Collins v. State
| Decision Date | 05 April 1892 |
| Citation | 51 N.W. 776,3 S.D. 18 |
| Parties | Collins v. State. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The state constitution (section 9, art. 11) prohibits the auditor from drawing a warrant upon the state treasurer, except in pursuance of an appropriation for the specific purpose first made.
2. When an appropriation made by the legislature for any specific purpose has been exhausted, the action of the auditor in refusing to draw further warrants for that specific purpose is proper and right.
3. The terms of all territorial officers whose offices were created by the laws of the territory, and filled by appointment of the governor of the territory, expired at the end of 10 days after the expiration of the term of office of the governor by whom such appointments were made. Chapter 101, Terr. Laws 1889.
4. On the 2d day of November, 1889, the office of the governor of the territory of Dakota expired by reason of the legal organization of the states of North and South Dakota. Ten days thereafter the offices of all appointive territorial officers expired, except such as were continued by reason of section 4, art. 26, of the schedule of the state constitution.
5. The appointment and acceptance of the office of veterinary surgeon by the plaintiff, under the provisions of the territorial statute in force at the time, and the continuance of the same under the provisions of the state constitution left his office without any fixed term; and a law reducing the salary during the time he is performing the duties of it does not come within the prohibition of that clause in section 3 of article 12 of the constitution which declares that "the compensation of no public officer shall be increased or diminished during his term of office."
6. The territorial statute creating the office of veterinary surgeon fixed the pay for his services at $2,500 per annum. March 10 1890, the first state legislature appropriated for his salary $1,200. The plaintiff served as such veterinary surgeon from the 8th day of March, 1890, to the 8th day of March, 1891 and was paid at the rate of $1,200 per annum. In a suit brought to recover at the rate fixed by the territorial statutes, held, that the legislature had expressed its purpose to reduce, for the time being, the salary of the veterinary surgeon, and that the plaintiff could not recover.
Original action by D. E. Collins against the state to recover for services as state veterinary surgeon. Action dismissed.
Dillon & Preston, for plaintiff. Robert Dollard, Atty. Gen., for the State.
This is an original action brought to recover the sum of $1,300 alleged to be due the plaintiff for services as veterinary surgeon of the state. The complaint alleges that the plaintiff was duly appointed, qualified, and acted as veterinary surgeon; and that by virtue of his appointment, qualification, and acts as such there is due him, as a balance on his salary, between the 8th day of March, 1889, and the 8th day of March, 1890, the sum of $1,300. To this complaint the attorney general files a demurrer, upon the ground that it does not state facts sufficient to constitute a cause of action. The territorial law creating the office of veterinary surgeon is contained in sections 2320-2339, inclusive, Comp. Laws. Section 2333, among other things, provides that The complaint alleges that the plaintiff was appointed on the 3d day of June, 1889, and continued to so act until the 8th day of March, 1891. That from the date of his appointment until the 8th day of March, 1890, he received a salary at the rate of $2,500 per annum, but that since that day, and until the 8th day of March, 1891, he has only received as a salary $1,200, leaving the sum of $1,300 due and unpaid; which claim has been duly presented to the state auditor for allowance, but that said auditor has refused to allow it. The state auditor very justly and legally refused to draw his warrant for the amount claimed in the complaint of the plaintiff. The general appropriations of the legislative session for the current expenses of the state, approved March 10, 1890, provided, among other things, "for the salary" of veterinary surgeon the sum of $1,200, and for expenses $500. Had the state auditor drawn his warrant for more than this amount for the purpose of paying the salary of the veterinary surgeon, he would have violated the direct constitutional prohibition of section 9, art. 11, which says: "No warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made." At the time the demand was made for the allowance and payment of the claim alleged, the legislature had set aside and appropriated only the sum of $1,200 with which to pay the salary. When this sum was exhausted, the state auditor could not draw his warrant for more. Then, so far as the action of the state auditor is concerned, it was eminently proper and right.
But this does not dispose of the main question in the case, viz the obligation, if any exists, of the state to pay the amount claimed. The appointment of the plaintiff was made by a territorial governor, and his qualification and duties were prescribed by a territorial law. The object of the law under which this appointment was made was to prevent, so far as possible, the spread of contagious and infectious diseases among the cattle, horses, mules, and other animals of the territory of Dakota. It is within our judicial knowledge that the territory, as it existed at the time of the enactment of this law, embraced nearly, if not quite, twice as much area as the present state of South Dakota, out of which territory this state was created. The duties imposed upon the veterinary surgeon at the time of his appointment were double what they were after the state was organized, there being but one veterinary surgeon for the territory of Dakota. When the territory was divided and organized into two states, plaintiff became a citizen of South Dakota, and ineligible to hold or exercise the duties of an office of this nature outside the limits of that state. The enabling act of congress, by which the territory of Dakota was divided, and the two states of North and South Dakota were created and organized, declared that "all laws in force made by said territory, at the time of admission into the Union, shall be in force in said states, except as modified or changed by this act, or by the constitutions of the states, respectively." The territorial enactment under which the plaintiff was appointed was not modified, changed, or nullified by either the act of congress or the constitution of this state, and remained and was in force, so far as its general features were concerned, after the creation of this state. The state government became operative November 2, 1889. The terms of all appointive territorial officers expired on that day, except such as were saved by section 4, art. 26, of the schedule to the constitution. That the machinery of the state government might not become inoperative, many officers of the old territory were by the above section allowed to remain in office. When the duties and labors were ostensibly the same as under the territorial form of government, it was not unjust that such officers should be allowed the same compensation for their services as provided for in the territorial law. But in cases where the incumbent of a territorial office, under a territorial law, was required to perform the duties over the whole territory of Dakota, as it existed before the division, and he acted in the same office, when the duties and labor were greatly reduced and lessened, after division, this reason or principle could not prevail. The law-makers in the enactment of this law, and in fixing the compensation for the services of the officer under it, no doubt had in view, among other things, the great extent of the territorial area over which the duties should be performed, the amount of labor requisite, the number of cattle, horses, etc., it might be necessary to inspect, and time expended in the faithful discharge of the duties of the office. This, at the time and under the condition of things as they existed, was thought to be worth $2,500; but, when the territory was divided into nearly equal parts, it would be inequitable and unjust to hold that the officer was entitled to the same compensation as before. But the contention of the plaintiff is that, under the law of his appointment, the term of his office was two years, and that by reason of this the legislature of the state had no power, under the constitution of the state, to diminish his salary or compensation during that period. The plaintiff's complaint states he was appointed to the office of veterinary surgeon on the 3d day of June, 1889. At the time of such appointment there was a territorial statute in full force and effect, which is as follows: "That hereafter the terms of office of all territorial officers *** whose offices are created by the laws of this territory, and filled by appointment of the governor, with or without the advice and consent of the legislative council, shall expire at the end of ten days after the expiration of the term of office of the governor by whom such appointments were made." Section 1, c. 101, Sess. Laws Dak. T. 1889. This chapter contains a clause expressly repealing "all acts, and parts of acts, conflicting with these provisions." The complaint shows that the plaintiff was holding an office created by the laws of the ...
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