Griffin v. Rhoton

• Decision Date: 16 December 1907
• Citation: 107 S.W. 380,85 Ark. 89
• Parties: GRIFFIN v. RHOTON
• Court: Arkansas Supreme Court

107 S.W. 380

85 Ark. 89

GRIFFIN v. RHOTON

Supreme Court of Arkansas

December 16, 1907

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor affirmed.

Affirmed.

Baldy Vinson, for appellant.

1. Under the Constitution the maximum salary allowed any officer in this State is $ 5,000. Const. (1874), art. 19, § 23. Under the first constitution of the State, the prosecuting attorney was ranked as a State officer. Art. 6, § 13, Const. 1836. In the matter of impeachment he was and is classed as a State officer. Art. 4, § 25, Const. 1861; Art. 4, § 24, Const. 1874. Likewise, in the matter of payment of salaries. Gantt's Digest, §§ 5373-5398; art. 19, § 11, Const. 1874. The prosecuting attorney is, therefore, in the matter of payment of his salary, a State officer, and, in so far as pertains to his duties, a county officer; and the fact that the term "district office" does not appear in the clause of the Constitution limiting salaries (art. 19, § 23 Const.) does not argue that he is exempt from its provisions. This section of the Constitution, taken in connection with art. 16, § 4, Id., clearly shows that the office of prosecuting attorney is included in the limitation of salary fees and perquisites to a maximum of $ 5,000.

2. The constitutional provision limiting the salary to five thousand dollars is self-executing. A general maximum of salary and fees is fixed for "all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person." Art. 19, § 23, and art. 16, § 4, Const. Prohibitive and restrictive provisions in constitutions are self-executing, and may be enforced independent of legislative action. 26 Am. Rep. 90; 60 Ark. 325; 11 P. 27; 75 Ga. 782; 124 Ill. 655; 73 Ky. 725; 24 La.Ann. 214; 7 How. (Miss.), 14; 83 Mo. 488; 4 Neb. 216; 50 N.W. 632; 4 Hump. (Tenn.), 259. See also, 55 Ala. 332; 7 Mich. 488, 67 N.C. 293; 31 Tex. 677; 22 S.W. 552. The statutes also, in conformity with the constitutional provision, fix the minimum salary at $ 5,000. Kirby's Digest, §§ 3543-3554. And it is immaterial that the prosecuting attorney is not specially mentioned, nor the term "district officer" used, in these sections, since a prosecuting attorney certainly comes within the list of officers, "or other persons" in the employ of the State. That, as relates to his duties, a prosecuting attorney is a county officer, see Kirby's Digest, § 6387; Stat. Vermont, 1894, § 57; 134 N.Y. 1; 31 N.E. 322; 95 Ia. 410; 64 N.W. 290.

3. Since the prosecuting attorney in the matter of the payment of his salary is classed as a State officer, and all other State officers are limited to a maximum per annum compensation of $ 5,000 and their salaries are actually fixed at amounts less than that, to permit him to receive a greater compensation than the maximum fixed would be a discrimination in favor of the prosecuting attorney not contemplated by the framers of the Constitution, and such a construction is contrary both to the meaning and spirit of the law. Art. 15, § 6, Const. 1868. He could receive no more than the maximum yearly compensation. 25 Ark. 235; Kirby's Digest, § 1458; 71 N.H. 96; 32 Mo. 446; 45 N.Y. 1018; 23 Mont. 351; 63 P. 857; 8 Mont. 396. And must pay the excess into the proper treasury. Kirby's Digest, § 3549.

4. Equity has jurisdiction to compel an accounting and a restitution of the excess, and appellant as a citizen and taxpayer of the county has the right to maintain the suit. Art. 16, § 13, Const.; Kirby's Digest, § 5485; Id. 7199; 72 Ind. 336; 3 Cent. Dict. "Exaction"; 12 Me. 94; 2 Am. Dec. 291; 1 Cent. Digest, col. 594, § 63 (a); Id. col. 536, § 13 (a); 72 Ill. 364; 45 Ga. 163.

W. L. Terry and De E. Bradshaw, for appellee.

1. A prosecuting attorney is not an "officer of the State," in the sense those words are used in art. 19, § 23, Const.; neither is he a county officer, since such an officer must reside in the county in which he holds office. Art. 19, § 4, Const. As to who are county officers, see art. 7, § 46. District officers are clearly recognized by the Constitution. Art. 19, § 4, supra; art. 7, § 24; Schedule, § 3, Const.; Amendment No. 3, Const. And the Schedule to the Constitution also indicates who are State officers. Schedule, § 17. The power and authority of the prosecuting attorney are restricted to the district in which he is elected. The words "officer of the State" refer to State officers proper. If the framers of the Constitution had intended that expression to be understood in the sense of "officers under authority of the State," or "officers in the State," they would not have used the expression "nor of any county," etc. Supporting the view that he is neither a State nor a county, but a district officer, see, 46 Ind. 355; 135 Mo. 325; 67 P. 287; 100 Ill. 94; 57 S.W. 35; 42 S.W. 534; 44 Mich. 89; 54 Ala. 226; 90 Mo. 231. The Constitution, art. 8, § 52, names the county court as the tribunal for contesting the election of a county officer, while the statute provides that a contest of election of a prosecuting attorney shall be in the circuit court. Kirby's Digest, § 2856. See also, Id., § 2860.

2. If the constitutional provision relied on by appellant is applicable to the office of prosecuting attorney, it is not self-executing. Legislative construction, while not binding upon the court, is at least persuasive, and that the Legislature has not judged the provision to be self-executing is shown by the act passed at its first session after the adoption of the Constitution. Kirby's Digest, §§ 3543-3554. No method is there provided whereby he could account to any one for fees collected by him. Cooley's Const. Lim. (4 Ed.), 101; Id. 110; 24 Cal. 539; 32 Ark. 494; 67 Mo. 256; 34 Ark. 331; 32 Ark. 26; 60 Ark. 332; 65 Ark. 315; 52 Ala. 231; 24 La. An. 214; 10 F. 497.

3. Appellant was without authority or legal capacity either as a citizen or taxpayer to maintain this suit. (a) The excess over $ 5,000, if any, was not an illegal exaction, within the meaning of art. 16, § 13, Const. The prosecuting attorney's fee provided for in case of conviction is not an illegal exaction, even against the party who paid it. (b) To maintain a suit under the foregoing provision, the plaintiff must show some illegal exaction affecting him in common with all others in whose behalf the suit is brought. Kirby's Digest, § 990. See also, Id., §§ 6392, 6403, 7162 et seq., 7173. (c) Section 5485, Kirby's Digest, has no application to an action for recovery of an excess of fees due the State or county, that section having reference only to tax levied in a city or town without authority of law. Section 7199, Kirby's Digest, does not apply. See sections 7197-8. (d) A bill for an accounting must be brought either in the name of the proper officer or trustee or in that of the party beneficially interested in the accounting to be had. Appellant is neither. If the excess should go into the State treasury, the Attorney General is the proper officer to bring the suit, which should be in the name of the State. If it should go into the county treasury, the suit should be brought in the name of the State for the use of the county Kirby's Digest, § 990. See also Id., §§ 5999, 6062; 7 Cowen, 342; 14 Id. 344; 16 Ga. 119; 10 Vt. 570; 2 Ala. 406; 10 F. 425. (e) If prosecuting attorney is a county. officer, he should have been proceeded against, if liable at all, under § 3553, Kirby's Digest. The circuit court would need no petition nor motion to call forth a mandamus. Kirby's Digest, § 5158; 31 Ark. 264; 30 Ark. 607. See also, 14 Ark. 172.

OPINION

MCCULLOCH, J.

Section 23, art. 19, of the Constitution of this State reads as follows: "No officer of this State, nor of any county, city or town shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation."

Appellee is the prosecuting attorney of the sixth judicial circuit, composed of Pulaski and Perry counties, and appellant, a citizen and taxpayer of Pulaski County, seeks, by suit in chancery, to compel appellee to account for and pay into the State treasury, and the treasuries of said counties proportionately, the fees and emoluments of his office in excess of five thousand dollars.

The chancellor sustained a demurrer to the complaint, and defendant appealed.

Three questions are presented in the case, which will be considered in the order named:

First: Does the constitutional provision in question apply to the office of prosecuting attorney?

Second: Is the provision of the Constitution self-executing and enforcible without further legislation on the subject?

Third: Has appellant the legal right, as a citizen and taxpayer of the county, to maintain the action?

This court is of the opinion that the constitutional provision in question applies to the office of prosecuting attorney. It is a State office within the meaning of this provision. A prosecuting attorney is, according to the requirements of the Constitution (section 25, art. 7), elected by the qualified electors of the judicial circuit for which he is to serve and must be a resident of that circuit. Nevertheless he is elected as an officer of the State. He draws a salary from the State as one of its officers, which is provided for in a section of the Constitution grouping together the other State officers (section 11, art. 19), and he is the representative of the State in all criminal prosecutions in his circuit. It is true that he is, by statute, made the representative of each county in his circuit in all litigation in which the...