Pickle v. Finley

• Decision Date: 21 February 1898
• Citation: 44 S.W. 480
• Parties: PICKLE v. FINLEY, State Comptroller.
• Court: Texas Supreme Court

44 S.W. 480

PICKLE v. FINLEY, State Comptroller.

Supreme Court of Texas.

February 21, 1898.

Application for mandamus by Charles E. Pickle against R. W. Finley, as state comptroller. Refused.

Ward & James and Fiset & Miller, for relator. M. M. Crane, Atty. Gen., and T. A. Fuller, Asst. Atty. Gen., for respondent.

GAINES, C. J.

This suit was brought by Charles E. Pickle against R. W. Finley, as comptroller of the state, to compel the latter to issue his warrant upon the state treasurer for the payment of an alleged balance due upon his salary as stenographer of the court of civil appeals for the Third supreme judicial district, for the time extending from the 1st day of March, 1897, to the 11th day of May of the same year. In brief, the relator alleges that his salary is fixed by law at $1,200 per annum, payable monthly, and that the respondent had refused to draw his warrant for his services for the period of time mentioned, except at the rate of $50 per month, and that he had accepted a warrant of the latter rate under protest. He prays that a mandamus issue to compel the comptroller to issue his warrant for the balance due him on his salary estimated at the rate of $1,200 per annum. The respondent has filed a demurrer to the petition, and also an answer, which, in the view we take of the case, it is not necessary to consider.

Article 1012 of the Revised Statutes of 1895 provides: "Each court of civil appeals shall appoint one stenographer, who shall discharge such duties as may be required by the court; shall be duly sworn to keep secret all matters which may come to his knowledge as said stenographer; shall receive a salary of twelve hundred dollars per annum, and shall each give bond, with two or more sureties, in the sum of five thousand dollars, payable to the state of Texas, conditioned for the faithful performance of the duties of said office." But the general appropriation bill passed by the 25th legislature appropriated only the sum of $600 for the payment of the stenographer of the court of civil appeals for the Third supreme judicial district. Laws 25th Leg. (Sp. Sess.) p. 25. The contention of the relator is thus stated in his brief: "Petitioner contends that the law which created the office of stenographer, and fixed the compensation at twelve hundred dollars per annum, was in itself an appropriation, and that no further appropriation was necessary to authorize or require the comptroller to issue his warrant for the proper amount." In support of his contention, counsel cite the article of the Revised Statutes of 1895 above quoted, as well as the following articles:

"Art. 4853. The salaries of officers shall not be increased nor diminished during the term of office of the officers entitled thereto.

"Art. 4854. Officers entitled to salaries may demand monthly payments of the same, and upon filing with the comptroller of public accounts proper vouchers, the comptroller shall issue his warrant upon the treasurer for the amount of salary due to the officer applying therefor," etc.

Section 6 of article 8 of our constitution provides that "no money shall be drawn from the treasury but in pursuance of specific appropriations made by law; nor shall any appropriation of money be made for a longer term than two years, except by the first legislature to assemble under this constitution, which may make the necessary appropriations to carry on the government until the assemblage of the sixteenth legislature." And the question arises, do the articles of the Revised Statutes relied on by the respondent make the appropriation for the payment of the salaries of the stenographer of the courts of civil appeals? It is clear that an appropriation need not be made in the general appropriation bill. It is also true that no specific words are necessary in order to make an appropriation; and it may be conceded, as contended, that an appropriation may be made by implication when the language employed leads to the belief that such was the intent of the legislature. But we are of the opinion that the purpose of article 1012 was merely to fix the salary of the stenographer, and not to make an appropriation for its payment. But, in support of the proposition that the article does make the appropriation, counsel for relator have cited us to several cases, which we will first consider.

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. 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...