State v. Smith

• Citation: 187 Ala. 411,65 So. 942
• Decision Date: 19 May 1914
• Docket Number: 76
• Parties: STATE ex rel. TROY v. SMITH, State Auditor.
• Court: Supreme Court of Alabama

65 So. 942

187 Ala. 411

STATE ex rel. TROY v. SMITH, State Auditor.

No. 76

Supreme Court of Alabama

May 19, 1914

Rehearing Denied July 2, 1914

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Mandamus by the State, on relation of Daniel W. Troy, against C.B Smith, as State Auditor. From a judgment denying the writ relator appeals. Affirmed.

Daniel W. Troy and E.S. Watts, both of Montgomery, and R.B. Evins of Greensboro, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for appellee.

GARDNER J.

By this proceeding appellant seeks by mandamus to have appellee, as state auditor, issue to him his warrant for the sum of $125, alleged to be due by virtue of his employment as attorney on contract with the Governor.

The voucher presented to the state auditor was approved by the Governor; the latter noting therein that the same was approved "under section 561, Code of Alabama 1907, as amended April 11, 1911, and under section 2440, Code of Alabama." The constitutionality of the act of April 11, 1911, amendatory of section 561 of the Code, is herein attacked.

It is first insisted in brief of appellant that, without regard to the said act of April 11, 1911, he was entitled to compensation, and that therefore the warrant should issue. In support of this contention we are referred to sections 2440, 2443, and 552 of the Code, and section 120 of our Constitution, to demonstrate the right of the Governor to employ relator, and reference is also made to the case of Texas v. White, 7 Wall. 700, 19 L.Ed. 227, and to 14 Am. & Eng.Ency.Law, 1100, and other authorities, for the same purpose. With this insistence, however, we are not here concerned, unless it also appears that there has been provided an appropriation for the payment of this claim.

Section 72 of our Constitution provides that no money shall be paid out of the treasury except upon appropriation made by law and on warrant drawn by the proper officer. Nor is the state auditor authorized to draw his warrant for the payment of any money out of the treasury, except when directed by law. Code, § 599; Chisholm v. McGehee, 41 Ala. 192. Recognizing this as the rule, appellant urges, however, that by this contract with the Governor there is created an obligation of the state, and that appropriation is made therefor under provision of the general appropriation law (Acts 1911, p. 146), wherein is found the following sentence:

"For the payment of all obligations of the state, not herein specially enumerated, such annual sum as may be necessary is hereby appropriated."

Section 71 of the Constitution reads as follows:

"The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for the public schools. The salary of no officer or employé shall be increased in such bill, nor shall any appropriation be made therein for any officer or employé unless his employment and the amount of his salary have already been provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject."

We think it clear, therefore, without further comment, that the general appropriation law, read in the light of this constitutional provision, did not provide for the payment of such claims as that for which the issuance of warrant is here sought.

Nor are we of the opinion that relator has brought himself under the influence of section 2241 of the Code. This section is found in the law creating and defining the powers and duties of the state tax commission, and must be read in connection with the other sections of said law. The use of the words "such legal proceedings," in said section, clearly indicates a reference to those of the preceding section, which were to be had at the request or under the direction of said Tax Commission. By section 2222 of the Code the entire appropriation for the commission, together with every item of expense allowed therefor, is limited to $25,000 in any one year.

"It is practically a universal rule, in order to entitle a party to the writ of mandamus, he must show that he has a clear legal right to demand the performance of a specific duty." Minchener v. Carroll Treas'r, 135 Ala. 409, 33 So. 168.

In any event, therefore, if appellant is sought to be justified under section 2241 of the Code, in view of the limitations of section 2222, it was incumbent upon him to show no violation of the provision of the latter section, and thus to show a clear, legal right. No such attempt is made in the petition.

We are therefore brought to a consideration of the act of April 11, 1911, amendatory of section 561 of the Code, which, as seems to be conceded, if a valid enactment, entitles appellant to the relief he seeks.

Section 561 of the Code, as it stood at the time of the amendment, provided that "the governor may employ one stenographer or messenger to the chief executive office," and fixed the compensation therefor. For convenience we here copy the section, as follows:

"The Governor may employ one stenographer or messenger to the chief executive office, whose compensation is nine hundred dollars per annum, payable monthly, on the auditor's warrant, drawn upon the Governor's certificate." Code 1907, vol. 1, p. 392.

By the act of April 11, 1911 (Acts 1911, p. 369), this section is amended, which said amendment we also set out in full, as follows:

"Section 1. That section five hundred and sixty-one (561) of the Code of Alabama be amended so as to read as follows: 561. (1964) May employ file clerk and stenographer, messenger for executive office, and counsel.--The governor may employ a file clerk and stenographer to the chief executive office at a salary of fifteen hundred dollars per annum; a messenger to the chief executive office whenever and for such period as he may deem necessary, to be paid a salary for the time of his employment at the rate of nine hundred dollars per annum; and, whenever in his judgment it is expedient or necessary, an attorney or attorneys, to advise him in his official capacity or to institute, conduct or appear in any civil or criminal cause in which the state is interested in any court, and to agree with such counsel on his compensation. The salaries of the file clerk and stenographer, and messenger shall be paid as the salaries of other state officers are paid; the compensation of such counsel shall be paid in the amount and at the time agreed on, out of any general funds of the state, not otherwise appropriated on the auditor's warrant, drawn on the governor's certificate."

It is thus seen that by the amendment the Governor is empowered to employ a file clerk and stenographer and also an attorney or attorneys to advise him in his official capacity, as well as to institute, conduct, or appear in any civil or criminal case in which the state is interested, in any court, in addition to the one stenographer or messenger authorized by the original section.

The objection urged to this amendatory act, by counsel for appellee, is that it is violative of that provision of section 45 of the Constitution, which is as follows:

"Each law shall contain but one subject which shall be clearly expressed in its title."

That a section of the Code may be amended by reference to the section number only is well settled and clear, and not controverted by counsel. Montgomery v. State, 107 Ala. 372, 18 So. 157; Ensley v. Cohn, 149 Ala. 316, 42 So. 827; Comer v. Age-Herald, 151 Ala. 613, 44 So. 673, 13 L.R.A. (N.S.) 525.

Appellant, however, argues in brief one step further, and insists that such act, which in its title purports to amend a section of the Code, is sufficient for all purposes, and that the matter of the act need not be germane to the subject of the section so amended. In support of this we are cited to no authority. The argument, in our opinion, loses sight of the reasoning of the courts in holding such title sufficient.

As said in the case of Ex parte Cowert, 92 Ala. 99, 9 So. 226:

"The theory upon which this scant expression of the subject of the amendment is held to meet the constitutional requirements is that members of the General Assembly are supposed to know the provisions of the section to be amended, and that the subject to which those provisions relate is the subject also of the amendatory act."

We therefore think it clear that the matter of the amendatory act must be germane to, suggested by, and supplemental to the subject of the section sought to be amended. Ex parte Cowert, supra, 92 Ala. 100, 9 So. 226.

Originally, the title of an act was held to be no part of it, but, under our Constitution, "the title is regarded as an essential part of the law, having a specific object and office--to control the subject of the enactment, and to restrict its provisions and details to such matters as are pertinent and germane to the single object expressed in the title." Harper v. State, 109 Ala. 28, 19 So. 857.

This provision of section 45 of the Constitution is threadbare in discussion. Its objects are well expressed by Chief Justice Brickell in Lindsay v. U.S. Savings & Loan Association, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783, and the following quotation from the opinion in that case will suffice for this occasion:

"The purposes of the constitutional requirement must be borne steadily in mind, when it becomes necessary to determine whether there has been legislative observance of it. The exposition of these purposes by Judge Cooley is accepted, we believe, in all the states in which a like limitation prevails. "They are: 'First, to prevent "hodgepodge" or "logrolling" legislation; second, to prevent surprise or

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