State ex rel. Hibbard v. Cornell

• Decision Date: 07 June 1900
• Parties: STATE EX REL. HIBBARD v. CORNELL, AUDITOR.
• Court: Nebraska Supreme Court

60 Neb. 276

83 N.W. 72

STATE EX REL. HIBBARD

v.CORNELL, AUDITOR.

Supreme Court of Nebraska.

June 7, 1900.

Syllabus by the Court.

1. Bills making appropriations for salaries of officers of the state government are prohibited by section 19, art. 3, of the constitution from containing a provision on any other subject.

2. This constitutional restriction is not confined alone to officers created by the constitution, but extends to all officers of the state government, whether their salaries are fixed by the constitution, or their compensation is left to legislative discretion.

3. While a practical interpretation of the constitution by the legislature will not be lightly disregarded in doubtful cases, yet, when the language of the constitution is free from ambiguity, an interpretation thereof by the legislative department cannot be invoked to nullify the fundamental law.

4. The deputy food commissioner created by chapter 35, Laws 1899, is an officer of the state government, and not a mere employé.

5. Section 12 of said chapter 35, making appropriation for salary of deputy food commissioner, is inimical to section 19, art. 3, of the constitution, since other portions of said act contain legislation upon another subject.

Application for mandamus by the state, on the relation of one Hibbard, against State Auditor Cornell, to compel action on relator's claim for salary. Writ denied.C. J. Smyth, W. D. Oldham, A. M. Post, and E. J. Hainer, for relator.

W. B. Price, for respondent.

NORVAL, C. J.

This is an original application for peremptory writ of mandamus to require the respondent, as auditor of public accounts, to audit and adjust the claim of relator against the state for salary as deputy food commissioner. Relator was appointed to said position by the governor on or about July 1, 1899, in pursuance of chapter 35, Laws 1899. This act is entitled “An act creating a food commission; defining its powers and duties and of the officers and agents thereof; regulating the manufacture and sale of foods, including imitation butter, and imitation cheese, and dairy products; providing for a system of reports, inspection and permits, and fixing fees for the same; providing penalties for the violation of this act; making an annual appropriation for carrying this act into effect; and repealing all acts and parts of acts in conflict herewith.” The act purports, inter alia, to create a food commission; to make the governor the food commissioner, with authority to appoint a deputy food commissioner, at a salary of $1,500 per annum, payable monthly, together with his expenses actually and necessarily incurred in discharging the duties of his office; to authorize such deputy to employ a clerk, at a salary not to exceed $75 per month; to define the duties of the food commission and its commissioners; to require dealers in imitation butter and imitation cheese to make reports; to provide for permits for dealers and manufacturers of certain articles, and for the inspection thereof; to prescribe fees, and to provide for their payment into the state treasury, and penalties for the violation of the provisions of the act. The twelfth section declares: “There is hereby annually appropriated out of the funds of the state, not otherwise appropriated, for the purpose of carrying into effect the provisions of this act, the sum of five thousand dollars ($5,000): provided, that the amount paid out shall in no case exceed the amount received by the state, as provided for in this act.”

The respondent refuses to audit the claim for the reason that said section 12 of the act contravenes section 19, art. 3, of the constitution, which provides, inter alia, “Bills making appropriations for the pay of members and officers of the legislature and for salaries for officers of the government shall contain no provision on any other subject.” This provision of the fundamental law is plain enough. It requires that legislative acts which...