State v. Kenney

• Decision Date: 15 February 1892
• Citation: 29 P. 89,11 Mont. 553
• Parties: STATE ex rel. MADDOX v. KENNEY, State Auditor.
• Court: Montana Supreme Court

29 P. 89

11 Mont. 553

STATE ex rel. MADDOX v. KENNEY, State Auditor.

Supreme Court of Montana

February 15, 1892

Application for mandate by State ex rel. Fletcher Maddox, supreme court reporter, against E. A. Kenney, state auditor. Writ granted.

Thompson & Maddox, for relator.

H. J Haskell, Atty. Gen., for respondent.

DE WITT, J.

Relator is the reporter of the decisions of the supreme court appointed and acting under the provisions of chapter 114 Comp. St., as amended by the act of legislature of March 8 1889. The law is quoted fully in the case of the same title 10 Mont. 533, 26 P. 999. The respondent is the state auditor. Relator has completed volume 10 of the Supreme Court Reports and complied with the provisions of the law above referred to. There is due him from the state $2,274. There is no dispute about these facts. The respondent declines to draw his warrant in payment of this amount, on the ground that there is no appropriation for that purpose. But from the decision in State v. Kenney, 10 Mont. 485, 26 P. 197, it follows that the act of March, 1889, was an appropriation of the money required for the compensation of relator. So far, relator and respondent are agreed. But the act requiring the reporter to publish the Reports of the Supreme Court, and naming appropriation for his payment, was passed March 8, 1889, by the territorial legislature. The state and the state constitution came into life November 8, 1889. The constitution provides, (section 12, art. 12:) "No appropriation of public moneys shall be made for a longer term than two years" The respondent contends that whatever appropriation was made by virtue of the act of March 8, 1889, had no validity after March 8, 1891. The question at bar, then, is whether section 12, art. 12, Const., is prospective only, and refers to appropriation legislation to be passed by the state legislature after the adoption of the constitution, or whether it is retrospective as well, and operates upon appropriations made before the adoption of the constitution. The act of March 8, 1889, was a law of the territory when the state was admitted into the Union, and remained in force as a law of the state, unless it were inconsistent with the constitution. Schedule, art. 20, § 1. It is inconsistent with the constitution only in the view that section 12 was intended to operate retrospectively, and set aside the said act of the legislature. We understand that it is perfectly well settled that a statute will be construed to operate prospectively, and not retrospectively, unless the retrospective intention is clearly expressed. See a long list of cases in 3 Amer. & Eng. Enc. Law, p. 758, note 1. This is...