State v. Carter

• Decision Date: 29 May 1923
• Docket Number: 1162
• Citation: 215 P. 477,30 Wyo. 22
• Parties: STATE v. CARTER
• Court: Wyoming Supreme Court

215 P. 477

30 Wyo. 22

STATE v. CARTER

No. 1162

Supreme Court of Wyoming

May 29, 1923

Original proceedings in mandamus between State of Wyoming on the relation of Ida Geneva McPherren against Vincent Carter State Auditor to require the issuance of a warrant in payment of a claim for the death of her husband an under-sheriff killed in line of duty, for the payment of which claim an appropriation was made by the legislature. Heard on demurrer to the petition.

Demurrer overruled.

Diefenderfer and Wakeman for relator.

The action involves the validity of Chap. 110, Laws 1923, appropriating three thousand dollars for the relief of relator, whose husband was killed while in the performance of his duties as a public peace officer; payment is resisted by respondent, who questions the validity of the law as a donation of public money; the auditor has no power to question an appropriation act; his duty is to draw his warrant, (C. S. Sec. 124.) Appropriations may be made for the support of the poor (Art. XVI, Sec. 6.) The legislature is the sole judge of the necessity, (Art. XXI, Sec. 14, 12 C. J. 925; 30 Cyc. 1066; Dawgett v. Colgan (Cal.) 14, L. R. A. 474.) Under the rule that the court is limited to an inspection of the law itself, in its consideration of the case it is doubtful whether the Auditor could show an absence of poverty on the part of the beneficiary. (Stevenson v. Colgan, 91 Cal. 649, 14 L. R. A. 459; 25 Am. St. Rep. 230; Cooley's Const. Lim. 200, 12 C. J. 787.) The mother's pension and workmen's compensation acts are founded on the same principles, enabling the legislature under its police power to make appropriations for certain purposes. Relator's husband was killed in the performance of his duties as under-sheriff while enforcing laws of the state, thus creating a moral obligation on the part of the state to assist the family of the deceased. (25 R. C. L. 402; U. S. v. Realty Co., 163 U.S. 427; 41 L.Ed. 215; 36 Cyc. 894; People v. Bank, 231 N. J. 465; Woodall v. Darst, 71 W.Va. 350; Civ. F. v. Company, 61 P. 222; Cole v. State, 6 N.E. 277; Munro v. State, 119 N.E. 445.) The payment of a moral obligation by the state is not a gift nor a donation. It is true that California restricted such payments to legal liabilities in a decision by a divided court. (Bourn v. Hart, 93 Cal. 321, 28 P. 951.) but the decision stands alone. Every presumption as to the validity of the law must be indulged; it may be regarded as a special allowance for the support of a poor person, or as a payment of a moral obligation; under either view the wisdom or improvidence of its enactment cannot be questioned by the Auditor or by the courts.

David J. Howell, Atty. Gen. and L. C. Sampson, Deputy Atty. Gen. for respondent.

No money can be paid out of the State Treasury except upon appropriations legally made. It is not only the right, but the duty of the Auditor to inquire as to the validity of appropriations of state funds. Norman v. Board, 93 Ky. 537; State v. Snyder, (Wyo.) 212 P. 758; Woodall v. Darst, 71 W.Va. 359; Denmar v. Broderick, 111 Cal. 69; State v. Toppan, 29 Wis. 664; Van Horn v. State, 46 Neb. 62; State v. Kelsey, 44 N. J. Law. 1; Norton v. Shelby Co., 118 U.S. 425.) The law is special, and conflicts with Art. III, Sec. 27, McGarvey v. Swan, 17 Wyo. 138, it provides extra compensation to a public officer and conflicts with Art. III, Sec. 30; it is in effect a donation prohibited by Art. XVI, Sec. 6, State v. Comm., 8 Wyo. 132, the act was not for the relief of the poor. (In re Relief Bills 21 Colo. 62.) Deceased assumed the risks attending his employment and the state is under no legal liability to compensate for any loss sustained while in the discharge of his duty. (Bourn v. Hart, 93 Cal. 321.) An act granting a pension to police officers after twenty years service was construed as an increase of compensation after their term of employment by the Supreme Court of Missouri. (State v. Ziegenhoin, 144 Mo. 283.) The only case supporting Relator's claim is that of Monroe v. State, 119 N.E. 444, wherein a claim for injury by a lunatic was first allowed by the court of claims of that state.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action in mandamus, brought in this court against the State Auditor, and arises out of an act of the legislature, Chapter 110, Session Laws of 1923, providing as follows:

"That the sum of three thousand dollars or so much thereof as may be necessary, is hereby appropriated from any funds in the State Treasury not otherwise appropriated for the relief of Ida Geneva McPherren, for the loss of her husband, W. S. McPherren, who was killed in line of duty in 1921, as undersheriff by parties unknown."

The petition alleges among other things that the relator herein is, and for many years has been, a citizen and resident of the city of Sheridan, in this state; that on October 7, 1921, relator was the wife of William S. McPherren who on said date was the duly appointed and acting undersheriff of Sheridan County, Wyoming; that on said date, acting in the course of his duty and under the instructions and orders of his superior, said W. S. McPherren participated in a raid upon and attempted the arrest of alleged and supposed violators of the prohibitory liquor act, and in so doing was shot and killed by a bullet wound; that relator was left destitute and wholly dependent upon the charity and assistance of relatives and friends for the support of herself and two small children, and ever since the death of her husband has been and is now poor. That the legislature at its session in 1923 passed Chapter 110 above set forth for the relief of relator; that relator thereafter presented her claim and demanded of the respondent to issue to her his warrant upon the State Treasurer for the sum of $ 3000.00, which he has refused to do, and relator asks that a writ of mandamus issue to compel him to do so. Respondent filed a demurrer to the petition on the ground that the petition fails to state facts sufficient to constitute a cause of action. It is claimed that the legislative act above mentioned is unconstitutional upon three different grounds which we shall discuss separately.

1. It is claimed that to hold the act in question valid would be, in effect, to increase the salary of an officer in violation of our constitution. Section 30 of Article 3 of the constitution provides:

"No bill shall be passed giving any extra compensation to any public officer, servant or employe, agent or contractor, after services are rendered or contract made."

Section 32 of the same article provides:

"Except as otherwise provided in this constitution, no law shall extend the term of any public officer or increase or diminish his salary or emolument after his election or appointment."

In the case of Nichols v. State, 11 Tex. Civ. App. 327, 32 S.W. 452, the court construed a section of the Texas constitution similar to Section 30, supra, and the court said:

"That provision evidently means that when compensation is agreed upon or fixed for certain services, no extra compensation will be allowed for the same service. It was not intended to embrace claims that arose out of extra service. If extra service was rendered by virtue of proper authority, compensation could be made therefor."

The principle underlying this decision is, that no appropriation may be made as extra compensation after the performance of a duty to which a person was previously legally obligated, but unless such legal obligation in fact existed, extra compensation is not forbidden under the constitutional provision discussed in that case. Whatever legal duties are connected with an office must, no doubt, be performed for the emolument previously fixed. We need not define the precise limits of the field of legal duties. Probably they are somewhat uncertain and courts might differ in fixing them. But it is, we think, entirely clear that these limits do not extend so far as to require the officer to risk or give his life or incur permanent disablement. It is not reasonable to presume that the framers of the constitution had in mind that life or limb should be sacrificed for the comparatively small salaries usually fixed for officers. The duty to give life, to risk permanent disablement, does at times arise in the life of an officer, or employee of the state, as it arises, too, at times in the lives of private individuals. But when it does arise, it is something different from a mere legal duty. It rests upon a higher plane. It is bottomed on the sacrifice necessary at times to be made by individuals for the safety and happiness of human society, or a certain number thereof; and the need of this sacrifice is increased in the case of officers appointed to preserve peace and enforce the laws. It is a social and moral, not a legal duty, and compensation therefor is not, we think, to be considered as part of the salary of such officer, the increase of which is forbidden by the provisions of the constitution hereinbefore quoted. State v. Johnson, 170 Wis. 251, 256, 176 N.W. 224.

2. It is contended that the appropriation in question is a donation, and, therefore, contrary to the provisions of Section 6 of Article 16 of the Constitution, reading in part as follows:

"Neither the state nor any county * * * shall * * * make donations to or in aid of any individual * * * except for necessary support of the poor."

And contrary to Sec. 36 of Article 3, reading in part as follows:

"No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state."

We shall not enter upon a discussion of the question...