Reed v. Huston

• Decision Date: 12 May 1913
• Citation: 132 P. 109,24 Idaho 26
• Parties: FRED R. REED, Plaintiff, v. FRED L. HUSTON, State Auditor, Defendant
• Court: Idaho Supreme Court

132 P. 109

24 Idaho 26

FRED R. REED, Plaintiff, v. FRED L. HUSTON, State Auditor, Defendant

Supreme Court of Idaho

May 12, 1913

IMMIGRATION COMMISSIONER - SALARY - APPROPRIATION - WHAT CONSTITUTES APPROPRIATION.

1. Section 1, article 13, of the state constitution provides that, "There shall be established a bureau of immigration, labor and statistics, which shall be under the charge of a commissioner of immigration, labor and statistics, who shall be appointed by the governor, by and with the consent of the senate. The commissioner shall hold his office for two years, and until his successor shall have been appointed and qualified, unless sooner removed."

2. Sec 1418, Rev. Codes, as amended in 1911 (1911 Sess. Laws, p 564), provides that "It shall be the duty of the Governor, by and with the consent of the senate, to appoint a competent person as Commissioner of Immigration, Labor and Statistics, who shall have charge of said bureau, and who shall hold his office for the term provided in said Article 13 of the constitution. He shall receive a salary of $2,400 a year," etc., and sec. 276 of the Rev. Codes provides that "The salary of all state and district officers whose salaries are paid from the state treasury, shall be paid quarterly on the second Monday of January, April, July and October of each year out of any money in the treasury not otherwise appropriated."

3. Under the provisions of sec. 1, art. 13, of the constitution creating the office of immigration commissioner, and sec. 1418 of the Rev. Codes, as amended by the 1911 Session (1911 Sess. Laws, p. 564), prescribing the salary of immigration commissioner, and sec. 276 of the Rev. Codes, providing that the salary of a state officer shall be paid "out of any money in the treasury not otherwise appropriated," held, that these provisions of law constitute an appropriation within the purview and meaning of sec. 13, art. 7, of the constitution, which provides that "no money shall be drawn from the treasury, but in pursuance of the appropriations made by law." It is also further held that under the foregoing provisions of law it was not necessary for the last session of the legislature to make a specific appropriation in the general appropriation bill for the office of commissioner of immigration, labor and statistics, in order to enable the commissioner to draw his salary as provided by law.

4. The legislative intent that controls in the construction of statutes has reference to the legislature which passed a given act, and that intent is indicated by the action of the legislature and not by their failure to act. Legislative intent is not gathered from the failure of a legislature to pass any particular act or legislation; the intent is gathered from the things they do.

Original action for a writ of mandate. Writ granted.

No costs awarded.

E. G. Davis, for Petitioner.

The constitution having provided by law for a certain office and the legislature having fixed the salary thereof and having provided the manner of its payment, no further specific appropriation of funds is necessary to pay the salary so fixed by law.

It is not necessary for the legislature to appropriate specifically for the payment of the salary of such office at each recurring session of the legislature; the law creating the office, fixing the salary and designating the manner of its payment will be construed as a continuing appropriation for this purpose.

The legislature in enacting chapter 178, Laws of 1913, specifically recognized the salary of the state commissioner of immigration, labor and statistics and authorized its payment, notwithstanding the fact that the same was not included in the general appropriation. (State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266; State v. Eggers (Nev.), 128 P. 986; State v. King, 108 Tenn. 271, 67 S.W. 812; Hegwer v. Goodykoontz, 22 Colo. 507, 45 P. 414; Reynolds v. Taylor, 43 Ala. 420; Thomas v. Owens, 4 Md. 189.)

"To an appropriation within the meaning of the constitution nothing more is requisite than a designation of the amount and the fund out of which it shall be paid." (Proll v. Dunn, 80 Cal. 220, 22 P. 143; Humbert v. Dunn, 84 Cal. 57, 24 P. 111; McCauley v. Brooks, 16 Cal. 11; State v. Weston, 4 Neb. 216; State v. Moore, 50 Neb. 88, 61 Am. St. 538, 69 N.W. 373; Shattuck v. Kincaid, 31 Ore. 379, 49 P. 758.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, for Respondent.

The distinction between the case of Thomas v. Owens and the case at bar is that in the Owens case the constitution fixed the salary, and provided that the controller should receive it, while in the case at bar, the constitution did nothing more than create the office, and the provision as to salary is dependent entirely upon statute. See, also, Myers v. English, 9 Cal. 341, which laid down the principle that there was no distinction to be made between a statutory and a constitutional provision fixing a salary, and that they were susceptible of precisely the same interpretation.

We have, then, at the outset, two equally well-considered cases, the one holding that a constitutional provision fixing salaries is an appropriation, and the other that a statute fixing a salary in pursuance of the constitutional mandate is not an appropriation.

Other courts have had occasion to construe these two cases together on questions similar to the one here raised. (State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403.)

A case very similar to the California case arose in Oregon in 1897, viz., Shattuck v. Kincaid, 31 Ore. 379, 49 P. 758.

As bearing out the theory that the legislature did not intend an appropriation, we also cite Menefee v. Askew, 25 Okla. 623, 107 P. 159, 27 L. R. A., N. S., 537, and Pickle v. Finley, 91 Tex. 484, 44 S.W. 480; State v. Weston, 4 Neb. 216; State v. Weston, 6 Neb. 16, and United States v. Fisher, 109 U.S. 143, 3 S.Ct. 154, 27 L.Ed. 885.

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This is an original action for a writ of mandate.

The question involved is the right of the plaintiff to have a state warrant issued to him for the payment of his salary as state immigration commissioner. The state constitution (sec. 1, art. 13) provides that "There shall be established a bureau of immigration, labor and statistics, which shall be under the charge of a commissioner of immigration, labor and statistics, who shall be appointed by the governor, by and with the consent of the senate. The commissioner shall hold his office for two years, and until his successor shall have been appointed and qualified, unless sooner removed. The commissioner shall collect information upon the subject of labor, its relation to capital, the hours of labor and the earnings of laboring men and women, and the means of promoting their material, social, intellectual and moral prosperity. The commissioner shall annually make a report in writing to the governor of the state of the information collected and collated by him, and containing such recommendations as he may deem calculated to promote the efficiency of the bureau." In pursuance of the terms of this provision of the constitution, the legislature enacted sec. 1418 of the Rev. Codes, as amended in 1911 (1911 Sess. Laws, p. 564), which provides in part as follows:

"It shall be the duty of the governor, by and with the consent of the senate, to appoint a competent person as commissioner of immigration, labor and statistics, who shall have charge of said bureau, and who shall hold his office for the term provided in said article 13 of the constitution. He shall receive a salary of twenty-four hundred dollars a year, and such additional sum for general expenses, including his traveling expenses, printing, clerical hire and other actual and necessary expenses of his office, as the legislature shall authorize and appropriate, to be paid as are the salary and expenses of other state officers."

It will be observed, therefore, that the constitution does not fix the salary of the commissioner of immigration, labor and statistics, but that the legislature has, on the other hand by sec. 1418, supra, fixed the salary at $ 2,400 per annum. It has been the custom of the legislature at every session since the office of immigration commissioner was established to incorporate in the general appropriation bill an appropriation for salaries and office expenses in the department of the commissioner of immigration. The last session of the legislature, however, failed to make any appropriation for that department, and so the question is presented in this case as to whether there is any appropriation for the salary of the immigration commissioner against which the auditor can draw his warrant. The last session of the legislature did not repeal sec. 1418 of the Rev. Codes, as amended in 1911 (1911 Sess. Laws, p. 564), which fixes the salary of the commissioner, and so that statute remains in force and effect. The office, however, was created by the constitution (sec. 1, art. 13). All that remained for the legislature to do was to prescribe the salary and the compensation of the commissioner, and the duties to be discharged by him and make such appropriation for the office as they deemed necessary. The legislature might, however, at any time render the constitutional provision creating the office ineffective and inoperative by repealing the statute fixing the salary and prescribing the duties of the office. It stands, however, as an admitted fact in the case, that the office is a constitutional office and that it is occupied by an appointee of the governor and that the statute fixes the salary of the official at...