State Ex Rel. Fornoff v. Sargent

• Decision Date: 16 October 1913
• Citation: 18 N.M. 272,136 P. 602
• Parties: STATE EX REL. FORNOFFv.SARGENT, STATE AUDITOR.
• Court: New Mexico Supreme Court

18 N.M. 272

136 P. 602

STATE EX REL. FORNOFF

v.SARGENT, STATE AUDITOR.

Supreme Court of New Mexico.

Oct. 16, 1913.Rehearing Denied Dec. 1, 1913.

Syllabus by the Court.

Where the Constitution of a state creates an office and prescribes the salary for such office, the necessity for legislative appropriation for such office is dispensed with, on the ground that such provision in a state Constitution is proprio vigore an appropriation.

This rule has been extended to a general law fixing the salary of a public officer, and prescribing its payment at particular periods.

Held, that the act of 1905 (chapter 9), creating a force of mounted police, fixing salaries of its members, and providing for payment thereof, was repealed by the act of the Legislature of 1909 (chapter 127, § 4), in so far as it provided for salaries and membership of the force, and that therefore a writ of mandate directed to the State Auditor, requiring him to make a levy to pay such salaries, is not issuable, because the appropriation by the act of 1905 has ceased to be a continuing appropriation, and the Legislature has failed to make appropriation for the present fiscal year.

When a statute professes to repeal absolutely a prior law, and substitutes other provisions on the same subject, which are limited only till a certain time, the prior law does not revive after the repealing statute is spent, unless the intention of the Legislature to that effect be expressed.

Additional Syllabus by Editorial Staff.

The rule that, where a general law fixes the amount of a public officer's salary and prescribes its payment at particular periods, this constitutes a continuing appropriation, and dispenses with the necessity for subsequent legislative appropriations for such salaries, is not violative of Const. art. 4, § 30, providing that “except interest or other payments on the public debt, money shall be paid out of the treasury only upon appropriations made by the Legislature.”

Appeal from District Court, Santa Fé County; before Justice Abbott.

Mandamus by the State, on relation of Fred Fornoff, Captain Mounted Police, against William G. Sargent, Auditor of the State. From a judgment sustaining a demurrer to the answer, respondent appeals. Reversed and remanded, with directions.

This is an action in mandamus to compel the State Auditor, William G. Sargent, to make a tax levy, sufficient to raise $12,000 for the support and maintenance of the Mounted Police of the State, upon the theory that by the legislative act (chapter 9, Laws of 1905) creating such force, a continuing appropriation was made for the salaries and expenses of said force, and the failure of the Legislature, at the session held this year, to appropriate for the salaries and expenses of said force does not justify a failure, upon the part of the State Auditor, to make a levy for the purpose aforesaid. To the petition for the writ an answer was filed by respondent, setting up, among other things, that section 4, c. 127, of the Laws of 1909 repealed the provisions of chapter 9 of the Laws of 1905, under which it was claimed by relator that a continuing appropriation had existed, and that he was only under the duty of making tax levies to meet the appropriation made by the legislative session of the year 1913. A demurrer to this answer was filed and sustained by the lower court, from which judgment the respondent appealed.

Where a statute purports to repeal a prior law and substitute other provisions on the same subject, which are limited only until a certain time, the prior law does not revive after the repealing statute is spent.

Ira L. Grimshaw, Asst. Atty. Gen., for appellant.

Francis C. Wilson, of Santa Fé, for appellee.

HANNA, J.

The first error assigned is predicated upon the action of the district judge in sustaining the demurrer to the answer.

By the act of 1905 (chapter 9) providing for the organization and equipment of the mounted police, it was provided that the Governor be authorized to muster into service one company of police, to consist of one captain, who should receive $2,000 per annum as salary; one lieutenant at $1,500 per annum, one sergeant at $1,200 per annum and not more than eight privates at $900 per annum. After providing for the equipment and duties of the officers and men, the act provided (section 12) that “it shall be the duty of the auditor of this territory to draw his warrant on the territorial treasurer at the end of each month for the pay of each officer and man in said company,” and by section 13 of the same act, it was further provided that there should be annually levied and collected a tax of one-half mill, to constitute a fund known as the “New Mexico Mounted Police Fund,” upon which warrants should be drawn.

By section 14 of the act of 1905 the total cost and expense of the organization, equipment, and support of said company was limited to $13,000 for any one year.

The act of 1905 continued in force unamended until the Legislature of 1907 (Laws 1907, c. 89, § 20), as a part of the appropriation bill passed at that session, increased the salary of members of the force by $25 monthly, in lieu of expenses and railroad fare, for each member, and making appropriation for the fifty-eighth, fifty-ninth and sixtieth fiscal years to cover such increase of salary.

This act of the Legislature recognized the continuing character of the appropriation provided by the act of 1905, except so far as it impliedly repealed the appropriation for expenses of members of the force, which was covered by section 14 of the 1905 act, thus leaving that act providing only for the salaries as increased by the act of 1907, and contingent fund of not to exceed $12,000 per annum provided for by section 15 of the act.

In 1909 the Legislature made provision for the mounted police in the appropriation bill of that session, by appropriating for the support and maintenance of the force, $12,000, or so much thereof as might be necessary; it being further provided by this act that the force should consist of one captain, one sergeant, and four privates, and the salaries of each were fixed at $2,000, $1,500, and $1,200 per annum respectively. It is to be noted that this was a departure from the terms of the act of 1905, providing for the organization of the force, in that the force was reduced by the elimination of the lieutenant and four privates.

The act of 1909 also provided for the payment of actual and necessary expenses of members when necessarily absent from their stations, and for authority in the Governor to appoint additional members temporarily, when necessity therefor existed, to be paid at the same rate as privates of the regular force. The provisions thus contained in the appropriation bill of 1909 for the mounted police concluded with the proviso “that chapter 9, Laws of 1905, in so far as the same is in conflict with the above provisions, is hereby repealed and section 13, of said act, directing the Territorial Auditor to make a levy for the support of the mounted police of one-half mill is hereby specifically repealed, and the Territorial Auditor is hereby directed, when making levies for other purposes, to include a levy sufficient to cover the appropriation above named for the support of the mounted police herein.” This last-mentioned act of the Legislature continued in full force and effect until the session of the first state Legislature, which met in 1912, when the same provisions of the appropriation bill, as passed by the Legislature of 1909, with reference to the mounted police, were re-enacted as a part of the appropriation bill of 1912, except that the provision of the 1909 act, directing the Auditor to make a levy sufficient to cover the appropriation, was omitted from the act of 1912. The appropriation bill thus passed by the Legislature of 1912 (chapter 83, Laws of 1912) was limited to the first fiscal year under statehood, and in 1913 the Legislature failed to make any...