Terrell v. Middleton

• Decision Date: 28 March 1917
• Docket Number: (No. 10014.)
• Citation: 193 S.W. 139
• Parties: TERRELL, Comptroller, v. MIDDLETON.
• Court: Texas Supreme Court

193 S.W. 139

TERRELL, Comptroller, v. MIDDLETON.

(No. 10014.)

Supreme Court of Texas.

March 28, 1917.

On motion for rehearing. Motion overruled in 191 S. W. 1138.

See, also, 187 S. W. 367, for decision in Court of Civil Appeals.

Pat M. Neff, of Waco, and White, Cartledge & Wilcox, of Austin, for plaintiff in error.

PER CURIAM.

Rehearing denied.

HAWKINS, J. (concurring).

Speaking for myself only, I think that the motion for rehearing should be overruled, for the reasons stated in my concurring opinion in this case, filed February 20, 1917. 191 S. W. 1138. Having carefully considered said motion during the preparation of said opinion, it was not my purpose to write again in the case; but several features of the opinion of this date by Mr. Justice YANTIS, dissenting from the order of this court overruling said motion, impel me to say what follows: Because I did not consider section 48 of article 3 of our state Constitution applicable, I did not, in my former opinion, discuss that section; but, now that one member of this court has pointed to section 48, alone, as affording constitutional sanction for such appropriations and for such expenses, I feel called upon to say now, specifically, that in that section I can find nothing whatever which conflicts with any of my views or conclusions as set out in my said former opinion.

Section 48 relates, primarily, to the raising of state revenues, and only in a secondary and inferential way does it relate to the making of appropriations or to the incurring or payment of expenses of any kind. The making of such appropriations from the state treasury and the manner of incurring expenses upon the faith and credit of the state, and payment thereof, are treated, specifically and directly, by other sections of our Constitution, as pointed out by me in said former opinion, and to such other sections we must turn to find express restrictions upon the power of the Legislature to make such appropriations and upon the power to incur or pay such expenses. It is but a platitude to say that those express and specific and unambiguous restrictions, as far as they go, control all implications of section 48 as to such appropriations and such expenses. Consequently, the right of the Legislature to appropriate revenues "sufficient for the economical administration of the government" and for the payment of "all officers, agents, and employés of the state government, and all incidental expenses connected therewith" which right is recognized, by implication, in section 48, clearly is subordinate to, and, very plainly, is controlled by, such other more direct and more specific constitutional provisions, such, for instance, as section 5 of article 4, which carries a very obvious limitation upon not merely the "salary," but upon the entire "compensation," of the Governor, and section 44 of article 3, which certainly inhibits all expenditures not provided for "by pre-existing law," all as pointed out in my former opinion.

Moreover, the right of the Legislature to make appropriations to cover whatever properly and fairly may be considered and treated as "incidentals," as that word stands in section 48, which right, as hereinabove indicated, is declared only inferentially, by the section, is, in the present case, a purely abstract and merely academic matter, because none of the appropriations or expenses in controversy falls within such designated class, as being "incidental" to the Governor's official duties, and none of said expenses was authorized by any valid pre-existing law. That much is clear as matters of law. My views upon those features of this case are set out at length in said former opinion. I refer to them here solely for the purpose of developing, very briefly, my idea of the meaning and legal effect of section 48, which was not there discussed.

With the exception of his views as to section 48 of article 3, said dissenting opinion is, in substance, but little more than a reflex of said motion, and I will not attempt to answer it in detail; however, I trust that I may be pardoned for the following observations:

A sufficient reason for voting down in the constitutional convention the quoted resolution denying to the Governor "fees or perquisites or extra compensation" probably was that, already, the subject had been exhausted in section 5 of Article 4. Evidently said dissenting opinion was not then anticipated. The logic of my distinguished dissenting Associate leads, inevitably, to the conclusion that the Legislature is entirely free to provide by law for the Governor "fees" and "perquisites," if not "extra compensation," in the widest possible range and in unlimited amounts, and is also free to make like unrestricted appropriations for any and all other officers, agents, and employés of the state government. At that view of the legal effect of our Constitution its framers doubtless would now stand aghast. I do. Upon that point, as related to appropriations and expenses for the Governor, such as those here in controversy, a sidelight is found in section 22 of article 4 of our Constitution which provides, with reference to the Attorney General:

"He shall receive for his services an annual salary of two thousand dollars, and no more, besides such fees as may be prescribed by law: Provided, that the fees which he may receive shall not amount to more than two thousand dollars annually."

The contemporaneous omission from section 5 of article 4, prescribing the "compensation" of the Governor, of any provision for "fees" for the Chief Executive, is very significant, and indicates, unmistakably and sufficiently, an intent to prohibit the Legislature from granting or allowing to the Governor any such fees, just as the provision in section 5 of article 4 that he "shall have the use and occupation of the Governor's mansion, fixtures and furniture" indicates an intent that he shall not be allowed any other "perquisites" whatever.

I decline to be bound by the decision of the Supreme Court of Nebraska in State v. Sheldon, 78 Neb. 552, 111 N. W. 372, because I regard it as clearly erroneous, and the same remark applies to the decision of the Pennsylvania Supreme Court in Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825. In the matter of appropriations the Constitution of Pennsylvania is far less restrictive than ours.

The quoted provision of the Constitution of the United States (Const. art. 2, § 1) relative to the "compensation" of the President fixes no limit in the amount thereof; and if the stated appropriations thereunder have ever been tested in the courts, that fact has not been pointed out.

The actions of the district court, and of the Court of Civil Appeals, and of the Supreme Court, in this case, involve no judicial review of, or control, or attempt or purpose to control, executive or legislative discretion in any matter in which those departments are either authorized or permitted by our Constitution to act, to the extent of incurring and paying the expenses in controversy, and such judicial action does not impugn the motives of any member of either of those departments. Such judicial action is entirely consistent with the usual presumption that all members of those departments who have acted in the premises did so in good faith and upon the belief that said appropriations and expenses were not obnoxious to our Constitution, but valid in all respects, just as the dissenting member of this court now acts and believes. The issues presented in this case do not involve the motives of any one; they are questions of law, arising upon uncontroverted facts, tested by our state Constitution. In any event the issues should remain unclouded.

YANTIS, J. (dissenting).

This was an injunction suit instituted in the Fifty-Third district court of Travis county, Tex., by one W. C. Middleton, a citizen of Rains county, Tex., who sued as a citizen and taxpayer of the state to restrain H. B. Terrell, comptroller, from issuing warrants to pay certain items for which an appropriation had been made by the Legislature in favor of Governor O. B. Colquitt, to defray certain mansion expenses incurred by him while he was Governor of Texas.

The following terse statement of the case is copied from the argument of plaintiff in error:

"The Thirty-Third Legislature at its first called session appropriated for the Governor's mansion and grounds, among other things, the following: `Fuel, lights, water, ice, groceries and incidentals for the year ending August 31, 1914, $2,000.00, and for the year ending August 31, 1915, $2,000.00.' Acts First Called Session, Thirty-Third Legislature, page 113. The appropriation for the year 1915 having been exhausted, the Thirty-Fourth Legislature at its first regular session by section 3 of the act approved February 12, 1915, made an appropriation to cover certain deficiencies, among which was the following: `For Governor's mansion, water, fuel, lights, etc., $1,500.00.' Acts of the Regular Session, Thirty-Fourth Legislature, page 14. There is no contention that the deficiencies for which said deficiency appropriation was made were not authorized and created in the usual and ordinary way provided by law, but the contention is made that the appropriation bills above referred to, upon their faces, show that they were made for the purpose of increasing the salary of the Governor of this state, and are in contravention of section 5, article 4, of the Constitution of this state, and are therefore void. It is admitted that the deficiency appropriation of $1,500.00 was made for the purpose of paying the claims offered in evidence in this case by the defendant in error, and no contention is made that any of the claims involved in this suit were not covered by and intended to be paid out of the said $1,500.00 deficiency appropriation. The court below found and held that the claims of the city of Austin for water and light, the...