State v. Steele

• Decision Date: 02 June 1882
• Docket Number: Case No. 4522.
• Citation: State v. Steele, 57 Tex. 200 (Tex. 1882)
• Parties: THE STATE OF TEXAS v. WILLIAM STEELE.
• Court: Texas Supreme Court

57 Tex. 200

THE STATE OF TEXAS

v.WILLIAM STEELE.

Case No. 4522.

Supreme Court of Texas.

Jun. 2, 1882.

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

Suit was brought under authority of “An act to ascertain what, if any, unpaid balance of salary is due Gustave Cook, as judge of the criminal district court of Galveston and Harris counties, and William Steele, late adjutant-general of the state of Texas, and making an appropriation therefor,” approved April 4, A. D. 1881, and taking effect ninety days after adjournment, by William Steele, for an alleged balance of salary due him as adjutant-general, from the 1st day of September, A. D. 1876, up to, and including, the 28th day of January, 1879; he having received pay for that period of two years, four months and twenty-eight days, at the rate of $2,500 per annum, which, on the contrary, he claims should have been paid to him at the rate of $3,000 per annum.

Defendant pleaded in abatement:

1. That the court had no jurisdiction; that as the act of April 4, 1881, had not provided for service to be had on any person, that the service had therein should be vacated.

2. That plaintiff's pleadings were insufficient in law, and generally and specially denied the allegations contained in plaintiff's petition.

To this answer plaintiff demurred.

On the 21st day of November, 1881, the cause was tried by the court, and defendant's plea in abatement and demurrer to plaintiff's petition were overruled, the plaintiff's demurrer to defendant's answer was sustained, and judgment rendered for plaintiff against the state of Texas, defendant, for the sum of $1,201.67.

From all the rulings of the court and its judgment plaintiff appealed.

J. H. McLeary, Attorney General, for the state.

I. Only such service as is authorized by law, and on parties designated by law to receive such service, is sufficient to support a judgment taken by default. R. S., arts. 1215, 1282.

II. Had the parties cited failed to answer, no judgment could have been taken against the state of Texas by default. Thompson v. Bishop, 24 Tex., 303.

III. A statute merely prescribing a salary for an official position, not especially defined by any constitutional provision, is subject to revision and repeal by the legislature. Kilgore v. Mayer, 85 Pa., 401.

IV. The petition fails to deny the right of the legislature to diminish the salary of the incumbent of an official position during his term of office. State v. Gales, 77 N. C., 283.

V. Defendant's answer states substantially a good ground of defense. Cunningham v. Wheatley, 21 Tex., 184;Boynton v. Tidwell, 19 Tex., 121;Gaines v. Salmon, 16 Tex., 312;Holleman v. Rogers, 6 Tex., 95.

VI. To reach any supposed defects in the defendant's answer they should have been specially pointed out. State v. Williams, 8 Tex., 255;Boynton v. Tidwell, 19 Tex., 118.

VII. The act of the fifteenth legislature, set out in chapter 147 in proceedings of its session, was constitutional. Giddings v. San Antonio, 47 Tex., 550.

VIII. The legislature has the power to reduce the salary of any of the state officers, if such reduction was not inhibited by the constitution. Kilgore v. Mayer, 85 Pa., 451; State v. Von Baumbach, 12 Wis., 310;People v. Morrell, 21 Wend., 563-576;State v. Douglas, 26 Wis., 428, and 7 Am. Rep. 87-90, note on page 90.

IX. The legislature, by its act approved February 26, 1879, reduced the salary of plaintiff; that the reduced rate was paid him and received by him. People v. Board of Police, 19 N. Y., 653.

X. The appropriating of a sum of money by the legislature to pay the salary of a state's officer, when there is no special constitutional provision inhibiting such salary from being changed, designates the amount of the salary annexed to such office, and repeals any previous provision. Acts 1876, p. 250; U. S. v. Ashfield, 91 U. S., 317;Const., sec. 44, art. 3.

XI. Under the constitution, the act of the fifteenth legislature, which became law on the 21st of August, 1876, being chapter 147 thereof, determined the amount of salary to which the adjutant-general was entitled. Const., sec. 44, art. 3.

XII. An appropriation being necessary before any moneys can be drawn out of the state treasury, the act fixing the salary must be controlled by the act making the appropriation for the payment thereof. 2 Pasch. Dig. of Laws, art. 7143; State v. Weston, 6 Neb., 16; ch. 149, Acts 1876.

XIII. An appropriation bill controls and repeals a former act of the same nature in conflict with it. United States v. Ashfield, 91 U. S., 317;Dash v. Van Kleeck, 7 Johns., 497;Columbus Manufacturing Co. v. Vanderpool, 4 Cow., 556;Livingston v. Harris, 11 Wend., 329.

XIV. The acceptance of an office, performance of its duties, and receiving the salary appropriated by later act than that creating the office, estops such officer from demanding any further or higher pay for the services performed. People v. Board of Police of New York, 19 N. Y., 653.

XV. Any decisive acts of the party, done with knowledge of his rights and of the fact, determines his election and works an estoppel. Bigelow on Estoppel, pp. 503, 511; authorities in note 2, p. 511.

Carlton & Morris, for appellee??

GOULD, CHIEF JUSTICE.

At the time the present constitution took effect William Steele was adjutant-general of the state, the law theretofore in force prescribing of that officer that “His salary shall be three thousand dollars per annum.” Pasch. Dig., art. 7143. He continued to hold that office up to January 28, 1879, but after August, 1876, only $2,500 per annum was appropriated by the acts making appropriations for the support of the state government, for the salary of the adjutant-general, and Gen. Steele, of course, received only the amount so appropriated. This suit was brought under authority of an act approved April 4, 1881, authorizing the institution of suit against the state to ascertain “what amount, if any, is due” him as adjutant-general between September 1, 1876, and January 28, 1879. The argument in support of the claim that Gen. Steele was entitled to $3,000 per annum during that period is, that the law fixing the salary at $3,000 continued in force under the present constitution, which says: “All laws and parts of laws now in force in the state of Texas, which are not repugnant to the constitution of the United States or to this constitution, shall continue and remain in full force as the laws of this state, until they expire by their own limitation, or shall be amended or repealed by the legislature.” Const., art. 16, sec. 48.

It is denied that the law fixing the salary at $3,000 was repealed by the acts making appropriations for the support of the state government, for it is said there is no express repeal, nor is there any manifest repugnancy in those laws. Reasons might exist for appropriating less than was known to be due, or the deficiency of the appropriation might be the result of mistake. It is not the policy of the law to leave the salaries of state officials to...