Braithwaite v. Cameron

• Decision Date: 17 January 1895
• Citation: Braithwaite v. Cameron, 3 Okla. 630, 1895 OK 2, 38 P. 1084 (Okla. 1895)
• Parties: ARTHUR BRAITHWAITE v. E. D. CAMERON, Auditor of the Territory of Oklahoma
• Court: Oklahoma Supreme Court

1895 OK 2

38 P. 1084

3 Okla. 630

ARTHUR BRAITHWAITE v. E. D. CAMERON, Auditor of the Territory of Oklahoma

Supreme Court of Oklahoma

Decided: January 17, 1895

Original Proceeding in Mandamus.

The plaintiff was employed as a stenographer in the service, and under authority of, the last legislature of the territory.He presented his account and voucher for services to the territorial auditor for allowance and payment from the treasury of the territory.The audit of the account was declined upon the ground that the legislature was forbidden, under the laws of the United States, to expend funds of the territory for any kind of legislative expenses.Whereupon the plaintiff applied for a peremptory writ of mandamus commanding the auditor to audit the account and authorize its payment.

Syllabus

¶0 TERRITORIAL LEGISLATURE--May Provide Compensation Out of Territorial Treasury for Stenographers and Other Subordinate Employes.The territorial legislature has no power to provide out of the territorial treasury any compensation for the governor, secretary of the territory or members or officers of the territorial legislature other than that which is provided for them by the laws of the United States, but the legislature of the territory is not prohibited from providing for the payment out of the territorial treasury of compensation to stenographers or other subordinate employes, whose services may be a part of the requisite and necessary expenses of the legislature, and for whose employment the appropriation for the legislative expenses of the territory made by congress out of the treasury of the United States is not adequate.

Green & Strang, for petitioner.

C. A. Galbraith, Attorney General, contra.

MCATEE, J.

¶1 It is provided by § 6 of the Organic Act--

"That the legislative power of the territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States, but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents, nor shall any law be passed impairing the right to private property, nor shall any unequal discrimination be made in taxing different kinds of property, but all property subject to taxation shall be taxed in proportion to its value: Provided, that nothing herein shall be held to prohibit the levying and collecting license or special taxes in the territory, from persons engaged in any business therein, if the legislative power shall consider such taxes necessary."

¶2 The power herein given to the legislature includes, subject to certain specified limitations, "all rightful subjects of legislation."Subject to those limitations, the authority given is clear, full, positive and complete.It includes the power of taxation, subject only to the reservations that no tax shall be imposed on the property of the United States, and that all property subject to taxation shall be taxed in proportion to its value, and without unequal discrimination.The full power of taxation residing in the legislatures of the several states is carefully preserved in the proviso that nothing contained in the limitations which "shall be held to prohibit the levying and collection of special taxes in the territory, from persons engaged in any business therein, if the legislative power shall consider such taxes necessary."

¶3 The power to legislate upon all "rightful subjects of legislation" is, subject to these limitations, as extensive as that which resides in the legislatures of the several states.One of the subjects of legislation upon which the legislature of a state may rightfully act is the provision for its expenses, and all the matters which it may find is necessary to legislate upon in order to preserve its own lawful existence and usefulness, and to levy taxes therefor, and to appropriate them to this purpose.The power to so legislate is included among the "rightful subjects of legislation," unless it be prohibited by "the constitution and laws of the United States."

¶4 And being so included and given, we do not think that it can be inferred away by any other law of the United States of doubtful significance.

¶5The respondent cites as prohibiting such legislation the law of the United States passed May 18, 1842, contained in section 1888 of the Revised Statutes of the United States, providing that "no legislative assembly of a territory shall, in any instance or under any pretext, exceed the amount appropriated by congress for its annual expenses."

¶6 In enacting this law was it the purpose of congress to protect the treasury of the United States against any greater liability than that for which congress had provided in the previous appropriation?Or was it the purpose to provide a measure of protection in behalf of the people of the territory against their own legislature, thus prohibiting that legislature from appropriating out of the fund arising from territorial taxation such compensation to its members, officers and employes as the appropriation previously made by the congress of the United States for legislative expenses of the territory was found to be inadequate to meet?

¶7 If the purpose was simply to make it plain that the treasury should not be liable to any greater extent than the amount already appropriated by congress for the annual expenditure by the legislature of the territory, the terms of the statute are adequate and appropriate.Upon the contention, however, that the purpose of the statute was to forbid the appropriation of any portion of the fund arising from territorial taxation to the payment of compensation to its members, officers or employes, its terms are obscure and doubtful, and are, in our judgment, insufficient and inadequate to negative and to destroy the effect of the grant, contained in the Organic Act, of "legislative power extending to all the rightful subjects of legislation."

¶8 The origin, title, construction and purpose of the statute of May 18, 1842, sustains this interpretation.It is an extract from one of the appropriation bills of that year, found in vol. 5 United States Statutes at Largeat p. 475, which is an act making appropriations for the civil and diplomatic expenses of government for the year eighteen hundred and forty-two.The act provides in two hundred and twelve items, for as many different appropriations to be made out of the treasury of the United States.Like all the civil appropriation bills, it provides for the payment of the expenses of the various departments of the government--for the department of state, treasury, war, navy, postoffice, surveyors, United States mint, and for many other expenses in the civil and diplomatic service.It also provides for the payment of various expenses of the territorial governments of Wisconsin, Iowa and Florida.By items from No. 108 to No. 112, inclusive, compensation is provided for the governor, judges, secretary, contingent expenses, and compensation for legislative expenses--twenty thousand dollars for the territory of Wisconsin from the treasury of the United States.By items from No. 118 to No. 122, inclusive, an appropriation is made for similar expenses, and in like terms, for the governmental expenses of the territory of Florida, from the treasury of the United States.By items from No. 113 to No. 117, inclusive, appropriations of a like character are made from the United States treasury for the territory of Iowa.By item No. 117, $ 2,175 are provided as compensation for the expenses of the legislative assembly of that territory.And it is then, by the same item, further significantly provided, by a proviso not found in the appropriations for the territories of Wisconsin and Florida, as follows:

"And for the arrearages of expenses for the legislative assembly of the territory of Iowa, for the present and previous years, the accounts for which shall first be audited and allowed by the proper accounting officers of the treasury, thirteen thousand four hundred and twenty-one dollars: Provided, That no part of this appropriation shall be used for the payment of the members of the said legislative assembly for per diem wages, mileage or extra services, or for stationery for their individual use, nor for any other purpose not authorized by the act of congress establishing the territory of Iowa: And provided, further, That the legislative assembly of no territory shall, hereafter, in any instance, or under any pretext whatever, exceed the amount appropriated by congress for its annual expenses."

¶9 The closing proviso of that item is the general prohibition which is inserted in the Revised Statutes of the United States.It redresses a grievance which is stated in the appropriation for the legislature of the territory of Iowa alone, and the grievance is stated in the provision which is made in the former part of the section for the payment of "arrearages of expenses for the legislative assembly of the territory of Iowa, for the present and previous years * * * $ 13,421" out of the treasury of the United States.No mention is made in these items or in any part of the act, of any grievance arising from the over-taxation of or misappropriation of funds belonging to the territory of Iowa, or of any other territory.

¶10 The intention of congress in passing this act must dominate its construction.Chancellor Kent said: "In the exposition of a statute the intention of the law maker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter.When the words are not explicit the intention is to be collected from the context; from the occasion and necessity of the law; from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good...