Hard v. State ex rel. Owen

• Decision Date: 15 March 1934
• Docket Number: 3 Div. 87.
• Parties: HARD, State Comptroller, v. STATE ex rel. OWEN.
• Court: Alabama Supreme Court

153 So. 725

228 Ala. 241

HARD, State Comptroller, v. STATE ex rel. OWEN.

3 Div. 87.

Supreme Court of Alabama

March 15, 1934

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Petition of the state, on the relation of Marie Bankhead Owen, for mandamus to J. H. Hard, Jr., as State Comptroller. From a judgment awarding the writ, respondent appeals.

Affirmed.

John H Peach, of Sheffield, for appellant.

Steiner Crum & Weil and Sam Rice Baker, all of Montgomery, for appellee.

BROWN Justice.

This appeal is by the "State Comptroller" from a judgment of the circuit court of Montgomery county awarding a peremptory writ of mandamus, on the petition of the "Director" elected March 1, 1931, by the "Board of Trustees" of the department of archives and history, commanding the appellant to draw a warrant on the state treasury for the balance alleged to be due the "Director" as salary for the month of December 1932, and for the month of January and the intervening months up to and including August, 1933.

The salary of the director was paid for the month of December 1932, and January, up to and including April 1933, as fixed by the act entitled "An Act Relating to the salary or compensation of officers or employees of the State, or of any department thereof whose compensation is paid out of the State Treasury," approved November 5, 1932. General Acts, Extra Session 1932, pp. 300-302.

The salary was paid for the other months, up to and including August, 1933, as fixed by the act entitled "An Act To fix, limit, or regulate the salaries and compensation of certain officers and employees of the State or any department thereof; to provide how the same shall be payable; and to provide for the repeal of all laws or parts of laws in conflict with the provisions of this Act; and to provide when the provisions of this Act shall become effective," approved April 14, 1933. General Acts Extra Session 1933, pp. 124-130.

The major contention of the appellee is that the position of "Director" is a civil office of profit under this state, with a term and salary fixed by law, and that the salary is within the influence and protection of section 281 of the Constitution, which provides that "the salary, fees, or compensation of any officer holding any civil office of profit under this state or any county or municipality thereof, shall not be increased or diminished during the term for which he shall have been elected or appointed." Constitution 1901, § 281. (Italics supplied.)

The contention of the appellant, on the other hand, is that the office of "Director" is not within the influence of said section of the Constitution; that the self-perpetuating board of trustees of the department of archives and history is a governmental agency, and the director is a mere employee of the board and its executive agent.

The appellant rests his refusal to issue the warrant for the amount fixed by section 1411 of the Code of 1923 on the provisions of the Acts of the Legislature above referred to.

Section 2 of the act first referred to, so far as here pertinent, provides: "This Act shall take effect on the last day of the month in which it is passed, except as to those officers whose salaries, or compensation, cannot, under the Constitution, be diminished during the term for which they were elected or appointed. As to these officers, this Act shall become effective on the expiration of their present terms, and the salaries of their successors shall be the same as provided in Section 1 of this Act," etc. General Acts Extra Session 1932, p. 301. (Italics supplied.)

Section 5 of the last-mentioned act provides: "As to all salaries herein provided for officers or employees not elected or appointed for any term of office and which salaries are subject to reduction now this Act shall become effective on and after the first day of the month succeeding the approval of this Act; and as to all other salaries herein, this Act shall take effect on the first day of the month next succeeding the ratification of any Constitutional Amendment removing or suspending Constitutional restriction or limitations upon decreasing or diminishing the salary, fees or compensation of any officer, officers or employees during the term for which they shall have been elected or appointed." General Acts Extra Session 1933, pp. 129, 130. (Italics supplied.)

It seems to be well settled that one who performs a public function, and his authority is derived directly from the state by legislative enactment, and the law prescribes his duties, powers,...