Riley v. Carter

• Decision Date: 08 September 1933
• Docket Number: Case Number: 24903
• Citation: 165 Okla. 262,25 P.2d 666,1933 OK 448
• Parties: RILEY v. CARTER
• Court: Oklahoma Supreme Court

1933 OK 448

25 P.2d 666

165 Okla. 262

RILEY v. CARTER

Case Number: 24903

Supreme Court of Oklahoma

Decided: September 8, 1933

Syllabus

¶0 1. States--Appropriation for Salaries of Justices of Supreme Court Held Made by Constitution, Requiring Payment of Such Salaries Though Sufficient Appropriation Therefor not Made by Legislature.

Under the Oklahoma Constitution, art. 25, (Schedule), sec. 16, declaring that certain state officers shall receive a certain sum as compensation, and section 3481, O. S. 1931; and article 23, sec. 10, Oklahoma Constitution, declaring that in no case shall the salary or emoluments of any public official be changed after his election or appointment unless by operation by law enacted prior to such election or appointment; and art. 5, sec. 55, Oklahoma Constitution, declaring that no money shall ever be paid out of the treasury of this state except in pursuance of an appropriation by law--the salaries of the Justices of the Supreme Court are required to be paid though the Legislature has failed to make a sufficient appropriation therefor, as the appropriation is made by the Constitution itself.

2. Mandamus--Remedy to Compel State Auditor to Issue Warrants to Pay Salaries of Constitutional State Officers.

A mandamus is the proper remedy to compel the State Auditor to issue his warrant on the State Treasurer for the payment of the salary of constitutional state officers, including the Justices of the Supreme Court.

Original proceeding in Supreme Court by Fletcher Riley for peremptory writ of mandamus against F. C. Carter, State Auditor, and Ray O. Weems, State Treasurer. Writ granted.

Fletcher Riley, pro se.

J. Berry King, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for respondents.

W. A. Ledbetter, amicus curiae.

¶1 BIGGERS, Special V. C. J. This is an original action instituted in this court by the petitioner, Fletcher Riley, who alleges that he is a member of the Supreme Court of the state of Oklahoma; that he was elected a Justice of this court from the Ninth district at the general election held in November, 1930, and assumed the duties of his office in January, 1931; that at the time of his election, section 3481, O. S. 1931, Laws of Oklahoma 1929, chapter 273, sec. 1, was in full force and effect, and that said act fixed the salary of a Justice of the Supreme Court of this state at the sum of $ 7,500 per year, payable monthly. He further alleges that the respondent F. C. Carter is the duly elected, qualified, and acting State Auditor, and that the respondent Ray O. Weems is the duly elected, qualified, and acting State Treasurer; that for the month of July, 1933, he presented to the respondent F. C. Carter, State Auditor, in the form required by law, a claim for his salary for said month in the sum of $ 625, and that said F. C. Carter, State Auditor, refused to allow said claim in the amount of $ 625, but did allow said claim for the sum of $ 500, and issued his warrant payable to petitioner for the sum of $ 500, which petitioner refused to accept. He further alleges that the respondent F. C. Carter, State Auditor, will in the future refuse to allow the claim of petitioner for his salary as a Justice of the Supreme Court of this state in any sum other than the sum of $ 500 per month, and that the respondent Ray O. Weems, State Treasurer, will refuse to pay any warrant issued in payment of his salary in excess of the sum of $ 500, and he prays this court that it issue a writ of mandamus commanding and requiring the respondent F. C. Carter, State Auditor, to allow said claim in the sum of $ 625, and to issue a warrant therefor, and commanding and requiring the respondent Ray O. Weems, State Treasurer, to pay said warrant so issued, or to indorse thereon the proper notation as is by law provided for the allowance of interest thereon.

¶2 The petitioner contends that, his salary being fixed at the sum of $ 7,500 per year at the time of his election, and being payable monthly at the rate of $ 625 per month, any act of the Legislature which has for its purpose or the result of which would amount to a change in said salary during his term of office is contrary to and prohibited by the Constitution of this state, and that if the Legislature was without constitutional authority to directly change his salary during his tenure of office, they could not indirectly accomplish this purpose by withholding their appropriation.

¶3 The respondents have filed separate responses to the petition of petitioner, and the respondent F. C. Carter, State Auditor, has alleged in his response: (1) He admits that petitioner filed with him his claim for the sum of $ 625 for the salary due petitioner as a Justice of the Supreme Court for the month of July, 1933, and that respondent allowed said claim in the sum of $ 500 but disallowed said claim in the sum of $ 125 by indorsing thereon "Claim disallowed in the sum of $ 125 by reason of inadequate appropriation", and that he drew and tendered to petitioner a warrant in the sum of $ 500 payable to petitioner, but that petitioner refused to accept same; (2) that respondent refused to allow said claim in the sum of $ 625 for the reason that the General Appropriation Act, Senate Bill No. 27, passed at the Regular Session of the 14th Legislature, appropriated for the fiscal year beginning July 1, 1933, and ending June 30, 1934, the sum of $ 54,000 for the payment of the salaries of the nine Justices constituting the Supreme Court, and incorporated in said bill the following provisions: "Provided, That the salaries provided in this bill shall be paid monthly in twelve equal payments for each year," and that by reason thereof he was and is without authority to issue a warrant for the July, 1933, salary of petitioner in a sum in excess of the sum of $ 500; (3) that respondent is without authority to issue to petitioner a warrant in the sum of $ 625 for his July, 1933, salary because same would be for a sum in excess of the amount appropriated by the Legislature for that purpose, and therefore in violation of section 3568, O. S. 1931; (4) that the respondent is without authority to issue a warrant to petitioner in the sum of $ 625 for his July, 1933, salary for the reason that the issuance of a warrant in that amount would be in violation of section 55, art. 5, of the Constitution of Oklahoma; (5) that the appropriation of the public funds of the state is strictly a legislative prerogative, and that neither he, as State Auditor, nor this court, as a part of the judicial branch of this government, can make an appropriation or increase an appropriation made by the Legislature, for to do so would violate section 1, art. 4, of the Constitution of Oklahoma; (6) that the writ of mandamus is a discretionary writ, and even though petitioner may show himself as entitled to a right for which mandamus may be the proper remedy, that the economic conditions now existing in this state and generally are such that the court in the exercise of the discretion vested should refuse the issuance of the writ.

¶4 The respondent Ray O. Weems, State Treasurer, has filed his response alleging: (1) That there was presented to him by the State Auditor a warrant drawn upon the general funds of this state payable to petitioner and in the sum of $ 500 in payment of the July, 1933, salary of petitioner as a Justice of the Supreme Court of this state, and that he registered same as a payable warrant, and that said warrant has never been presented to him for payment; (2) that no warrant in the sum of $ 625 in payment of the July, 1933, salary of petitioner as a Justice of the Supreme Court of this state has ever been presented to him, and that, therefore, he has not failed or refused to perform any duty enjoined upon him by law in so far as the payment of petitioner's salary for the month of July, 1933, is concerned; (3) that, while no warrant in the sum of $ 625 for the July, 1933, salary of petitioner has been presented to him, if such situation should arise he would be without authority to either register or pay same because to do so would be in violation of sections 3558, 3568, and 3764, O. S. 1931, and section 55, art. 5, Oklahoma Constitution; and he further adopts as his defense all of the allegations set forth in the response filed herein by F. C. Carter, State Auditor.

¶5 From this it will be seen that both respondents contend that to have issued a warrant in the sum of $ 625 for the July, 1933, salary of petitioner and to have paid said warrant would have violated and will violate the provisions of the Constitution and statutes quoted, and that this court is without authority to either make an appropriation of the public funds of this state or to increase an appropriation already made by the Legislature, and that even though we hold that the petitioner has shown a clear legal right to the writ, this court should, in the exercise of its discretion, withhold same. It will be seen, then, that the real question to be decided is, Did the framers of the Constitution and the people who adopted same fail to make an appropriation in the Constitution itself for the payment of the salaries of the judges of this state and thereby make the judiciary of this state dependent upon the Legislature for their compensation and the amount thereof? Clearly this result follows if no appropriation is made in the Constitution to pay the salaries of the judges of this state, as no other branch of this government has any right or authority to make appropriations save the people themselves or their representatives in the Legislature, and it is provided in the Constitution that no money can be drawn from the treasury of this state except in pursuance of an appropriation by law.

¶6 In view of the importance of the question involved, we shall first discuss the suggestion made in the pleadings, oral argument, and briefs filed, that we should consider the effects flowing from the issuance of the writ, and that...