Menefee v. Askew

• Decision Date: 01 February 1910
• Citation: 107 P. 159,25 Okla. 623,1910 OK 47
• Parties: MENEFEE, State Treasurer, v. ASKEW, State Game and Fish Warden.
• Court: Oklahoma Supreme Court

107 P. 159

25 Okla. 623, 1910 OK 47

MENEFEE, State Treasurer, v. ASKEW, State Game and Fish Warden.

Supreme Court of Oklahoma

February 1, 1910

Syllabus by the Court.

An "appropriation" in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum from a designated fund out of the treasury in a given year for a specified object or demand against the state.

No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature.

Sections 9, 10, art. 4, c. 19, p. 303, Sess. Laws 1909, in connection with sections 3, 13, art. 6, c. 19, constitute a valid appropriation as to the salary of the Game and Fish Warden in the sum of $1,800 per annum, and his actual and necessary traveling expenses, not to exceed $800 per annum, and the salaries of not exceeding eight deputy game and fish wardens each in the sum of $800 per year and their each actual necessary expenses, not to exceed $600 per annum, while actually employed under the direction of the State Game and Fish Warden, as controlled by sections 55 and 56, art. 5, of the Constitution, but continue in effect as an appropriation for two years and one-half only after the passage of said act.

The provision of section 3, art. 6, providing that the Game and Fish Warden shall be reimbursed for his actual and necessary expenses, including expenses of catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses, does not constitute a valid appropriation, as the sum certain appropriated is not distinctly specified.

Error from Superior Court, Logan County; J. M. Sandlin, Judge.

Action by J. S. Askew, State Game and Fish Warden against J. A Menefee, State Treasurer. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for plaintiff in error.

Welborne & McCalla, for defendant in error.

WILLIAMS J.

The sole question for determination in this case is whether sections 9 and 10, art. 4, and section 3, art. 6, c. 19, of the Session Laws of the state of Oklahoma, 1909, being an act entitled, "An act to protect fish, game and birds, regulating hunting, and to prescribe penalties for violation, and providing for the enforcement thereof," approved March 8, 1909, constitute an appropriation as contemplated by section 55, art. 5, of the Constitution of the state of Oklahoma. Said sections are as follows (Sess. Laws Okl. 1909, c. 19, pp. 303, 306):

Section 9, art. 4: "All fees received by any county clerk, less twenty-five cents, to be retained by him for each license he issues, and all license fees received by any deputy warden, less the fee of twenty-five cents, shall, at the close of each month, be forwarded to the State Game and Fish Warden who will receipt for the same and forthwith turn them over to the State Treasurer. The State Treasurer shall receipt to the State Game and Fish Warden for all moneys so turned over to him, and shall place the same to the credit of the game protection fund of the state."

Section 10, art. 4: "All salaries and expenses of the Game Warden's department shall be paid only from the license fees and other funds received through said department, which shall be known as the game protection fund, and the chief warden shall have the authority at any time to suspend payment of the salaries of deputies or other expenses when necessary to avoid expenses in excess of the income of said department. Any surplus remaining in the game protection fund and not needed for the purpose of that department shall be used for propagating purposes. All funds when converted into the game protection fund shall be paid out by the State Treasurer only upon a warrant, duly signed and executed by the State Game Warden."

Section 3, art. 6: "The State Game and Fish Warden shall receive an annual salary of eighteen hundred (1,800.00) dollars, and his actual and necessary traveling expenses not to exceed, however, the sum of eight hundred (800.00) dollars a year, to be paid monthly upon the filing of his itemized statement of such expenses duly sworn to. Such salary and expenses to be paid out of the game protection fund. He shall also be reimbursed for his actual and necessary office expenses, including expenses of catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses."

Section 55, art. 5, of the Constitution provides: "No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

The following authorities support the contention that, where a constitutional provision fixes salaries of officers with a limitation, same neither to be changed nor increased during the term to which such officer was appointed or elected, and a definite time being fixed by the Constitution or statute for the payment of such officer, such provisions proprio vigore constitute an appropriation out of the treasury for the payment thereof as the same becomes due: Thomas v. Owens, 4 Md. 189; State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403; State v. Kenney, 10 Mont. 485, 26 P. 197; State v. Weston, 4 Neb. 216; State v. Weston, 6 Neb. 16; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266; People v. Goodykoontz, 22 Colo. 507, 45 P. 414. And some authorities go to the extent that such is the effect when the office is created by statute, and the salary and time of payment also fixed thereby. Reynolds v. Taylor, 43 Ala. 420; Nichols v. Comptroller, 4 Stew. & P. (Ala.) 154; Carr v. State, 127 Ind. 204, 26 N.E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 624. The foregoing rule is criticised and not followed in the cases of Myers v. English, 9 Cal. 341; Pickle v. Finley, Comptroller, 91 Tex. 484, 44 S.W. 480; Shattuck v. Kincaid, 31 Or. 379, 49 P. 758; Kingsbury v. Anderson, 5 Idaho, 771, 51 P. 744.

In the case of Pickle v. Finley, Comptroller, supra, Mr. Chief Justice Gaines, in speaking for the Supreme Court of Texas said: "Leaving out of view the provision in our Constitution which limits all appropriations to two years, the case of Reynolds v. Taylor, 43 Ala. 420, sustains the position taken by counsel. The Revised Code of Alabama (section 675) provided that a marshal of the Supreme Court should be appointed by the judges of the court, and that 'the annual salary of such marshal is two thousand dollars.' Another section of the Revised Code (section 210) declares that 'the salaries of all officers are payable on the last day of each month.' It was held that these provisions were an appropriation to pay the salary. We do not concur in this proposition. The only case cited in its support is that of Nichols v. Comptroller, 4 Stew. & P. [Ala.] 154, in which the law which fixed the salary in question was couched in very different language. The words were: 'A salary of $1,749, to be paid quarterly out of any money not otherwise appropriated.' The phrase 'not otherwise appropriated' means not appropriated to any other purpose than here is appropriated, and clearly implies an intent to make a present appropriation. But we cannot agree that the mere fixing of the salary of an officer implies a purpose to appropriate ipso facto the money for its payment. Neither do we think that a provision in a general code, directing the periods at which the salaries of officers 'shall be payable,' manifests any such intent. The evident purpose of such a provision is merely to fix the time when the salary may be paid, after the appropriation for its payment has been made. Thomas v. Owens, 4 Md. 189, is a leading case upon the same line. The Constitution of Maryland provided that no money should be paid out of the treasury except upon an appropriation made by law, created the office of comptroller, and also provided that he should receive a salary of $2,500, which should not be diminished during his term of office. The words seem to have been 'shall receive'--the same which are employed in the section of our Revised Statutes now under consideration. It was held that this was an appropriation. But it seems to us that the purpose was to name and fix the amount of the salary merely, and not to authorize its payment without a legislative appropriation. In the case of State v. Hickman, 9 Mont. 370, 23 P. 740 , the court followed this decision, and placed the same construction upon similar provisions in the Constitution of Montana. In the case of State v. Kenney, 10 Mont. 485, 26 Pac. 197, the same ruling was applied to a legislative enactment, but in that case the statute not only fixed the salary of the Code commissioner, the relator in the suit, but also made it the duty of the comptroller, upon approval of the work of the commissioners, to draw his warrant for the salaries of the commissioners under the act. A direction that the comptroller shall draw his warrant in favor of a claimant for a certain sum, it would seem, is an appropriation. Such, again, was the case of State v. Bordelon, 6 La. Ann. 68. There the statute directed that the Treasurer...