State ex rel. Buck v. Hichman

• Decision Date: 13 April 1891
• Parties: STATE ex rel. BUCK v. HICHMAN, Treasurer.
• Court: Montana Supreme Court

26 P. 386

10 Mont. 497

STATE ex rel. BUCK v. HICHMAN, Treasurer.

Supreme Court of Montana

April 13, 1891

Application for mandamus.

B. P Carpenter, for relator.

H. J Haskell, Atty. Gen., for respondent.

BLAKE C.J.

The relator prays that a peremptory writ of mandate be issued out of this court, commanding the state treasurer to pay a certain warrant which had been drawn by the state auditor under the following circumstances: The relator was appointed February 28, 1891, a judge of the district court for the first judicial district, and has discharged the duties of the office since that time. The salaries of the district judges of the state are payable quarterly, and one of such quarters ended March 31, 1891, at which time there was due to the relator the sum of $301.39. The state auditor then issued his warrant to the relator, drawn upon the respondent, for the said sum, in payment of said salary. The state treasurer refuses to pay this warrant, and in his answer sets forth these facts, which are conceded. The legislative assembly prior to the 5th day of March, 1891, at the second session thereof, appropriated by several statutes for state purposes the sum of $464,084. The moneys in the treasury of the state being the sum of $148,400, have been set apart in accordance with certain appropriation laws, which are specified. The legislative assembly, by an act which was approved March 5 1891, appropriated the sum of $20,000 to pay the salaries of the relator and other district judges who had been appointed in pursuance of statutes passed during said second session. At the date of the passage of the acts creating the office to which the relator was appointed, and providing for the payment of his salary, there was not, and has not been, any moneys in the treasury of the state applicable thereto. The respondent has paid the sum of $234,000 on account of the appropriations which are specified, and there remains unpaid the sum of $230,084. The constitution declares that "the legislative assembly may increase or decrease the number of judges in any judicial district." Article 8, § 14. By an act approved February 28, 1891, an additional judge was authorized for the district court of the first judicial district of the state, and the relator was appointed to the office. It was enacted February 27, 1891, that the district judges whose offices may be established by the legislative assembly, "shall receive the same compensation as is now or may hereafter be provided by law for judges of the district courts." There is no legislation of this character, but the salary has been fixed by the constitution in this section: "The judges of the district court shall each be paid quarterly, by the state a salary, which shall not be increased or diminished during the terms for which they shall have been respectively elected. Until otherwise provided by law, *** the salary of the judges of the district courts shall be three thousand five hundred dollars per annum each." Id. § 29. It is further declared that "vacancies in the...