Reynolds v. Taylor , 43 Ala. 420 ( 1869 )

PECK, C. J.

The record in this case shows that the appellee, on the 8th day of January, 1867, was duly and legally appointed marshal of the supreme court of Alabama, and was, by virtue of said appointment, ex officio librarian of the State and supreme court libraries.

The record further shows that he was a person competent to be so appointed, and to hold and enjoy said office; that he qualified, took the oath, and gave the bond required by law, and on the said 8th day of January, 1867, entered upon the discharge of the duties of his said office, and from that day, and until, and up to the 21st day of July, 1868, and including that day, performed the duties of said office.

The record also shows that during that period, he had been paid by the treasurer of the State, on the warrants of the late comptroller, and the present auditor of the State, the said E. M. Eeynolds, on account of his annual salary, the sum of fifteen hundred and thirty-four dollars and eighty-nine cents; that these warrants were drawn as aforesaid, estimating his salary at the sum of one thousand dollars annually, and no more; that appellee, when said warrants were drawn, claimed that he was legally entitled to a salary, as such marshal and librarian, of two thousand dollars annually, instead of one thousand dollars, and that he had requested said comptroller and auditor to draw their warrants accordingly, but they had refused to do so; that he had received the warrants so drawn, as aforesaid, under protest, and without in any manner waiving his right to be paid the entire amount of the salary, claimed by him as aforesaid.

The record also further shows that, estimating the salary of said appellee at the sum of two, instead of one, thousand dollars annually, he was entitled to receive, in addition to the amount already received, <fec., as aforesaid, the sum of fifteen hundred and thirty-four dollars and eighty-nine cents; and that, to-wit, in the latter part of January, of this present year, 1869, said appellee had demanded of appellant, the said R. M. Reynolds, auditor, &c., as aforesaid, to audit and adjust his account for salary or compensation, due to him as marshal and librarian, &c., as aforesaid, and also demanded of him a warrant on the treasurer* of the State, for the payment of the same. The auditor refused to do this, and thereupon appellee filed his petition in the circuit court of Montgomery county, in which the foregoing facts were stated, with others not necessary here to be set forth, and prayed that the writ of mandamus, or other appropriate writ, be issued, or the proper order be made, to compel the said auditor, said R. M. Reynolds, to audit and adjust petitioner’s account for salary or compensation, as marshal, &c., as aforesaid, and to issue his warrant on the treasurer of the State of Alabama, in favor of petitioner, for the amount of compensation or salary to which he was entitled by the laws of the State. Upon the facts therein alleged and set forth, he also prayed for every other order or writ, or process, and for all other relief to which he was entitled, &e.

Upon the filing of said petition, the said court ordered that a rule issue to the said R. M. Reynolds, auditor, &a., as aforesaid, citing and requiring him to appear before the said court on the fourth day of February, 1869, to show cause why a mandamus should not be issued, as prayed for in said petition. This rule was duly served on said auditor, and returned to said court.

To this rule, the said auditor, by the attorney-general, appeared and filed his demurrer. No grounds for the said demurrer appear in the transcript, though it is stated, they were filed and made a part of the record. The transcript states that it was agreed, if the demurrer was overruled, final judgment was to be rendered against said auditor by the court, reserving to him, in that event, the right to appeal to the supreme court. The petitioner joined in this demurrer.

The transcript sets out an answer of the said auditor, in the words following, to-wit: “ For answer to the foregoing petition, the auditor, E. M. Eeynolds, denies the legality and validity of the claim set up by the petition. There is no law, in his opinion, authorizing payment of the same, and the precedents established in this office do not warrant the payment thereof.

“The fact of the appointment of the petitioner, by Judges Walker, Byrd and Judge, as marshal and librarian, and his services as such, and the former payments to him, and the refusal of the auditor to issue a warrant for the claims, are admitted to be true, as they are alleged in the petition.

(Signed,) E. M. Eevnolds.”

No notice seems to have been taken of this answer in the further proceedings of this case.

The demurrer to said petition was overruled, and a peremptory mandamus ordered to be, and was, issued, commanding the said auditor, said E. M. Eeynolds, to draw his warrant on the treasurer in favor of said petitioner, said appellee, for whatever sum remained due to him, as marshal and librarian, as alleged in his petition, from the said 8th day of January, 1867, to and including the 21st day of July, 1868, computing petitioner’s salary for that period, at the rate of two thousand dollars per annum; and it was also ordered that said petitioner recover of said E. M. Eeynolds the costs in that behalf expended, &c.

On this final order and judgment of the court, the said auditor has appealed to this court. He excepted to the judgment of the court, and a bill of exceptions was signed and sealed at his instance, merely setting out the matters before admitted, &c.

The errors assigned are — 1st. The court erred in overruling the demurrer to the petition.

2d. The court erred in rendering judgment, and directing a peremptory mandamus to issue against the auditor.

Section 2656 of the Eevised Code says : “ No demurrer in pleading can be allowed, but to matter of substance, which the party demurring specifies, and no objection can be taken or allowed which is not distinctly stated in the demurrer.”

The error assigned upon the overruling of the demurrer cannot properly be considered, because no objection, for either matter of substance, or form even, is specified ; and no objection can be allowed which is not stated in the demurrer. We have, notwithstanding, examined the petition carefully, and are unable to discover any substantial objection to it. If any such objection appeared, we would give the appellant the benefit of it, considering the circumstances of the case, and the character of the proceedings.

The attorney-general, for the appellant, insists, that the appellee is not entitled to the relief he seeks, unless he has complied with all the requisitions of the law, necessary to have his claim audited, and a warrant on the treasurer for the payment of the same, and he refers to the 7th part of section 414 of the Revised Code, and also to section 4436. The 7th part of section 414 makes it the duty of the comptroller (the auditor now) to examine and adjust the claims of all persons against the State, where provision for payment thereof has been made by law. This manifestly refers to special claims against the State, and does not refer to ’the salaries of public officers, where not only the amount, but the time of payment is determined by the general law; and section 4436 refers to the allowance of special claims against the State, by the legislature, and the evidence to be required in such cases.

2. He insists that the application of appellee should be denied, because it is not shown that an appropriation had been made to pay his salary, as marshal, &c., at the sum claimed by him ; but that appropriations had been made td pay him one thousand dollars salary per annum only, and not two thousand-dollars as claimed. We know that the general appropriation acts of 1866 and 1867, appropriated one thousand dollars only, for the payment of the salary of the marshal of the supreme court. This objection is sufficiently answered, by a decision of this court, made more than thirty years ago. In the case of Nichols v. The Comptroller, 4 Stewart & Porter, 154, it is decided, that in order to authorize the comptroller to issue his warrant on the treasury, for the amount of a salary, it is not necessary that there should be a special annual appropriation by act of the legislature, where there is a general law fixing the amount of the salary, and prescribing its payment at particular periods.”

We are not aware that this decision has been doubted from that day to the present time. It is, therefore, the law of this court. That case also decides that a mandamus lies against an officer of the executive department, to compel the performance of his duty. It also decides that a mandamus will go to the comptroller of public accounts, to compel the issuance of a warrant on the treasury, where the right to such warrant is clear, and no other remedy is provided. Is the right of the appellee in this case clear ? Was he, as marshal of this court, and librarian ex officio, of the libraries of the State, and of this court, entitled to a salary of two thousand dollars annually, instead of one ? If so, then it was, and is, the duty of the comptroller and auditor to issue warrants on the treasurer accordingly.

Section 670 of the Eevised Code says, a marshal of thé supreme court must be appointed by the judges of said court, and section 675 declares “ the annual salary of such marshal is two thousand dollars;” and, further, section 210 says : “ The salaries of all officers are payable .on the last day of each month;” that is, the salaries of all public officers are payable monthly.

But it is insisted, on behalf of the appellant, that “the government under which, and by which, the salary of two thousand dollars was fixed, was not- even a de-facto government, and its laws, therefore, have no effect;” that is, that section 675 of the Eevised Code was passed by the legislature of the rebel government, in the year 1864, during the flagraney of the late rebellion, and, therefore, has no legal validity, and the case of Chisholm, Comptroller, &c., v. Augustus A. Coleman, is referred to. That decision was made after mature consideration; and we are entirely satisfied with it, but we do not see what influence it can have on this case. In that case, we held, “ That the so-called Confederate government, and the rebel government, in the State of Alabama, were neither of them, in the legal proper sense, de-facto governments, during the late rebellion.”. We also held said governments to be rebel governments— governments in hostility to the government of the United States — consequently, the legislature in this State, during the existence of the rebellion, was an unlawful legislature, and its acts unlawful acts, and must so be regarded by the courts of the lawful State government, since its restoration and reconstruction. Yet, it does not follow, that the legislature of this State, after its restoration, may not adopt and give validity to such of the legislative acts of said unlawful government, as are not in conflict with the constitution and laws of the United States, or the constitution of this State, and are not inconsistent with the changed and altered condition of our institutions.

Such we understand to be the view taken of this question by the supreme court of the United States, in the case of the State of Texas v. Chiles. In that case, Chief-Justice Chase, in speaking of an act of the legislature of the State of Texas, during the rebellion, repealing an act of said State, passed before the rebellion, prescribing the manner in which certain government bonds belonging to said State, might be disposed of, says: “ The legislature of Texas, at the time of the repeal, constituted one of the departments of a State governent, established in hostility to the constitution of the United States. It can not be regarded, therefore, in the courts of the United States, as a lawful legislature, or, its acts as lawful acts. And, yet, it is a historical fact, that the government of Texas, then in full control of the State, was its only actual government; and certainly, if Texas had been a separate State, and not one of the United States, the new government having displaced the regular authority, and having established itself in the customary seats of power, in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de-facto government, and its acts during the period of its existence, as such, would be effectual, and almost in all respects valid; and, to some extent, this is true of the actual government of Texas, though unlawful and revolutionary as to the United States.”

The chief-justice proceeds further to say, “ It is not necessary to attempt any exact definitions, within which the act of such a State government must be treated as valid or invalid. It may be said, perhaps, with sufficient accuracy, that acts necessary to peace and good order among citizens — such, for example, as acts, sanctioning and protecting marriage, and the domestic relations, governing the course of descent, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts -which would be valid, if emanating- from a lawful government, must be regarded in general, as valid, when proceeding from the actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defraud the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.”

This we think a very wise and just view of this embarrassing question; and this is substantially the view that has been taken of it by the State of Alabama. The legislature, the political department of the State, has adopted and given validity to such of the acts of the legislature of the rebel government, as are not in conflict with either the constitution of the United States, or of this State, or inconsistent with the changed and altered condition of the country. This has been done by embracing them in the Eevised Code of the State, and, then, by direct enactment, after the adoption of the said Code. By an act entitled “An act to continue in force certain laws,” approved July the 29th, 1868, it is enacted, “ That all laws and parts of laws of the Eevised Code of Alabama, except such as conflict with the constitution of the United States, or the constitution of this State, be and the same are hereby declared to be in full force and effect, until repealed by this or some succeeding legislature.”

The laws embraced in the Eevised Code, consist of laws that were in the old Code, laws passed during the rebellion,- and laws passed since the rebellion and before the said Code was finally completed and adopted, and all alike, with the exception of those in conflict with the constitution and laws of the United States, or the constitution of this State, are declared to be in full force and effect.

This adoption being the act of the political department of the government, the legislature, the courts, we hold, are bound to conform to it.

If these views are correct, as we believe them to be, it follows, that the salary of the marshal of this court, during tbe period the appellee held the office, was two thousand dollar’s, for, so it is. expressly declared by said section 675 of the Revised Code; and it makes no difference that it was embraced in an act passed by tbe legislature of the rebel government; being embraced in tbe said Code, and adopted, as we have shown, by the present State government, it is as valid as any other section in tbe Code.

Therefore, tbe appellee having received only half of the salary to which he was entitled, and the auditor having refused, although requested, to draw his warrant for the payment of the remainder, the court below decided right in directing a peremptory mandamus to issue.

Let tbe judgment of tbe court below be affirmed, at tbe appellant’s costs.