Civil Serv. Comm'n of Mich. v. Auditor Gen., Motion No. 361.

Citation302 Mich. 673,5 N.W.2d 536
Decision Date08 September 1942
Docket NumberMotion No. 361.
CourtSupreme Court of Michigan


Original mandamus proceeding by the Civil Service Commission of the State of Michigan and George J. Burke, and others, as members thereof, against Vernon J. Brown, to compel defendant as Auditor General of the State of Michigan to pay in full certain disbursements which plaintiffs had approved.

Writ issued.

Before the Entire Bench, except WIEST, J.

Dean W. Kelley, and Robert H. Dunn, both of Lansing, for plaintiff Civil Service Commission.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Daniel J. O'Hara, Asst. Atty. Gen., for defendant.

CHANDLER, Chief Justice.

The plaintiffs, who are the Civil Service Commission of the State of Michigan and the four individual members thereof, who are suing in their official capacity, ask that a writ of mandamus be granted against the Auditor General of this state requiring him to pay in full certain disbursements which they have approved. The answer of the Auditor General shows for cause a lack of authority on his part, by reason of certain legislation, to draw and issue his warrants on the State Treasury for the full sums approved by the Commission.

The Commission was created by a Constitutional amendment, known as the ‘Civil Service Amendment,’ adopted by the electorate in November, 1940, and pursuant to its terms became effective January 1, 1941. It is known as Article VI, Section 22, of the Constitution of 1908, and the pertinent parts are as follows:

‘There is hereby created a non-salaried civil service commission to consist of four [4] persons, * * *. This commission shall supersede all existing state personnel agencies and succeed to their appropriations,records, supplies, equipment, and other property.

‘The commission shall classify all positions in the state civil service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services. * * *

‘To enable the commission to execute these powers, the legislature shall appropriate for the six [6] months' period ending June 30, 1941, a sum not less than one-half of one [1/2 of 1] per cent, and for each and every subsequent fiscal year, a sum not less than one [1] per cent, of the aggregate annual payroll of the state service for the preceding fiscal year as certified to by the commission.

‘After August 1, 1941, no payment for personal services shall be made or authorized until the provisions of this amendment have been complied with in every particular. * * *’

In pursuance of the amendment, a classification plan and compensation schedule was adopted by the Commission on July 1, 1941, in which, inter alia, provision was made for increases of compensation with respect to certain positions in the State Civil Service affecting especially certain employees thereof whose positions require technical knowledge, skill and experience.

By Act No. 22, Pub.Acts 1942, 2nd Ex.Sess., appropriations were made for deficiencies and supplemental appropriations were made for the payment of personal services for certain state institutions, departments, commissions and boards, for the fiscal year ending June 30, 1942, and for the fiscal year ending June 30, 1943. This act includes the following provision and limitation:

Sec. 3. On and after the effective date of this act it shall not be competent for the auditor general to issue his warrant for any salary or wage for any state employe in any state department, board, institution, commission, or other state agency for which deficiency appropriations are made in this act if such salary or wage includes any increase beyond the salary or wage existing at July 1, 1941, for the position occupied by such employe on or after the effective date of this act: Provided, however, That this section shall not be applicable to such increases as have been specifically provided for by the legislature, or to any salary or wage equivalent to $195.00 per month or less.’

In conformance with the foregoing provision, the Auditor General has refused to issue payroll warrants to cover the compensation of the approximately 75 state employees whose compensation increases were ordered and certified by the Civil Service Commission, the employees affected being those for whom the commission fixed compensation in excess of $195 per month.

The issues as presented by counsel are:

1. Is a legislative appropriation necessary, or does the setting of compensation rates by the Commission automatically act as an appropriation which does not require legislative initiation?

2. If legislative initiation of appropriations for personal services is necessary, is the restriction contained in Section 3 of the aforesaid deficiency bill constitutional?

To these issues a third has been suggested from the bench.

3. Is the Commission a proper party plaintiff to request mandamus proceedings for the benefit of the employees?

Because we determine that under certain circumstances the Commission is a proper party to petition for a writ of mandamus, we shall discuss the first two issues, and then give our reasons for our answer to the third question.

I. Art. X, § 16, Mich.Const.1908, reads, ‘No money shall be paid out of the state treasury except in pursuance of appropriations made by law.’ It is agreed that the weight of authority holds this phrase does not restrict appropriations to legislative enactments, but that there can be a constitutional appropriation apart from any action by the legislature. Further, defendant seems to concede that the provision in the amendment for the sum of one per cent of the aggregate annual payroll of the state service for the preceding fiscal year constitutes a continuing appropriation ‘made by law’, for which Legislative initiation is not required.

But the commission contends that the authorization to ‘fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services,’ is also a continuing appropriation and relies on Thomas v. Owens, 1853, 4 Md. 189, and subsequent cases in accord, including Windes v. Frohmiller, 38 Ariz. 557, 3 P.2d 275, 277. However, in both of the above cited cases, and all cited cases in accord, the constitutional provision named a definite sum. The Maryland Constitution, art. 6, § 1, names certain public officers ‘who shall receive an annual salary of two thousand five hundred dollars,’ and the Arizona Constitution, art. 6, § 10, stated, ‘shall each receive four thousand dollars per annum.’

The Arizona court said: We could rest the case here, but because of the fundamental principles involved we prefer to refer to the authorities, nearly all of which support our conclusion, which is that where the Constitution creates an office and declares that the officer shall receive his salary, that amounts in law to an appropriation, and no legislative action is necessary to enforce payment of such salary.’

In 88 A.L.R. 1054, it is stated that, ‘This rule has been held subject to the limitation that it applies only to officers whose salaries are fixed by the Constitution, and not to those whose compensation is left to the discretion of the Legislature.’ The authorization contained in the Civil Service Amendment, although not leaving the amount of the salaries to the discretion of the legislature, does leave the sum to be appropriated discretionary with the legislature, and is not sufficiently fixed to be a constitutional appropriation. That which was said in Re Opinion of the Justices, 237 Ala. 377, 186 So. 731, 733, is appropriate:

‘It is the law that an act which creates an office and fixes a definite salary by law carries an appropriation to pay the salary from time to time. Riggs v. Brewer, 64 Ala. 282. This because the law fixes the amount which the treasurer shall pay from time to time, but the act in qeustion merely authorizes the governor to fix salaries of certain officials, not exceeding a fixed maximum, and authorizes the department heads, with the approval of the governor, to fix the salaries of subordinate officers and employes in the respective departments.

We are, therefore, of the opinion that the act is not within the rule of Riggs v. Brewer, supra, and does not carry an appropriation authorizing payment from the state treasury.’

However, the Commission further contends then that this constitutional appropriation is implied, or should be implied, in the light of the history of the times which culminated in the passage of the Civil Service Amendment, and the avowed purpose of the proponents of this amendment.

Without delving into the Michigan political history that led to the submission to the people of this amendment in 1940, it is sufficient to quote the following to understand the reasons, intent and motives of the citizens of this State in adopting the same:

‘The unlimited authority of the Chief Executive in public office to appoint and remove all subordinate officials, which prevailed throughout this country during the first century of its existence, resulted in the general adoption of the ‘spoils system,’ under which public office was made to be the reward for political work, with the resulting evils of inefficiency, extravagance, the interruption of public business by place hunters, corruption of the electoral franchise, and political assessments.' 10 Am.Jur. 921.

With the above in mind, the following rule is appropriate: ‘The language of a constitutional amendment should be read in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then construed, if there be therein any doubtful expressions, in a way, so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.’ Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 449, 44 L.Ed. 597.


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