In re Appropriations for Deputy State Officers

• Decision Date: 30 January 1889
• Citation: 41 N.W. 643,25 Neb. 662
• Parties: IN RE APPROPRIATIONS FOR DEPUTY STATE OFFICERS, ETC.
• Court: Nebraska Supreme Court

25 Neb. 662

41 N.W. 643

IN RE APPROPRIATIONS FOR DEPUTY STATE OFFICERS, ETC.

Supreme Court of Nebraska.

Jan. 30, 1889.

Syllabus by the Court.

1. Section 26, art. 5, of the constitution, prohibits the creation of a new executive department, but does not prohibit the appointment of a deputy by the auditor, treasurer, secretary of state, or commissioner of public lands and buildings.

2. The word “clerk,” in section 24, art. 5, of the constitution, is used in the same sense as at common law, viz.: A person employed in an office who writes or registers in proper form the transactions of the tribunal or body to which he belongs.

3. The prohibition against clerk hire, in the office of the attorney general, does not preclude the legislature from providing for a deputy or assistant attorney general.

4. A stenographer is one skilled in the art of writing in short-hand by using abbreviations or characters for whole words, and does not come within the common-law definition of the word “clerk.”

Quœre by legislative committee.

E. F. Warren, for the State.

The Attorney General, contra.

MAXWELL, J.

The following interrogatory was submitted to this court by the committee of finance of the house of representatives:

“Resolved, that the supreme court be requested to give to this body their opinion on the following question, viz.: First. Is the law authorizing the attorney general to appoint a deputy in violation of any of the provisions of sections 24 or 26 of article 5 of the constitution? Second. Would an appropriation for and payment of a stenographer in the attorney general's office be a violation of section 24, art. 5, of the constitution?

Very respectfully, J. C. MCBRIDE,

Chairman Committee on Finance, Ways and Means, House of Representatives.”

(2) “Whereas, by various acts of the legislatures of this state, the state treasurer, secretary of state, auditor of state, land commissioner, and attorney general are authorized to appoint deputies to assist them in their departments; and whereas, the legislature of 1887 made an appropriation to pay the salary of a stenographer for the office of the attorney general; and whereas, the above-named executive officers have asked the legislature to make appropriations for the ensuing two years to pay the salaries of the aforesaid deputies, and the attorney general has asked for an appropriation to pay a stenographer for his department for the coming two years: Therefore be it resolved, by the finance, ways, and means committee of the senate that the supreme court be, and they are hereby, requested to give to this committee their opinion on the following questions, viz.: (1) Is the law authorizing the appointment of deputies by the aforesaid executive officers in violation of section 26, art. 5, of the constitution of Nebraska? (2) Are the acts of the legislature, authorizing the attorney general to appoint a deputy, and making an appropriation to pay his salary, and also appropriating a sum to pay the salary of a stenographer for the attorney general's office, in violation of section 24 or 26, art. 5, of the constitution of the state of Nebraska.

ISAAC M. RAYMOND.

CHURCH HOWE.

R. S. NORVAL.

L. G. HURD.

S. N. WOLBACH.”

The questions presented are of great importance, involving, as they do, the proper construction of several sections of our constitution. The matter was therefore entered on the docket under rule 23 of this court, and, as the questions affected the office of the attorney general, and therefore he was to some extent an interested party, it was deemed best to appoint an attorney to appear in behalf of the state. Mr. E. F. Warren, of Nebraska City, was therefore appointed, and argued the case, and prepared and filed a brief therein. The attorney general also filed a brief, and made an oral argument in the case.

Section 1, art. 5, of the constitution, provides that “the executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general, and commissioner of public lands and buildings, who shall each hold his office for the term of two years from the first Thursday and [after] the first Tuesday in January next after his election, and until his successor is elected and qualified.” Section 26 of the same article provides that “no other executive state office shall be continued or created, and the duties now devolving upon officers not provided for by this constitution shall be performed by the officers herein created.” It will be observed that the provision is that no other executive state office shall be continued or created; that is, that the legislature shall not create a new executive office or department, but may impose additional powers upon any or either of the officers constituting the executive department. In re Railroad Com'rs, 15 Neb. 683. Section 19, art. 5, of the constitution, provides that “the commissioner of public lands and buildings, the secretary of state, treasurer, and attorney general, shall form a board, which shall have general supervision and control of all the buildings, grounds, and lands of the state, the state prison, asylums, and all other institutions thereof, except those for educational purposes; and shall perform such duties, and be subject to such rules and regulations, as may be prescribed by law.” Section 21, art. 5, provides that “an account shall be kept by the officers of the executive department, and of all the public institutions of the state, of all moneys received or disbursed by them severally from all sources, and for every service performed, and a semi-annual report thereof be made to the governor, under oath; and any officer who makes a false report shall be guilty of perjury, and punished accordingly.” Section 22, art. 5, provides that “the officers of the executive department, and of all the public institutions of the state, shall, at least ten days preceding each regular session of the legislature, severally report to the governor, who shall transmit such reports to the legislature, together with the reports of the judges of the supreme court, of defects in the constitution and laws; and the governor, or either house of the legislature, may at any time require information in writing, under oath, from the officers of the executive department, and all officers and managers of state institutions, upon any subject relating to the condition, management, and expenses of their respective offices.”

To understand fully the duties required of the board of public lands and buildings, it will be well to consider what services are required of it, and what boards it superseded.

1. It superseded the board of penitentiary inspectors, three in number, who were entitled to receive $5 per day for each day actually employed about the erection of the penetentiary. Such inspectors were also allowed for traveling expenses, not exceeding 10 cents per mile, and for necessary postage, stationery, and advertising, not exceeding $2,000. There were three trustees for the Nebraska Hospital for the Insane, who were entitled to $3 per day during the time they were actually employed, and “the same mileage as a member of the legislature.” There were six directors for the Deaf and Dumb Institute, who were each to be paid his traveling and personal expenses going to and returning from the meetings of said board. The Institute for the Blind was governed by a board of six trustees, who were to be paid only for “the actual expense necessarily incurred in attending the quarterly and annual meetings of the board.” Other institutions of the state have since that time been erected at various points therein,...