Smith v. Page
| Decision Date | 02 March 1936 |
| Docket Number | 4-4126 |
| Parties | SMITH v. PAGE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor modified and affirmed.
Judgment reversed, and modified.
Griffin Smith, for appellants.
Carl E. Bailey, Attorney General, and Thomas Fitzhugh, Assistant, for appellees.
The action from which this appeal arises was filed in Pulaski Chancery Court, June 17, 1935, by appellant, as a taxpayer and State Comptroller, against the Auditor and Treasurer of State, alleging that the Legislature of 1933 failed to appropriate funds for the payment of salaries of prosecuting attorneys for the period from July 1, 1933, to June 30, 1935 that the prosecuting attorneys hold salary vouchers or warrants for part of this period, issued under the provisions of act 227 of 1935; that unless restrained the Treasurer will pay these warrants from current cash balances standing to the credit of the general revenue fund, or the general revenue sinking fund, and the Auditor will issue certificates of indebtedness to prosecuting attorneys covering salary installments for which no appropriation was made. It was asked that the Treasurer and Auditor be enjoined from doing these things, which were alleged to be illegal because of no legislative appropriation or the limited appropriation under act 227. The defendants demurred to the complaint. September 12, 1935, the court sustained the demurrer and dismissed the complaint, and also enjoined the issuance or payment of warrants based on allowances under act 227 and ordered the cancellation thereof and the issuance of warrants for the unpaid salaries and their payment from the current general revenue fund.
The question presented is whether the relevant provisions of the Constitution of Arkansas are to be construed as requiring a legislative appropriation before the salaries of prosecuting attorneys can be paid or whether the Constitution authorizes such payment without legislative appropriation. We hold that the Constitution provides a continuing appropriation, for this purpose, and that the salaries may be paid without legislative appropriation.
Prosecuting attorneys are constitutional State officers, § 24, art. 7, Const.; Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380, acting in a quasi- judicial capacity. Holder v. State, 58 Ark. 473, 25 S.W. 279; 481. Section 2, art. 19, Const., provides: "* * * Prosecuting attorneys shall each receive a salary, to be established by law, which shall not be increased or diminished during their respective terms * * * provided, that the salaries * * * herein mentioned * * * shall never exceed per annum * * * the sum of $ 400." .
Section 28, Schedule, provides that this salary is to be paid per annum "for their services" for the period of two years from the adoption of this Constitution, and until otherwise provided by law.
The salary has since been fixed at $ 200 per annum, ($400, 7th Circuit), act June 2, 1911; § 8692, Crawford & Moses' Digest; act March 4, 1933.
The constitutional provisions on the subject of legislative appropriations and payments and fixing of salaries are as follows: Section 29, art. 5: "No money shall be drawn from the treasury except in pursuance of specific appropriations made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years."
Section 30, art. 5: "The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject."
Section 12, art. 16: "No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation."
From 1875 to 1933, the Legislature made appropriations for these salaries to be paid out of general revenue. These appropriations were set forth with the provisions for the judicial branch of the Government. In 1933 the salaries provided by the Constitution for prosecuting attorneys were not appropriated. The usual appropriation for this purpose was resumed in 1935.
The Legislature in 1931 appropriated large sums in biennial, supplemental and deficiency measures. In the next two years deficits occurred in the revenues. Taxes were not paid or the tax sources fell off, as is known to all. Before the passage of appropriation bills in 1933, act 4 of January 27 was adopted. It provides that "no State officers, bureau, commission, department or institution, excepting only the constitutional officers and the courts, shall function or operate unless there has been a prior appropriation by the General Assembly to pay the expenses of such operation."* The Comptroller is to keep advised at all times as to the actual revenues and probable receipts, and report to the Governor, who shall have authority to reduce any and all appropriations, "constitutional allowances" excepted. Act 5 was adopted January 27, 1933. It provides that on and after July 1, 1933, 20 per cent. of all moneys accruing to the general revenue fund from all sources shall be placed in a sinking fund for the purpose of retiring obligations of the State payable from the general revenue fund and outstanding against that fund on January 10, 1933; that from and after the passage of the act all unexpended balances and all accruals to the general revenue fund are impounded, and all thereof, except the portion going into the sinking fund, are set apart for the payment of current expenses of the various departments of the Government, to the end that the State may operate on a cash basis and within the limits of its income and pay its outstanding obligations; that after the passage of the act no more than 80 per cent. of the unexpended balance as of January 10, 1933, of the appropriation for any institution, department, or agency for the biennial period ending June 30, 1933, shall be drawn, with this proviso: "* * * The provisions hereof shall not apply to or affect the salary of any officer where such salary is fixed by the Constitution and the amount payable on such salary shall be deducted from the appropriation before the percentages herein provided for are computed."
It will be seen that this act does not impound or appropriate for the sinking fund any part of the general fund necessary to pay salaries fixed by the Constitution.
Act 230, adopted March 28, 1933, creates a Commission composed of three State officers to adjust claims filed with the Comptroller prior to March 9, 1933, and appropriates sums from various funds for such purposes, including $ 70,000 from the general revenue fund, "subject to the terms of act 5 of the Acts of 1933 or any subsequent amendments thereto." The Commissioners, after allowing claims, may allow vouchers therefor, for which the Auditor may issue warrants to be paid from the general revenue sinking fund.
It is seen from the foregoing that constitutional salaries, that is salaries of constitutional officers, and the fund from which payment would be made, are not included in, but are excepted from, the operation of these statutes.
Act 227 was adopted March 27, 1935. It provides a claims commission "for the period terminating with the convening of the 51st General Assembly." The Commission is to audit adjust and allow all claims presented in the form of bills in either branch of the 50th General Assembly, and all filed with the State Comptroller prior to the effective date of the act. Sums for payment of claims so allowed are appropriated from various funds, including $ 93,165.40 from the general revenue fund, and as to such claims as are so audited. "Warrants issued in payment of claims against the general revenue fund shall be payable from the general revenue sinking fund in sequence of...
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