People ex rel. Hegwer v. Goodykoontz

• Decision Date: 18 May 1896
• Citation: 22 Colo. 507,45 P. 414
• Parties: PEOPLE ex rel. HEGWER v. GOODYKOONTZ, Auditor.
• Court: Colorado Supreme Court

45 P. 414

22 Colo. 507

PEOPLE ex rel. HEGWER v. GOODYKOONTZ, Auditor.

Supreme Court of Colorado

May 18, 1896

Error to district court, Arapahoe county.

Petition on the relation of Ferdinand H. Hegwer, against Floyd M Goodykoontz, auditor, for a writ of mandamus. There was a judgment denying the writ, and relator brings error. Reversed.

In the year 1889 the legislature established the office of steam boiler inspector. The act provided that 'said inspector shall receive an annual salary of two thousand five hundred (2,500) dollars and mileage at ten cents per mile, payable as other state officers.' For the purpose of carrying out the provisions of the act, the legislature made special appropriations therefor, and continued to do so until the year 1893. At the biennial 1893 session of the legislature no special appropriation was made for this officer, although one Ferdinand H. Hegwer was the then duly authorized and acting incumbent of the office. For a portion of the year 1893 warrants or certificates of indebtedness were issued by the auditor monthly for his salary, the same as for that of other state officers; but, as the state funds were running low near the close of the year, the auditor refused to issue either warrants or certificates of indebtedness for the unpaid salary of this officer. Thereupon Mr. Hegwer commenced suit by mandamus to compel the issuance of warrants for his monthly salary, and an alternative writ of mandamus was issued, which, upon the coming in of an answer, and upon the final hearing of the case, was quashed, and the proceedings dismissed. To review this judgment, the relator brings the case here by writ of error. The following provisions of our constitution and statutes bear more or less directly upon the questions presented and considered: 'No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof.' Const. art. 5, § 33. 'Except as otherwise provided in this constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment; provided, this shall not be construed to forbid the general assembly to fix the salary or emoluments of those first elected or appointed under this constitution.' Article 5, § 30. 'In all cases of accounts audited and allowed against the state, and in all cases of grants, salaries, pay the expenses, allowed by law, the auditor shall draw a warrant on the treasurer for the amount due, in the form required by law; provided, an appropriation has been previously made for such purpose.' Gen. St. 1883, § 1379. 'No warrant shall be drawn by the auditor, or paid by the treasurer, unless the money has been previously appropriated by law; nor shall the whole amount drawn for or paid under one head ever exceed the amount appropriated by law for that purpose.' Gen. St. 1883, § 1380. The section of the statute applying to salaries of the other state officers reads as follows: 'The salaries aforesaid shall be payable in monthly installments at the end of each and every month from the date of the qualification of the said officers respectively, for their respective offices and upon request the auditor shall draw warrants upon the state treasurer accordingly in favor of the several officers aforesaid.' Gen. St. 1883, § 2994.

W. D. Wright, for plaintiff in error.

Thomas, Hartzell, Bryant & Lee, for defendant in error.

HAYT C.J.

Two questions are presented by this record: First, is the boiler inspector an officer of one of the departments of the state, and, as such, has he a preferred claim against the state for his salary? Second. Did the legislature make such an appropriation to pay relator's salary as made it incumbent upon the auditor to issue warrants therefor?

Since this case was determined in the court below, the first of the above questions has received the consideration of this court in the case of Parks v. Commissioners (decided at this term) 21 Colo. ----, 43 P. 542. It was there held 'that every officer of this state who holds his position by election or appointment, and not by contract, and whose duties are defined by statute, and are in their nature continuous, and relate to the administration of the affairs of the state government, and whose salary is paid out of the public funds, is a public officer of either the legislative, executive, or judicial department of the government, and that his salary was therefore a preferred claim against the state.' The foregoing conclusion was reached after a most careful consideration of our constitution and the authorities bearing thereon, and we find nothing in the briefs of counsel requiring a revision of the opinion then announced.

The second question has also been before the court in a...