State v. Cunningham
| Decision Date | 25 May 1909 |
| Citation | 101 P. 962,39 Mont. 165 |
| Parties | STATE ex rel. SCHNEIDER v. CUNNINGHAM, Auditor. |
| Court | Montana Supreme Court |
Original application by A. C. Schneider for writ of mandamus to H. R Cunningham, State Auditor. Granted.
C. A Spaulding, for relator.
Albert J. Galen, Atty. Gen., for respondent.
Application for mandamus. The Legislature has never passed an act formally creating the office of stenographer of this court but from session to session has made appropriations in the general appropriation bill for the executive and judicial departments of the government of specific sums to be used for the employment of a competent person to perform the services necessary in this behalf. This amount has been increased from time to time as the changing circumstances seemed to require. The relator has served the court at its pleasure by appointment since February 10, 1896. At that time the provision for his compensation was $125 per month. At the session of the Legislature of 1901 the appropriation made was $150 per month, and at the last session the appropriation was increased to $200 per month. Payment of these sums has heretofore been made from month to month without question, the state board of examiners assuming that the appropriation thus made fixed the amounts to which the person performing the services has been entitled, and that the claims therefor were not claims against the state in the ordinary sense of that term. On March 24, 1909, the board assumed to authorize this court to employ a stenographer, and fixed the compensation to be paid him at $150 per month. The general appropriation bill having been approved on March 11, 1909, the relator on April 8th made demand upon the Auditor that he issue his warrant upon the Treasurer for the full amount of $200 as compensation for services performed during the month of March. This demand was refused because of the action of the board of examiners above referred to. Thereupon this proceeding was instituted to compel the Auditor to issue the warrant as demanded.
There is no controversy as to the facts. The question at issue is whether, after the Legislature has made what may, for present purposes, be deemed sufficient provision for proper and necessary aid to this court, the board of examiners has the authority to say that the relator, the appointee of the court, is not entitled to the compensation thus provided. It has assumed to act under section 20, art. 7, Const., and section 262, Rev. Codes. These provisions are as follows Const. art. 7. The result of this action, if it be held to be of binding force, is that this court in some of its important functions is subject to the control of the state board of examiners; for to say that it may grant the court permission to employ a stenographer is to say that in its discretion it may withhold permission. This means no more nor less than that, though the services of a stenographer are absolutely necessary to the proper accomplishment of the work of the court-a fact about which there can be no dispute-the board may in its discretion cut off all such services, and thus virtually disable the court, or at least seriously impede and hamper it, in the discharge of its duties. To say that it may fix the compensation to be paid for such services is also an assertion of the same power; for, if through mistake or lack of knowledge, or from any other cause, if any such exist, the board should fix the compensation at such a figure as to render it impossible to secure suitable service, this would be attended by the same consequences as if no compensation were allowed. The Constitution of this state divides the powers of government in three distinct departments-the legislative, executive, and judicial. Article 4, § 1. It then provides that "no person or collection of persons charged with the exercise of powers belonging to one of these departments shall exercise any powers properly belonging to either of the others"; the only exception being where some provision is found in the Constitution expressly providing otherwise. It is not our purpose to discuss this provision, nor to attempt to define with exactness the limitations imposed by it. It is within the knowledge of every intelligent man that its purpose is to constitute each department an exclusive trustee of the power vested in it, accountable to the people alone for its faithful exercise, so that each may act as a check upon the other, and thus may be prevented the tyranny and oppression which would be the inevitable result of a lodgment of all power in the hands of one body. It is incumbent upon each department to assert and exercise all its power whenever public necessity requires it to do so; otherwise, it is recreant to the trust reposed in it by the people. It is equally incumbent upon it to refrain from asserting a power that does not belong to it, for this is equally a violation of the people's confidence. Indeed, the distinction goes so far as to require each department to refrain from in any way impeding the exercise of the proper functions belonging to either of the other departments. This statement applies with special force to the judicial department, since it is the body upon which is cast the duty of deciding finally in particular cases whether there has been excess on the part of the executive or legislative departments calling for restraint or defect requiring compulsory action in order to supply it. Hence it has consistently recognized the fact that the powers of the Legislature are, within the limitations of the Constitution, plenary, by recognizing and enforcing its enactments in all cases, except when refusal has been clearly necessary, and there is no reasonable doubt but that the body has infringed some provision of the state or federal Constitution. State v. Camp Sing, 18 Mont. 128, 44 P. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; State v. Clancy, 30 Mont. 529, 77 P. 312; State ex rel. B. & M. Min. Co. v. District Court, 30 Mont. 193, 76 P. 10; State v. Cudahy Packing Co., 33 Mont. 179, 82 P. 833, 114 Am. St. Rep. 804; Jordan v. Andrus, 26 Mont. 37, ...
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