People ex rel. Clement v. Spruance

• Citation: 6 P. 831,8 Colo. 307
• Parties: PEOPLE ex rel. CLEMENT and another v. SPRUANCE, Auditor, etc. (Two Cases.)
• Decision Date: 09 May 1885
• Court: Supreme Court of Colorado

6 P. 831

8 Colo. 307

PEOPLE ex rel. CLEMENT and another v. SPRUANCE, Auditor, etc. (Two Cases.)

Supreme Court of Colorado

May 9, 1885

R. H. Gilmore, A. E. Pattison, Chas. G Clement, and L. Twitchell, for relators.

Theo. H. Thomas, Atty. Gen., and Thornton H Thomas, for respondents.

BECK C.J.

These cases are applications of the respective relators for writs of mandamus to the state auditor to compel him to audit claims alleged to be due them from the state, and to issue warrants upon the treasurer for the payment thereof. The applications are submitted upon an agreed statement of facts, and the facts being substantially the same in both cases, as well as the legal questions arising thereon, the cases may properly be considered together.

The relator Clement was appointed clerk of the judiciary committee of the senate of the Fifth general assembly on the tenth day of January, 1885, being the fourth day of the session of said body, and served in that capacity for the period of 87 days. The appointment was made by the chairman of said judiciary committee, by virtue of a resolution of the senate, adopted on the third day of the session, authorizing said chairman to employ such clerical assistance as, in his judgment, was necessary. He informed the relator that his compensation would be fixed by resolution at the sum of six dollars per day. The relator served 87 days, and at the close of the session the senate, by resolution prescribing the compensation of its officers and employes for the session, fixed his compensation at the rate of $6 per day, amounting in the aggregate to the sum of $522. The auditor, acting under the advice of the attorney general, audited a demand on account of said services for the sum of $348, being at the rate of $4 per day, and issued a warrant upon the treasurer for the payment of that sum, rejecting as illegal the balance of the claim, which amounted to the sum of $174. He now prays that the auditor be compelled, by a peremptory writ of mandamus, to issue a warrant for the last-mentioned sum of money.

The relator Tucker was, by a resolution of the house of representatives, elected or appointed docket clerk of that body on the first day of its recent session, January 7, 1885, and served 90 days. On the thirty-first day of Mrch (one week before the close of the session) the house adopted a resolution fixing the compensation of its employes, giving to the said Tucker $6.50 per day for the entire session, amounting in the aggregate to the sum of $585. Upon this claim the auditor allowed and issued his warrant for the sum of $420, leaving a balance claimed to be still due and unpaid of $160, for the allowance of which balance a like peremptory writ is prayed.

The position of the attorney general and his associate counsel, in respect to the action of the two houses of the general assembly on the subject of these claims, is that it was repugnant to sections 27 and 28, art. 5, of the state consitution, and likewise in conflict with an existing statute on the subject, viz., 'An act to prescribe the number, duties, and compensation of the officers and employes of the general assembly, approved November 23, 1876,' (Gen. St. 523;) that said employes became entitled to the compensation provided by said statute, and to no other or greater compensation; that the adoption of said resolution were unconstitutional and illegal acts, and being so, the fees therein prescribed are incapable of enforcement against the state.

The facts being conceded, we will proceed at once to the delicate duty of determining the law applicable thereto. To decide whether an act of the law-making assembly can be sustained, or must be declared void for repugnancy to the constitution, is always a delicate duty. It is one imposed, however, by the state upon the courts, and must be performed with fidelity. 'The constitution,' says Mr. COOLEY, 'is the fundamental law of the state, in opposition to which any other law, or any direction or order, must be held inoperative and void.' Cooley, Const. Lim. 56, 57. Whether the two houses of the general assembly can, by a separate resolution of such house adopted at or near the closing hours of their respective sessions, fix the compensation of their officers and employes at a higher rate than allowed by an existing statute, involves a question of constitutional law. A further inquiry is whether a clause in the general appropriation bill, appropriating money to pay the excess of compensation above the amount prescribed by statute, obviates the constitutional difficulty. Section 27, art. 5, of the constitution provides as follows.

'The general assembly shall prescribe by law the number, duties, and compensation of the officers and employes of each house; and no payment shall be made from the state treasury, or be in any way authorized, to any person except to an acting officer or employe elected or appointed in pursuance of law.'

The regularity of the employment is conceded; so no question arises upon the latter clause of this section. Respecting the first clause, the position is taken that it is directory merely, and that a failure to comply strictly with the provision is not fatal. This point was argued for the relators largely upon the principles of statutory construction, and most of the authorities cited are of this character; for example, that a statute is directory when its provisions contain mere matter of direction and nothing more; that when a statute directs certain proceedings to be done in a certain way, or at a certain time, and the form or period does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done. Potter's Dwar. St. 222, and note on page 226.

These are sound rules of statutory construction, and if applicable to the construction of constitutional provisions, which, in our judgment, they are not, still the requirement that the legislature should provide by law the number, duties, and compensation of its officers and employes being a constitutional provision affecting public rights, and essential to their due protection, should be held mandatory. Greater importance is to be attached to a provision of this nature, when incorporated into the fundamental law, than when enacted as a rule of statutory obligation only. We think it was designed to be a peremptory direction to the general assembly. Upon the construction of constitutional provisions of this character, Judge COOLEY says:

'The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes of the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government at all times shape their conduct. * * * If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only.' Cooley, Const. Lim. 93.

Respecting the promise made to the relator Clement, that six dollars per day would be fixed by resolution of the senate as pay for his services, every one is presumed to know the laws of the land, and no advantage can be derived from a promise which necessarily involves a breach of the law. The statute of 1876, if applicable to the case, allows the relators each four dollars per diem. It is argued that this act was not in force-- First, because it was only designed to regulate the number, duties, and compensation of the officers and employes of the first legislative assembly that convened under the constitution; and, secondly, because that body had no constitutional authority to pass a law which would bind a subsequent legislature. Authorities are cited to this point, but they do not sustain the proposition. They only go to the point that a legislature cannot enact irrepealable laws. 1 Cooley, Bl. 90.

The principle established by the authorities is illustrated in the case of Wall v. State, 23 Ind. 153, where it is held that the legislature cannot impose limits or restrictions upon its own future action, or say what a future legislature may or may not do. In this connection the court announces the well-settled rule of law that when two statutes are inconsistent the last enactment stands as the law. It would be an unwarrantable inference from the adjudications upon this point to say that when a law has been duly enacted by one legislative assembly in conformity with a mandate of the constitution fixing the number and compensation of legislative employes, that a subsequent legislative body could legally ignore such law without modifying or repealing it, or passing an act inconsistent with its provisions.

There is nothing in the suggestion that the first general assembly attempted, by the act referred to, to control the action of all future assemblies. On the contrary, the first sentence of the act refutes the proposition. It is as follows: 'That until otherwise provided by law the officers and employes of the respective houses of the general assembly of Colorado shall be as follows, to-wit.' Such laws have been held valid and obligatory upon future legislative assemblies...