State v. Cook

• Citation: 57 Tex. 205
• Decision Date: 02 June 1882
• Docket Number: Case No. 4523.
• Parties: THE STATE OF TEXAS v. GUSTAVE COOK.
• Court: Supreme Court of Texas

57 Tex. 205

THE STATE OF TEXAS

v.GUSTAVE COOK.

Case No. 4523.

Supreme Court of Texas.

Jun. 2, 1882.

APPEAL from Travis. Tried below before the Hon. A. S. Walker.

The brief for appellee and the opinion of the court contain a full statement of the case.

J. H. McLeary, Attorney General, for appellant, cited Thompson v. Bishop, 24 Tex., 303;Kilgore v. Magee, 85 Penn., 401;State v. Gales, 77 N. C., 283;State v. Von Baumbach, 12 Wis., 310;People v. Morrell, 21 Wend., 563;State v. Douglas, 26 Wis., 428; People v. Board of Police, 19 N. Y. (S. C.), 653; U. S. v. Ashfield, 1 Otto, 317; State v. Weston, 6 Neb., 16; Dash v. Van Kleeck, 7 Johns., 497;Columbus Mfg. Co. v. Vanderpool, 4 Cow., 556;Livingston v. Harris, 11 Wend., 329;Const., art. 3, sec. 44; art. 4, sec. 23; art. 5, secs. 2, 5 and 7; R. S., 1215, 1282, 1487; Gen. Laws 1870, ch. 26.

Hancock & West, for appellee.

I. The office of judge of the criminal district court of Galveston and Harris counties, held by appellee, being an office created by or recognized in the constitution of the state, and the salary fixed in accordance with law, the legislature had no power during the continuance of appellee's term of office to increase or diminish his salary, and even if they had that power, the mere fact that on more than one occasion they failed to appropriate a sufficient amount to pay appellee the whole of his salary for each year as fixed by law, would not be considered as an exercise of that power; nor does the fact that appellee drew and receipted for so much of his salary as there was an appropriation for, estop him from claiming the balance that may be due him under the law fixing his salary, especially when the legislature has by its own act authorized him to sue the state for such unpaid balance as may be due him, if any. Appellee was appointed to the office in question on the 3d of August, 1874, for the term of four years from date, that being at that date the period for which said office was held. Afterwards, by the operation of the constitution of 1876, the term of office was changed from four to two years, and appellee was reappointed on 3d of August, 1878, for a period of two years-- that is, to August 3, 1880. The salary was fixed by law in 1870 at $3,500 per annum, and at that rate appellee was paid from 1874 up to the 31st of December, 1878, regular appropriations being made for that purpose. After the last named date, that is, from the 31st day of December to ??e 1st day of September, 1880, the state authorities failed to pay him at that rate, but paid him at a different rate. He was reappointed on the 1st of September, 1880, and the salary having been on the 1st of September, 1879, fixed at $2,500, since his last appointment in September, 1880, he has been drawing pay at that rate. The amount now claimed is the difference between what the state paid appellee from the 31st December, 1878, to 1st September, 1880, and what he contends he was entitled to under the law; that amount, it being agreed, is the sum for which the judgment is rendered, $1,583.33, if for any. Const. of 1870, art. 5, sec. 1, p. 3, and sec. 13; Pasch. Dig., vol. 2, p. 1247, note 1289, and arts. 6135-6140, note 1292; Const. of 1876, art. 5, secs. 1 and 7, and also art. 16, sec. 30; Gen. Laws of 1876, act of 21st of August, 1876, p. 251; R. S., pp. 642, 643, arts. 4471, 4481; Laws of 1879, pp. 19, 158; Act of April 4, 1881; Gen. Laws of 17th Leg., p. 98.

II. There is nothing in the record showing how or when the service was made, or showing that it was made at all, and as the state appeared by the attorney general, it must be presumed that if there was any irregularity in the service it was waived; if, however, it be the fact that the chief executive of the state was served, then that was good service on the state; if not, how is the state to be served when she authorizes suit to be brought against her? The original petition prayed for a citation to issue against the state of Texas, and to be served on O. M. Roberts, governor of the state. The state appeared by the attorney general, and moved to quash the service, and pleaded to the jurisdiction. The motion to quash was refused, but the citation is not in the record, nor was any bill of exceptions taken, by which the facts before the court might be known. Phillips' Practice (U. S. Sup. Ct.), revised of 1878, ch. 2, pp. 19, 20; Grayson v. State, 3 Dall., 320;Chisholm v. Georgia, 2 Dall., 419; argument of Mr. Randolph, the attorney general.

GOULD, CHIEF JUSTICE.

Under authority of an act authorizing him to institute suit against the state, to ascertain “what amount, if any, is due” him “by the state, for salary as judge of the criminal district court of Galveston and Harris counties, between the 1st day of January, 1879, and the 1st day of September, 1880,” this suit was brought by Gustave Cook, claiming that, during that period, he was entitled to a salary at the rate of $3,500 per annum. It appears that up to January, 1879, the appropriation acts provided for the payment of the salary of that official at the rate claimed by him. For the months of January and February, 1879, the appropriation was $500--or at the rate of $3,000 per annum. Acts of 1879, p. 19. Thereafter the appropriation was only at the rate of $2,500 per annum. Having received only the amount appropriated, this suit was brought to recover the balance claimed to be due. In accordance with the ruling just made in the case of The State v. Steele, if the salary of the judge of the criminal district court of Galveston and Harris counties was fixed by law at the rate of $3,500 per annum, the right of that judge to his full salary was not defeated by the fact that the legislature made appropriations insufficient in amount...