Cotham v. Coffman

• Decision Date: 19 January 1914
• Citation: 163 S.W. 1183
• Parties: COTHAM v. COFFMAN, State Auditor.
• Court: Arkansas Supreme Court

163 S.W. 1183

COTHAM v. COFFMAN, State Auditor.

Supreme Court of Arkansas.

January 19, 1914.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Mandamus by C. T. Cotham to compel L. L. Coffman, as State Auditor, to issue his warrant. From a judgment sustaining defendant's demurrer, plaintiff appeals. Reversed and remanded.

Marvin Harris and E. L. Carter, both of Little Rock, for appellant.

SMITH, J.

This is an appeal from a judgment sustaining a demurrer to the complaint filed by appellant praying that a writ of mandamus be ordered, directed to respondent, as Auditor of State of the State of Arkansas, requiring him to issue to appellant an auditor's warrant in the sum of $250 for his salary as circuit judge of the Eighteenth judicial circuit for the month ending October 31, 1913. The complaint alleged that pursuant to an act of the General Assembly approved March 23, 1911 (Acts 1911, No. 114), creating the Eighteenth judicial circuit of Arkansas, appellant had been elected as the judge of said circuit, which was composed of Garland and Montgomery counties, and that having been commissioned and qualified he had entered upon and was engaged in the discharge of the duties of that office, and that appellee was the duly acting Auditor of the state of Arkansas, whose duty it was to issue to appellant, and all other circuit judges at the end of each month, his warrant on the State Treasurer for the sum of $250, as the salary of all circuit judges was payable monthly and amounted to $3,000 per year for each judge. It was further alleged that petitioner had not received any salary for his services as circuit judge for the month of October either from the state of Arkansas, or from Garland county, and that demand had been made for the warrant in the sum of $250 but had been refused. The court below sustained the demurrer, and appellant declined to plead further, but elected to stand on his complaint, and judgment was rendered on said demurrer dismissing the complaint, and appellant has prosecuted this appeal.

Section 4 of the act creating the Eighteenth judicial circuit reads as follows: "Sec. 4. That the judge and prosecuting attorney for the Eighteenth judicial circuit shall receive the same salary and fees provided by law for circuit judges and prosecuting attorneys throughout the state of Arkansas. Provided, two-thirds of the salaries of the judge and prosecuting attorney of the Eighteenth judicial circuit shall be paid by Garland county, by order of the county court and one-third of the salaries of such offices shall be paid in the same manner as the salaries of other circuit judges and prosecuting attorneys throughout the state of Arkansas are paid."

The circuit judge is a state officer. Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380. And as such his compensation is provided for and limited by section 11, art. 19, of the Constitution of the state, which reads as follows: "Section 11. The Governor, Secretary of State, Auditor, Treasurer, Attorney General, judges of the Supreme Court, judges of the circuit court, commissioner of state lands and prosecuting attorneys shall each receive a salary, to be established by law which shall not be increased or diminished during their respective terms, nor shall any of them, except the prosecuting attorneys after the adoption of this Constitution, receive to his own use any fees, costs, perquisites of office or other compensation; and all fees that may hereafter be payable by law for any service performed by any officer mentioned in this section, except prosecuting attorneys, shall be paid in advance into the state treasury. Provided, that the salaries of the respective officers herein mentioned shall never exceed per annum: For Governor the sum of $4,000; for Secretary of State the sum of $2,500; for Treasurer the sum of $3,000; for Auditor the sum of $3,000; for Attorney General the sum of $2,500; for commissioner of state lands the sum of $2,500; for judges of the Supreme Court, each, the sum of $4,000; for judges of the circuit courts and chancellors, each, the sum of $3,000; for prosecuting attorney the sum of $400.00."

The section of the act creating the Eighteenth judicial circuit which provides for the compensation of the judge has been set out in full, and it is seen that the proviso recites that Garland county shall pay two-thirds of the salary and the state the remaining third. It will not be necessary for us to here decide whether the Legislature can discriminate in fixing the salaries of circuit judges, because no discrimination in the amount of the salary against the judge of that circuit is made, for the act expressly provides that he shall be paid the same salary provided by law for the circuit judges throughout the state. The distinction or discrimination, if any exists, consists in the manner of paying the salary. Can the Legislature impose upon Garland county the burden of paying this salary? Section 5 of article 16 of the Constitution provides that "all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the state." Section 28 of article 7 provides that "the county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case, that may be necessary to the internal improvement and local concerns of the respective counties. * * *" Section 30 of the same article provides: "The justices of the peace of each county shall sit with and assist the county judge in levying the county taxes, and in making appropriations for the expenses of the county in the manner to be prescribed by law; and the county judge, together with the majority of said justices, shall constitute a quorum for such purposes; and in the absence of the county judge a majority of the justices of the peace may constitute the court, who shall elect one of their number to preside. * * *"

The quorum court at its annual meeting makes the appropriations for the expenses of the county, and the order in which, and the purposes for which, these appropriations may be made is provided by section 1499, Kirby's Digest. And section 1500 of Kirby's Digest provides that the total amount of these appropriations for the various purposes shall not exceed 90 per cent. of the taxes levied for that year. May this levying or quorum court for Garland county make an appropriation to pay in part the salary of the judge of the circuit of which it is a part? We think this cannot be done, if this salary is a part of the expense of administration of the state government.

A similar question arose in the case of the County of Shelby v. The Six Judges (Tenn.) reported in 3 Shan. Cas. page 508. That was a case which was well considered, and in which Justice McFarland delivered the opinion of the court, and in which Justice Freeman delivered a concurring opinion, and Chief Justice Nicholson delivered a dissenting opinion. The questions there decided were again raised in the case of Colbert v. Bond and Glisson v. Calloway, reported in 110 Tenn. 370, 75 S. W. 1061, and were again fully considered, and in the opinion there delivered by Justice Shields the court unanimously reaffirmed the opinion of the majority of the court in the case of the Six Judges. The facts in that case were that an act was passed providing for the payment of the salaries of the judges and chancellors of the several courts of Shelby county, and this act provided "that the salaries of the judges and chancellors of the several courts established by this act shall be the same as for the circuit judges and chancellors as established by law, each to be paid by the state as other judges and chancellors are paid; provided, that the county court of Shelby county may appropriate a sum sufficient to increase salaries of said judges and chancellors not exceeding two thousand dollars each, additional thereto." In passing upon the validity of that act of the Legislature, among other things, it was there said: "Is the eleventh section of the act of 1869, in regard to allowing the county court to appropriate a sum not exceeding two thousand dollars to increase the salaries in violation of the Constitution? Did the Legislature have authority to delegate to the county court the power to increase the salaries of the judges, and to levy a tax to pay the appropriation? We think not. By the provisions of the Constitution judges are to receive compensation for their services to be ascertained by law. Article 6, § 7. The law ascertaining this compensation must be enacted by the Legislature, the only lawmaking power. This lawmaking power cannot be delegated to any other body. * * * We are of opinion that the county court had no power to levy a tax to pay the sums appropriated. The power of taxation is the legislative power, and this, by the Constitution, is vested in the General Assembly. They can delegate this power only to the extent authorized by the twenty-ninth section of article 2. This is, the Legislature shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes in such manner as shall be prescribed by law. We are of opinion that the courts must determine whether or not the purpose for which the county may be directed by the Legislature to levy a tax is a county purpose, and, if it be not a county purpose, the law to that extent must be declared void. If we hold that the Legislature are the exclusive judges of whether or not the purpose be a county purpose, this restriction of the Constitution might as well have been omitted, and the power given to the Legislature to authorize the counties to impose taxes without limit. It is the province of the court to decide...