Hailey v. Huston

• Decision Date: 15 November 1913
• Citation: 25 Idaho 165,136 P. 212
• Parties: JOHN HAILEY, Librarian of the STATE HISTORICAL SOCIETY, Plaintiff, v. FRED L. HUSTON, State Auditor, Defendant
• Court: Idaho Supreme Court

136 P. 212

25 Idaho 165

JOHN HAILEY, Librarian of the STATE HISTORICAL SOCIETY, Plaintiff, v. FRED L. HUSTON, State Auditor, Defendant

Supreme Court of Idaho

November 15, 1913

WRIT OF MANDATE-STATE AUDITOR-APPOINTIVE OFFICERS-SALARY OF-INCREASE OF SALARY-GENERAL APPROPRIATION ACT-CONSTITUTIONAL LAW-STATUTES-TITLE TO-AMENDMENT OF.

1. Under the provisions of sec. 851, Rev. Codes, as amended by Sess. L. 1911, p. 117, the salary of the librarian of the State Historical Society is fixed at $1,200 per annum, to be paid in monthly payments.

2. The librarian of the State Historical Society is an appointive officer and not a constitutional officer.

3. Where the legislature in a general biennial appropriation act makes a larger appropriation for salaries for certain officers than the statute fixing the salary of such office provides, the salary of such officer is governed by the statute fixing the salary.

4. Under the provisions of sec. 15, art. 3, of the constitution no law shall be passed except by bill.

5. Sec 16 of said article 3 provides that every act passed by the legislature shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.

6. Sec 18 of said art. 3 provides that no act shall be revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length.

7. The title to the general appropriation act for the biennial period beginning on the first Monday in January, 1913 (Sess L. 1913, p. 637), is as follows: "An act making appropriation for the payment of salaries and compensation of officers and employees of the state of Idaho and the general expenses of state government and the supporting and maintaining of the state institutions for the period commencing on the first Monday of January, 1913, and ending on the first Monday of January, 1915, and appropriating certain sums specified for the relief of persons enumerated herein; and declaring an emergency," and in no manner states that the salary of any person or persons is intended to be increased by said act.

8. Held, that the salary referred to was not increased by the general appropriation act and that the statute fixing the said salary was not amended or suspended by said appropriation act.

Original application in this court for a writ of mandate to the state auditor to compel him to draw his state warrant for a certain sum over and above the salary fixed by sec. 851, as amended, as salary for the librarian of the State Historical Society. Alternative writ quashed and peremptory writ denied.

Alternative writ of mandate quashed and peremptory writ denied. No costs awarded.

E. G. Davis, for Plaintiff, cites no authorities.

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assts., for Defendant.

Where it is uncertain whether the legislature intended to devote a larger or a smaller sum to the payment of a salary, it has been held that the doubt should be resolved by adopting the smaller amount, since the interest of the public, other things being equal, is superior to that of the individual. (23 Am. & Eng. Ency. of Law, 388; 29 Cyc. 1426; United States v. Clough, 55 F. 373, 5 C. C. A. 140; State ex rel. Mitchell v. Bloxham, 25 Fla. 407, 7 So. 873.)

There is nothing in the action of the legislature from which it can be determined what amount these salaries were to be increased, and therefore they remain as fixed by statute until such time as the legislature sees fit to express its intention in appropriate words. (Holmberg v. Jones, 7 Idaho 752, 760, 65 P. 563.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an application for a writ of mandate to the state auditor, directing him forthwith to issue his warrant in favor of petitioner for the sum of $ 153, the same being the amount of salary claimed to be due petitioner for the period beginning January 1, 1913, and ending September 30, 1913.

It is alleged in the petition that the plaintiff or petitioner is the duly appointed, authorized and acting librarian of the State Historical Society and has served as such from the first day of January, 1913, to and including the 30th day of September, 1913; that the defendant is the qualified and acting state auditor of the state of Idaho and that he refuses to draw his warrant as above stated. A demurrer was filed to the petition and the case was heard upon said demurrer and the petition.

The salary of the librarian of the State Historical Society is fixed by sec. 851, Rev. Codes, as amended by Sess. Laws 1911, p. 117, which section is as follows:

"Section 851. For such services the Librarian shall be paid a salary of Twelve Hundred Dollars ($ 1200) per annum, in monthly payments, and shall receive such actual and necessary expenses incurred while performing the duties prescribed in this Act; Provided: The aggregate sum shall not exceed Eleven Hundred Dollars ($ 1100) in two years; and, Provided, further, That the Librarian may appoint an assistant whose salary shall be Six Hundred Dollars ($ 600) per annum, payable monthly."

Said office of librarian of the Historical Society is an appointive office and not a constitutional office.

It will be observed that it would require an appropriation of $ 1,800 per year to pay the salaries of said librarian and his assistant, or $ 3,600 for the biennial term. Without enacting any legislation amending said section 851, as amended, the legislature in 1913 in the general appropriation bill (see Laws 1913, p. 643), appropriated the following sums:

"State Historical Society, salaries

$ 4,250.00

"Traveling, purchasing and express

750.00

Total,

$ 5,000"

It appears that the legislature desired to increase the salaries of said librarian and his assistant as...