State ex rel. Davis v. Cutler

• Decision Date: 28 May 1908
• Docket Number: 1927
• Citation: 34 Utah 99,95 P. 1071
• Court: Utah Supreme Court
• Parties: STATE ex rel. DAVIS v. CUTLER et al

95 P. 1071

34 Utah 99

STATE ex rel. DAVIS v. CUTLER et al

No. 1927

Supreme Court of Utah

May 28, 1908

Original application in the Supreme Court for mandamus by the State, on relation of Justin R. Davis, petitioner, against John C. Cutler and others, constituting the State board of examiners.

JUDGMENT FOR PETITIONER.

Thurman Wedgwood & Irvine for petitioner.

M. A Breeden, Atty. Gen., and A. R. Barnes, Asst. Atty. Gen., for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an original proceeding commenced in this court by the relator as court stenographer for Hon. C. W. Morse, one of the judges of the district court of the Third judicial district of this state, against the respondents, constituting the state board of examiners of the state of Utah. The same matters involved in this proceeding were before this court in the case entitled State v. Edwards, 93 P. 720, where we held that, in view of certain constitutional provisions, the claim in question is one which ought to be presented for allowance to the state board of examiners. It now appears from the pleadings that the claim has been so presented to and has been disallowed by said board of examiners, and the relator has therefore instituted this proceeding to compel said board to audit and allow the claim in question.

The claim of the relator arises under a legislative act passed in 1899 (Laws 1899, p. 112, c. 72), which act has been carried into the compiled Laws of Utah of 1907, constituting sections 721 to 728xl, inclusive, of that compilation, and which compilation will hereafter be referred to instead of the original act. By sections 721 and 722 among other things it is in substance provided that the judges of the district courts of this state may contract with and employ competent persons as court stenographers to report the proceedings of such courts; that said contracts shall provide that such stenographers shall attend each sitting of the court and make full stenographic notes of the testimony and proceedings, which notes shall be filed with the clerk of the court; that such contracts shall provide the rate of compensation to be paid to the stenographers, which shall not exceed the sum of $ 8 for "each sitting of the court;" that "such contract shall further provide that the said stenographer shall hold his employment at the pleasure of the judge of the court appointing him, or his successor, and may also provide that said stenographer shall be paid not to exceed ten cents per mile for each mile actually traveled by him in the performance of his part of said contract, and the amount of such mileage shall be certified by the court to the State Auditor, who shall draw his warrant upon the State Treasurer for the amount to certified, and the same shall be paid out of the state treasury." Under the provisions aforesaid the relator instituted proceedings asking for a writ of mandate to compel the State Auditor to draw a warrant for the mileage certified to by the judge, as appears from the case of State v. Edwards, supra. The writ was denied in that case for the reasons there stated. Since that decision the relator has presented the claim for allowance to respondents, constituting the state board of examiners, and that board has rejected his claim upon the ground, as we understand it, that the judge did not certify that the amount of the claim for mileage, to wit, ten cents per mile, was actually paid by the stenographer, and that the stenographer did not claim that the amount was actually paid by him in traveling from place to place while engaged in the performance of official duties under the contract.

It is admitted by respondents that the relator is a duly appointed court stenographer; that he entered into a contract with the district judge aforesaid as provided in the sections above referred to; that the number of miles as claimed by him were actually traveled in the discharge of official duties in pursuance of said contract; that the contract provides for mileage at the rate of ten cents per mile; and that the certificate of the judge is regular upon its face. Indeed there is no dispute with regard to any matter of fact, but the board justify their action in disallowing the claim entirely upon questions of law, viz.: (1) That the judge did not have the authority to contract for mileage in excess of the amount actually paid, and in no event to exceed ten cents per mile; and (2) that in the general appropriation bill of 1907 the Legislature limited the payment of mileage to be paid to court stenographers to the amount actually paid out by them. In view of this, it is asserted by respondents that, since it is not made to appear that the mileage claimed by the relator was actually paid by him, he therefore does not state sufficient facts to entitle him to the relief prayed for notwithstanding the admitted facts. Upon the oral argument the deputy attorney general did not seriously contend that the judge did not have the authority, under the provisions of the section above quoted, to contract for and allow mileage to the extent of ten cents per mile. Indeed the language of the statute is so plain upon that point that it requires no construction. We, therefore, need not dwell upon the reasons why the Legislature permitted the judge and stenographer to agree upon the rate of mileage within the limits fixed in the statute. It being admitted that the claim of the relator is for mileage actually traveled in pursuance of a contract duly entered into in January, 1905, and that the amount claimed is within the rate allowed by the law in pursuance of which the contract was entered into and under which it was in force at the time the mileage was earned, there seems no escape from the conclusion that the contention of the respondents that the facts stated upon this ground are insufficient should be overruled.

The respondents, however, contend that the relator cannot recover the amount claimed by him because the Legislature, in the general appropriation act of 1907 (Laws 1907, p. 172, c 123), limited the mileage to be paid to the amount actually paid by the stenographer; that the relator does not allege that the amount claimed by him was actually paid for that purpose; and that therefore the allegations are insufficient to entitle him to recover. It is true that under the general title of "an act making appropriations for general purposes" the Legislature, in making the usual appropriation for the two following years for mileage and per diem for court stenographers, limited the payment for mileage to the amount actually paid. It seems clear to us, however, that it was not the intention of the Legislature to have this limitation apply to contracts in force under the section above referred to. It would be unreasonable to assume that the Legislature intended to amend or modify that section in the brief statement contained in the general appropriation act of 1907. But, if we assume that it was the intention to do this, did the Legislature have the power to amend, modify, or repeal a general law by merely inserting a conflicting clause or phrase into the general appropriation act? While under the Constitution general appropriation bills are exempted from the general constitutional provision which requires that all bills must contain but one subject, which must be clearly expressed in the title, it does not follow that general laws may be amended, modified, or repealed by a general appropriation act under such a general title. The Legislature had the undoubted right to amend, modify, or repeal the section in question in any respect and at any time. But in order to do this the Legislature would have to comply with the constitutional provision...