Dorman v. Sargent

• Decision Date: 02 July 1915
• Docket Number: No. 1799.,1799.
• Parties: DORMANv.SARGENT, STATE AUDITOR.
• Court: New Mexico Supreme Court

20 N.M. 413

150 P. 1021

DORMAN

v.SARGENT, STATE AUDITOR.

No. 1799.

Supreme Court of New Mexico.

July 2, 1915.

Syllabus by the Court.

Earnest v. Sargent (No. 1800) 150 Pac. 1018, followed as to the passage of House Bill No. 294, creating the office of state traveling auditor.

Chapter 59, Laws 1915, Appendix Code 1915, creating the office of state traveling auditor, construed in connection with section 2597, Comp. Laws 1897, and sections 2 and 3 of chapter 32, Laws 1889, held to constitute a continuing appropriation for the salary of the state traveling auditor.

Appeal from District Court, Santa Fé County; Merritt C. Mechem, Judge.

Injunction by Harry H. Dorman against William G. Sargent, as State Auditor. From a judgment for defendant, plaintiff appeals. Affirmed.

Passage over the Governor's veto of chapter 59, Laws 1915, creating the office of traveling auditor, held not invalid as against an objection that it was passed after expiration of the time for the sitting of the Legislature, where the journal showed its passage in time.

E. C. Wade, Jr., and J. H. Crist, both of Santa Fé, for appellant.

F. W. Clancy, Atty. Gen., and H. S. Bowman, Asst. Atty. Gen., for appellee.

PARKER, J.

This is a proceeding for an injunction brought by the plaintiff against the state auditor. The complaint in the court below alleged, in substance, that the plaintiff is a citizen of the state, and a resident of the city of Santa Fé, county of Santa Fé, and that he is a taxpayer in said county and state, and contributes annually to the treasury of the state as taxes for said purposes a large sum of money; that he brings this action for and on behalf of himself and other taxpayers of the state, all of whom, he alleges, are similarly situated; that the defendant is the state auditor of the state; that heretofore the Legislature passed a bill which is known as House Bill No. 294; that said Legislature convened at noon on the 12th day of January, A. D. 1915, and that said session terminated by law at the hour of 12 o'clock of the 12th day of March, 1915; that on the 8th day of March said bill was presented to the Governor of the state for his approval, and that on the 12th day of March the said Governor returned said bill to the House of Representatives, where it originated, with his objections; that thereafter, in the forenoon of the said 12th day of March, the said bill was approved by two-thirds of the members of and voting in said House of Representatives, the Governor's objections to the contrary notwithstanding; that said bill was thereupon transmitted by the said House to the Senate of said Legislature, and that afterwards, at some time between the hour of 12:40 p. m. of said day and the hour of 2 p. m. of said day, the said bill was approved by the vote of two-thirds of the persons theretofore constituting the membership of the said Senate, the Governor's objections to the contrary notwithstanding; that there is not now, nor has there been at any time since the close of said session, a journal of the proceedings of said Senate on file with the secretary of state; that on the 1st day of April, 1915, the defendant, the state auditor, under the provisions of said bill pretendedly appointed one A. G. Whittier as state traveling auditor, and one P. A. Hall as assistant traveling auditor, and one Earl Wiley as assistant traveling auditor, and one Edith Wileman as stenographer of the office of state traveling auditor; that the defendant holds out and threatens that he will, on the 30th day of April, 1915, draw warrants upon the treasurer of the state for large sums of money under the alleged authority of said alleged law, as salaries for the payment of said alleged state traveling auditor, his assistants and said stenographer, and will deliver said warrants to said persons; and that the said alleged law is not a valid law in this behalf, in that the subject of said alleged law is not clearly expressed in the title thereof, and in that there is no valid power or authority conferred by said alleged law on the defendant as state auditor for the drawing and delivery of the said warrants for the payment of said pretended salaries. A demurrer was interposed to the amended complaint raising all of the points which will be discussed in the opinion, and was sustained by the trial court, and the plaintiff has appealed.

[1] 1. It is argued that House Bill No. 294 never became a valid act of the Legislature, because it was passed over the Governor's veto after the expiration of the time for the sitting of the Legislature. We have discussed this point in the case of Howell Earnest, as Traveling Auditor and Bank Examiner of the State of New Mexico, v. William G. Sargent, 150 Pac. 1018, in an opinion just handed down, and we have held that the act was passed within the time prescribed by the Constitution.

[2] 2. It is contended by plaintiff that the act in question is not sufficient to confer authority upon the state auditor to pay the salaries for the officers holding the offices created thereby. He argued that the act fails to disclose a legislative intent to make an appropriation: First, on account of the language used therein; and, second, because an item in the general appropriation bill passed at the same session of the Legislature, but vetoed by the Governor, of which he asks the court to take judicial notice, negatives an intent on the part of the Legislature to have made such an appropriation in House Bill No. 294. The language used in House Bill No. 294 (Laws 1915, c. 59) is:

“The state traveling auditor shall receive an annual salary of $2,400 and his actual and necessary traveling expenses while in the discharge of his duties.”

The plaintiff does not contend, as we understand the argument, that we might not, under some acts creating offices, fixing salaries, and providing the time and manner of payment, and specifying the fund out of which the salary is to be paid, properly hold that such acts would constitute a continuing appropriation, and that no general appropriation would be required. Counsel argue, however, that this act, merely creating the office, and declaring the amount of salary which the officers shall receive, and failing to specify the fund out of which the salary is to be paid and the manner and time of payment, fails to indicate a legislative intent to make the appropriation for the salaries in the same act. The argument has much force. If this act had provided that the salary of the state traveling auditor and his assistants and clerks should be paid monthly out of the general salary fund in the same manner as other public officers, there could be no doubt that the Legislature intended then and there to make the appropriation for the payment of the salaries. The absence of such a provision in the act throws much doubt upon the legislative intent. But it is a cardinal rule that all legislation is to be construed in connection with the general body of the law, and in this case we find several sections of the statute which greatly aid and add to the words of House Bill No. 294. By section 2597, C. L. 1897, it is provided that the salaries of all officers provided by law shall be paid out by the treasurer of the territory upon the warrant of the auditor. This is an old statute, having been passed in 1852, and has been upon the statute books ever since, and was re-enacted in the Code of 1915 as section 5338. In 1889 an act was passed establishing the fiscal year for the territory. Section 1 of that act is compiled as section 4015, C. L. 1897. The original act was chapter 32, Laws of 1889. Section 2 of that act provides for the establishment of certain funds, among which is the salary fund. In section 3 of the act it is provided that the salary fund shall be used only for the purpose of paying all salaries provided by law. For some reason, which we do not understand, the compilers of the Compiled Laws of 1897 saw fit to regard these sections 2 and 3 of chapter 32 of the Laws of 1889 as either obsolete or repealed, but we have searched in vain for any repeal of the same, and know of no reason why they should be regarded as obsolete. Constant reference is made in subsequent legislation to this salary fund, and it is preserved and maintained by the auditor and treasurer down to the present time. We therefore treat them as still in full force and effect. That being the case, when House Bill No. 294 was passed, it was passed in view of these two sections, and they should be construed in connection with the provisions of House Bill No. 294 under consideration. This act then, in legal effect, is to be read as follows:

“The state traveling auditor shall receive an annual salary of $2,400.00 and his actual and necessary traveling expenses while in the discharge of his duties, and shall be paid his said salary out of the salary fund, upon the warrant of the state auditor, by the state treasurer.”

It is true that no provision exists as to just when this salary shall be paid, whether monthly, quarterly, or at the end of the year, but we regard this circumstance as entirely immaterial. If the state traveling auditor is entitled to an annual salary of $2,400, it is a mere matter of administration of the auditor's and treasurer's office as to whether they shall pay him monthly or quarterly, or at the end of the year. A taxpayer has no interest as to just when his salary shall be paid, so long as the officer is not overpaid, or paid prior to the rendition of his services. In view of this situation, it seems clear that House Bill No. 294, construed in connection with the former statutes as above pointed out, amounts to a continuing appropriation for the salary of the state traveling auditor.

Similar statutes have been held in some of the states to amount to an appropriation. Thus in Nichols v. Comptroller, 4 Stew. & P. (Ala.) 154, the statute allowed an annual salary of $1,749, payable quarter yearly out of any...