State v. Barnes

• Decision Date: 03 January 1889
• Citation: 5 So. 698,25 Fla. 75
• Parties: STATE ex rel. RUSSELL v. BARNES, Comptroller.
• Court: Florida Supreme Court

5 So. 698

25 Fla. 75

STATE ex rel. RUSSELL v. BARNES, Comptroller.

Florida Supreme Court

January 3, 1889

Mandamus to William D. Barnes, Comptroller.

Syllabus by the Court

SYLLABUS

The salary of the superintendent of public instruction has been since January 1, A. D. 1887, the day on which the constitution framed in 1885 went into effect, $1,500 per annum, as prescribed by the twenty-ninth section of the executive article. There is nothing in the constitution that defers the operation of the section named in its application to such officer to the first Tuesday after the first Monday in January, 1889, the day fixed for the installation of officers chosen at the election in November, 1888.

The constitution and laws impose upon the comptroller the duty of auditing the accounts of all officers, and provide that no funds can be disbursed by the treasurer, except upon the order of the comptroller, countersigned by the governor. Where the constitution prescribes the amount of an officer's salary, and the legislature has appropriated a sum more than sufficient to pay it and other salaries of the same class, the comptroller neither errs in his judgment nor transcends his authority in refusing to allow such officer a different amount than that prescribed by the constitution. Franklin Co. v. State, 24 Fla. 55, 3 South. Rep 471, distinguished.

COUNSEL D. S. Walker, Jr., for relator.

R. B Hilton, for respondent.

OPINION

RANEY J.

The relator was commissioned in the year 1885 as superintendent of public instruction under the constitution of 1868, as amended in 1871. That instrument fixed the salary of such superintendent at $2,000 per annum. Relator contends that he is entitled to be paid at this rate, and, the comptroller having refused to allow him more than $1,500 per annum for the year 1887, he asks for a mandamus to compel the issuance of a warrant on the state treasurer for the excess,--$500. He contends also that the legislation of 1887 provides for his payment for that year at the rate of $2,000.

The return of the comptroller to the alternative writ states that the present constitution, adopted in 1886, fixes the salary at $1,500, and that relator has been paid this sum for the year 1887; and, further, that while the legislature in the act making appropriations for the years 1887 and 1888 has provided a sufficient sum to pay to the relator a salary of $2,000 per annum, it has not been specifically declared by the legislation that he should receive such amount.

The first question to be decided is whether the new constitution fixes the salary of relator. It is contended in his behalf that the salary of $1,500 is prescribed by it for the officer who may be elected under its provisions, and has no application to the present office or its incumbent.

Section 20 of the fourth, or executive, article of the new constitution is as follows: 'The governor shall be assisted by administrative officers as follows:

A secretary of state, attorney general, comptroller, treasurer, superintendent of public instruction, and commissioner of agriculture, who shall be elected at the same time as the governor, and shall hold their offices for the same term: provided, that the first election of such officers shall be had at the time of voting for governor, A. D. 1888.' By section 28 of this article it is provided that 'the administrative officers of the executive department shall be installed on the same day as the governor.'

Section 2 of the same article provides that 'the first election for governor under this constitution shall be held at the time and places of voting for members of the legislature and state officers in A. D. 1888, and the term of office of the governor then elected shall begin on the first Tuesday after the first Monday in January after his election.' The governor's term of office is four years from the time of his installation.

The time of voting for members of the legislature in the year 1888 is the first Tuesday after the first Monday in November.

The twenty-ninth section of the same article is (substituting figures for words in some cases) as follows: 'The salary of the governor of the state shall be $3,500 a year; of the comptroller, $2,000; of the state treasurer, $2,000; of the secretary of state, $1,500; of the attorney general, $1,500; of the commissioner of agriculture, $1,500; of the superintendent of public instruction, $1,500 a year: provided, that no administrative officer of the executive department shall receive any additional compensation beyond his salary for any service or services rendered this state in connection with the internal improvement fund or other interests belonging to the state of Florida: provided, further, the legislature may, after eight years from the adoption of this constitution, increase or decrease any or all of said salaries.'

The new constitution having been ratified by the people in November, 1886, it, under ordinance No. 1, went into effect on the 1st day of January, A. D. 1887.

The first section of article 18--the 'Schedule'--is as follows: 'The constitution adopted A. D. 1868, with amendments thereto, is declared to be superseded by this constitution. But all rights, actions, claims, and contracts, both as respects individuals and bodies corporate, shall continue to be as valid as if this constitution had not been adopted; and all fines, taxes, penalties, and forfeitures due and owing to the state of Florida under the constitution of 1868 shall inure to the use of the state under this constitution.'

The effect of the general declaration of supersedure contained in the above section would, if standing alone, be to do away entirely with the constitution of 1868 as our organic law, upon the new one coming into operation on the 1st day of January, 1887; and its actual effect was and is to do away with the old charter of government except in so far as any other part of the new instrument may show a clear intent to continue any feature of the old. With such general abrogation would fall all rights which were dependent upon the old instrument, and not vested rights or matters of contract protected by the constitution of the United States.

There is nothing in the saving clause of the above section of the schedule that to our minds is applicable to an office. The second sentence of such saving clause was, as is evident from reading it, intended not to protect individuals against the state from any loss by such supersedure, but to protect the state against any loss.

A constitutional office is not, as against the action of representatives of the people, assembled for the purpose of revising the constitution upon which such office is based, either a right, an action, a claim, or a contract; and besides this, if it had been the intention of the framers of the instrument that any part of the above saving clause should apply to offices or officers, the other provisions in the schedule and elsewhere, as to existing officers, would have been unnecessary. Cooley, Const. Lim. 334.

A presentation of the special provisions as to officers at the time of the new instrument coming into operation is necessary.

Section 3 of the schedule article is that 'all persons holding any office or appointment at the ratification of this constitution shall continue in the exercise of the duties thereof according to their respective commissions or appointments, and until their successors are duly qualified, unless by this constitution otherwise provided.' Supplementing this provision, section 5 of the same article ordains that 'all vacancies occurring by limitation of terms before the general election in 1888 shall be filled as provided for by law under the constitution of 1868.'

The constitution of 1868, § 17, art. 5, as amended by article 2 of amendments of 1871, (see Acts 1871, pp. 52, 53,) provided that the governor should be assisted by a cabinet of administrative officers consisting of a secretary of state, attorney general, comptroller, treasurer, commissioner of lands and immigration, superintendent of public instruction, and adjutant general. They were appointed by the governor, and confirmed by the senate, and held their offices for the same time as the governor, and until the qualification of their successors. The governor's term was four years from his installation on the first Tuesday after the first Monday in January, or from such time till the installation of a successor on a similar day four years afterwards.

These cabinet officers were then, according to their commissions under the old constitution, to continue in the exercise of the duties of their respective offices during the term of the governor appointing them, and until their successors qualified. The present governor was elected in 1884, under the old constitution, and was installed on the first Tuesday after the first Monday in January, 1885; and under such constitution would have held till the installation of his successor on the similar Tuesday in January, A. D. 1889; and the cabinet officers appointed by him would have held, under the same instrument, for the remainder of his term, and until their respective successors should qualify.

It will be perceived by comparing section 20 of article 4 of the new constitution, and section 17 of article 5 of the old, as they are given above, that the adjutant general and the commissioner of lands and immigration are not mentioned in the former section as administrative officers in the new instrument.

Provision is, however, made for an adjutant general as a militia officer by section 16 of the above article (5) of the new instrument, and by a proviso to this section it is expressly declared that 't...