to and consideration by the court, without a jury -- unless the chancellor may need and choose to order the intervention of one to aid and inform his judgment and...