People ex rel. Fulton v. O'Ryan
| Decision Date | 09 January 1922 |
| Docket Number | 10144. |
| Citation | 71 Colo. 69,204 P. 86 |
| Parties | PEOPLE ex rel. FULTON v. O'RYAN et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Feb. 6, 1922.
Error to District Court, City and County of Denver; Clarence J Morley, Judge.
Mandamus by the People of the State of Colorado, on the relation of Alice Adams Fulton against the Reverend Father William O'Ryan, as President of the State Board of Charities and Corrections of Colorado, and others. Writ discharged, and relator brings error.
Judgment reversed, with directions to make writ peremptory.
Frank McLaughlin, of Denver, for plaintiff in error.
Victor E. Keyes, Atty. Gen., and Charles Roach, Deputy Atty. Gen for defendants in error.
Mandamus to compel payment of relator's salary as secretary of the state board of charities and corrections. The writ was discharged.
The relator was secretary of the state board at the time of the passage of the so-called Civil Service Amendment to the Colorado Constitution, and it is conceded that she is a state officer under its terms, and she has not been removed nor has there been any attempt to remove her. Among the duties of the board prescribed by the act establishing it (R. S. 1908, c 22), is investigation of penal, charitable, and other institutions. The relator performed this duty under the board's regulations.
The Legislature of 1921, in the General Appropriation Bill, made no provision for the salary of the secretary, but appropriated $1,800 for the salary of 'investigator (male).' There is no such office as investigator, statutory or constitutional.
If this was an attempt to create a new office, that of investigator, it was a violation of the provision of the Constitution (article 5, § 32) which provides that the General Appropriation Bill 'shall embrace nothing but appropriations,' and also of article 5, § 21, with reference to titles of bills, and so void. If it was an attempt to legislate the relator out of office and put another in, it was void for the same reasons, and also because in violation of the Civil Service Amendment, for it is evident that, if the Legislature may merely change title of an office and attach the duties and salary of the old name to the new one, the Civil Service Amendment is a nullity. State ex rel. Henderson v. Burdick, State Auditor, 4 Wyo. 272, 33 P. 125, 24 L.R.A. 266; Reid v. Smoulter, 128 Pa. 324, 18 A. 445, 5 L.R.A. 517. See, also, State, etc., v. Mayor, etc., of Nashville, 15 Lea (Tenn.) 697, 54 Am.Rep. 427; Bd. of Supervisors, De Soto County, v. Westbrook, 64 Miss. 312, 1 So. 352; State, etc., v. Shreveport, 124 La. 178, 50 So. 3, 134 Am.St.Rep. 496; Kendall v. Raybould, 13 Utah 226, 44 P. 1034; Carr, Auditor, et al. v. State etc., 127 Ind. 204, 26 N.E. 778, 11 L.R.A. 370, 22 Am.St.Rep. 624; Morris v. Glover et al., 121 Ga. 751, 753, 49 S.E. 786; Thomas, Comptroller, v. Owens, Treas., 4 Md. 189; 1 Kent. Com. 281. To prevent such things was the purpose of the amendment. People ex rel. Clay et al. v. Bradley et al., 66 Colo. 186, 190, 179 P. 871.
It is argued with some force that under these conditions we ought to construe the appropriation as intended for the secretary, but we do not find it necessary to decide that question. We think that chapter 22, R. S. 1908, contains a continuing appropriation.
In People v. Goodykoontz, 22 Colo. 507, 45 P. 414, the act (Laws 1889, p. 436, § 1) establishing the office of steam boiler inspector, which provides that 'said inspector shall receive an annual salary of $2,500 * * * payable as other state officers,' was held to be a continuing appropriation, because the amount of the salary, the time and the methoed of payment were fixed by law. This case was approved and distinguished in Leddy v. Cornell, 52 Colo. 189, 120 P. 153, 38 L.R.A. (N. S.) 918, Ann.Cas. 1913C, 1304.
In the present case the act provides that the...
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