Johnson v. Jones
| Decision Date | 13 December 1927 |
| Docket Number | No. 5591.,5591. |
| Citation | 216 N.W. 584,52 S.D. 64 |
| Parties | JOHNSON v. JONES, State Auditor. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Mandamus by Willis E. Johnson against E. A. Jones, as State Auditor, to compel payment of salary. Alternative writ made peremptory.Hall, Purdy & Eidem, of Brookings, for plaintiff.
Buell F. Jones, Atty. Gen., and Benj. D. Mintener, Asst. Atty. Gen., for defendant.
At a meeting of the board of regents in January, 1923, the resignation of Dr. Willis E. Johnson as president of the State College of Agriculture and Mechanic Arts was presented and accepted to take effect July 1, 1923, and he was elected president emeritus of the institution, and given sabbatical leave for one year beginning July 1, 1923, at a salary of $5,000, with such duties as the board might designate. One-twelfth of said sum was paid him for July, 1923, salary, and the like sum for August, 1923, salary, but the state auditor refused to approve the voucher for the September, 1923, salary, although requisitioned by the board, and Dr. Johnson has not received any portion of such salary since the August payment. At all times during that year he maintained his legal residence at Brookings, and held himself in readiness to perform any tasks that might be assigned to him by the board. It appears from the evidence that the board intended to assign duties to him but that such intent was frustrated by the act of defendant in refusing to honor the salary vouchers.
In February, 1924, this court issued an alternative writ of mandamus requiring the state auditor to issue a warrant for such salary for September, 1923, and for each succeeding month up to that time or that he show cause, etc. The state auditor answered. Testimony was taken, briefs were filed, and the case was orally argued.
Quoting from defendant's brief:
“The defendant contends that the plaintiff is not entitled to compensation from the state of South Dakota for the month of September, 1923, and ensuing months; that he performed absolutely no services for the state, and that in fact he was outside of the state during practically all of the time for which he claims compensation; that any understanding which the regents of education might have had with the plaintiff that the plaintiff was to be paid the $5,000 for the time beginning with July 1, 1923, and ending with July 1, 1924, is absolutely in excess of the jurisdiction of the board; that any such contract is against public policy, and in violation of the spirit and intent of the statutes prescribing the duties of the regents of education and of the Constitution of this state; and that the same amounts to the granting of a gratuity, gift, reward, or pension in recognition of past services.”
Quoting from plaintiff's brief:
“The plaintiff on the other hand contends:
(1) That the board of regents is a constitutional body having exclusive control of the higher institutions of learning of this state, and that under the provisions of section 3, of article 14 of the state Constitution and sections 5562 to 5587, Revised Code, enforcing this constitutional provision, the resolutions, contracts and orders made by it in the performance of its duties, must ‘control’.
(2) That the board of regents having control of these institutions has exclusive power and authority to employ members of the facultiesof these several institutions, to fix their compensation and prescribe their duties, and also pursuant to custom and express statutory authority, to grant sabbatical leave.
(3) That the defendant state auditor is an administrative officer, whose duties herein are of a purely ministerial nature, and that he has no power or authority to review or reverse such action of the board of regents, nor to refuse to issue warrants in payment of its employees on its demand, out of funds under its control, and available for that purpose.”
[1] We think it cannot be successfully disputed that the control of the State College of Agriculture and Mechanic Arts is vested in the board of regents. Section 3, article 14, of the Constitution as amended in 1896, provides:
At the time of the amendment to said section in 1896 the name of the institution was “the Agricultural College of South Dakota,” section 1, ch. 38, Laws 1891. But, by the provisions of chapter 12, Laws 1907, the name was changed to “State College of Agriculture and Mechanic Arts.” Not only does the Constitution vest control of that institution in the board of regents, but section 5596, Rev. Code...
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