Jeffreys v. Huston

• Decision Date: 11 February 1913
• Parties: WOODSON JEFFREYS, Petitioner, v. FRED L. HUSTON, State Auditor, Defendant
• Court: Idaho Supreme Court

129 P. 1065

23 Idaho 372

WOODSON JEFFREYS, Petitioner, v. FRED L. HUSTON, State Auditor, Defendant

Supreme Court of Idaho

February 11, 1913

LEGISLATURE-APPROPRIATION OF FUNDS OF THE STATE-STATUTES-REPEAL-SUSPENSION.

1. Sec 13, art. 7 of the constitution of the state limits the power of any officer created under the constitution and laws of the state in paying out of the state treasury money except upon appropriation made by law.

2. Sec 11, chap. 72, Laws of 1911, p. 202, provides there shall be appointed by the governor on the recommendation of the adjutant general, an assistant adjutant general who shall have the rank of major. The adjutant general shall receive as a yearly compensation the sum of $2,000, payable in equal monthly instalments, and the assistant adjutant general shall receive as a yearly compensation the sum of $1,500, payable in equal monthly instalments; and sec. 101 of said act provides, to carry out the provisions of this act a continuous appropriation of $25,000 per annum is hereby made out of any money in the state treasury not otherwise appropriated, and the use or expenditure of the same sum hereby appropriated shall not be limited to any particular year.

3 Chap. 86, Laws of 1911, p. 319, is a general appropriation bill, and provides for the payment of the salaries and compensation of officers and employees of the state and the general expenses of state government, and in said chapter it is provided that the following sums of money or so much thereof as may be necessary, are hereby appropriated for the payment of the salaries and compensation of state officers and employees of the state of Idaho and the general expenses of state government and the maintenance of the several state institutions for the period commencing on the first Monday of January, 1911, and ending on the first Monday of January 1913; and provides "for all expenses relating to the National Guard of Idaho and the Reserve Militia, including the salaries of officers and subordinates as per House Bill No. 156, $45,000."

4. Where an act of the legislature provides for all expenses relating to the National Guard of Idaho and the Idaho Reserve Militia, including the salaries of officers and subordinates, and makes a continuing appropriation of $25,000 per annum, and that such appropriation shall not be limited to any particular year, and a subsequent general appropriation act is passed by the same legis- lature four days thereafter, and in said general appropriation bill it was provided for all expenses relating to the National Guard of Idaho and the Idaho Reserve Militia, including the salaries of officers and subordinates, as per House Bill No. 156, $45,000 (House Bill No. 156 was the previous act appropriating $25,000 per annum), the latter act suspends the first act during the period of time such latter appropriation covered.

5. Where a general appropriation bill in no way specifically repeals a former act, which makes an appropriation for the same purpose for which the general appropriation bill applies, and is continuous from year to year, and applies to no particular year, and the provisions of the two statutes when considered together can be harmonized and applied, this court will follow the rule and give effect to both acts, in order to carry out the intent of the legislature, and will not invoke the rule of repeal by implication.

6. Held, in this case, that the provision appropriating $25.000 per annum, under the act of March 10, 1911, was suspended during the years 1911 and 1912, but was in operation after the first Monday in January, 1913.

7. Held, that sec. 101 appropriates $25,000 per annum for use and expenditure under the provisions of chap. 72 of the Laws of 1911, p. 202, and was in operation January 6, 1913, and during said month, and that the plaintiff in this case having been appointed assistant adjutant general, and having performed such services, has a claim against the state for $125, and that it is the duty of the state auditor, the defendant in this action, to draw a warrant for that sum.

An original action in this court for a writ of mandamus.

Writ of mandate issued.

F. A. McCall and E. G. Davis, for Petitioner.

The legislature has full and absolute power to make continuing appropriations, subject only to the restrictions contained in sec. 1, art. 8 of the state constitution. (In re Continuing Appropriations, 18 Colo. 192, 32 P. 272, Gilbert v. Moody, 3 Idaho 3, 25 P. 1092; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266.)

The effect of the passage of the general appropriation bill was merely to suspend during the life of such bill that portion of sec. 101, referred to, and, upon the expiration of the biennial period covered by said bill, sec. 101 automatically became operative, and it now has precisely the same force and effect which it had prior to its suspension. (State ex rel. State v. Burdick, 4 Wyo. 290, 33 P. 131; United States v. Fisher, 109 U.S. 146, 3 S.Ct. 154, 27 L.Ed. 885; United States v. Mitchell, 109 U.S. 146, 3 S.Ct. 151, 27 L.Ed. 887.)

"A repeal removes the law entirely; but when suspended it still exists and has operation in every respect except wherein it has been suspended." (Mernaugh v. Orlando, 41 Fla. 433, 27 So. 34; Sutherland's Stat. Cons., sec. 288; 36 Cyc. 1101; Brown v. Barry, 3 Dall. (U. S.) 365, 1 L.Ed. 638; Cassel v. Lexington H. & P. Turnpike Road Co., 10 Ky. Law 486, 9 S.W. 502, 701; Heinssen v. State, 14 Colo. 228, 23 P. 995.)

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

A subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it may not do so in terms. (People v. Lytle, 1 Idaho 143.)

This court has heretofore in very plain language recognized the correctness of the principle of providing for the general expenses of the state government for a period of two years. (Gooding v. Proffitt, 11 Idaho 386, 83 P. 230; Stein v. Morrison, 9 Idaho 426, 75 P. 246.)

Statutes are repealed by implication where it is shown that latter statute intended to cover matter covered by first statute. (Mack v. Jastro, 126 Cal. 130, 58 P. 372; Smith v. Mathews, 155 Cal. 752, 103 P. 246.)

In the following cases courts have held statutes to be suspended: United States v. Fisher, 109 U.S. 146, 3 S.Ct. 154 27, L.Ed. 885; State v. Burdick, 4 Wyo. 290, 33 P. 131; (Riggs v. Pfister, 21 Ala. 469; Riggs v. Brewer, 64 Ala. 282.

STEWART J. Sullivan, J., AILSHIE, C. J., concurring.

OPINION

STEWART, J.

This is an application for a writ of mandate. The case is submitted upon the pleadings. The facts as disclosed by the complaint and answer are as follows: That the defendant, Fred L. Huston, is the state auditor: that the plaintiff, during the month of January, 1913, was the duly appointed, qualified and acting assistant adjutant general of the state of Idaho; that on the 1st day of February, 1913, the petitioner presented to the defendant, the state auditor, at his office, a duly verified claim against the state of Idaho for the sum of $ 125; that such claim conforms in all respects to the requirements of law governing the presentation of such claims, and represents the amount due plaintiff from the state of Idaho for services rendered during the month of January, 1913; that he demanded that the defendant issue a warrant on the state treasury for the said sum of $ 125, and the defendant refused to issue said warrant and has since said time refused to issue the same.

In the answer of defendant it is claimed that the reason for refusing to issue the warrant to pay plaintiff's claim is based upon the fact that no appropriation has been made by the legislature for the payment of the salary of the assistant adjutant general for the month of January, 1913, or for any period subsequent to the first Monday of January, 1913.

The contention made by the state auditor arises by reason of the conflict between two acts of the state legislature. The plaintiff relies upon secs. 11 and 101 of chap. 72 of an act providing for the organization, discipline and regulation of the organized militia of this state, known as the National Guard of Idaho, Laws of 1911, p. 202. Sec. 11, among other things, provided: "There shall be appointed by the Governor on the recommendation of the Adjutant General, an Assistant Adjutant General who shall have the rank of Major. The Adjutant General shall receive as a yearly compensation the sum of $ 2,000, payable in equal monthly instalments, and the Assistant Adjutant General shall receive as a yearly compensation the sum of $ 1,500 payable in equal monthly instalments."

Sec. 101 provides: "To carry out the provisions of this act, a continuing appropriation of $ 25,000 per annum is hereby made out of any money in the state treasury not otherwise appropriated, and the use or expenditure of the same sum hereby appropriated shall not be limited to any particular year."

It will be seen from these two sections that the assistant adjutant general is to receive $ 125 a month, payable in monthly instalments, and under the provisions of sec. 101 an appropriation is made of money in the state treasury in the sum of $ 25,000 per annum as provided for by the legislature, and this appropriation is not to be limited to any particular year.

The foregoing chapter providing for the organization of the National Guard of Idaho was approved March 10, 1911. The same legislature enacted chap. 86, Laws of 1911, p. 319, entitled "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...