Riggs v. Brewer , 64 Ala. 282 ( 1879 )

BRICKELL, C. J.

The statute (Code of 1876, §586) fixed the salary of the marshal and librarian of the Supreme Court, at two thousand dollars annually. The salary being thus fixed by a general statute, permanent in its nature, no special appropriation by the General Assembly was necessary, to entitle him to demand payment of it, nor to authorize the auditor to draw a warrant on the treasurer for its payment. The statute, of itself, operated as an appropriation, and satisfied the constitutional requirement that money shall be drawn from the treasury only upon appropriations made by law. Nichols v. Comptroller, 4 St. & Port. 154; Reynolds v. Taylor, 43 Ala. 420. A subsequent statute, merely appropriating a less sum than that fixed as the salary by the general statute, would not operate a repeal by implication of the latter. — Reynolds v. Taylor, supra.

The act of February 13, 1879, entitled “An act to make appropriations for the fiscal year ending September 30,1879, and September 30, 1880 ” (Pamph. Acts,1878-9), contains this clause, among others : “ For compensation of the marshal of the Supreme Court and librarian, fifteen hundred dollars for each year — in all three thousand dollars.” The second section provides: “ That the appropriations hereinbefore made in this act be, and are hereby, continued in force until January, 1881.” The third section reads : “ That the appropriations made by this act shall not be construed to be in addition to appropriations for the same purposes, or any of them, made by separate acts heretofore or hereafter passed at this session of the General Assembly, or by laws heretofore passed and still in force.”

Statutes may be repealed by implication, or by express legislative enactment; and it is well settled, that a subsequent statute, which is clearly repugnant to, and inconsistent with a former one, operates a repeal of the latter. Or, if the later statute is manifestly and plainly intended to prescribe the only rule that shall govern in reference to the particular matter, it necessarily repeals the prior statute. — Sedg. Stat. & Cons. Law, 104. It is true, the doctrine of the repeal of statutes by implication is not favored ; and when two statutes are capable of a fair and just exposition, so 'that the two can stand, that exposition will be adopted, rather than a construction which will render the latter a repeal by implication of the former.— Wyman v. Campbell, 6 Fort. 219. But, if they are not capable of such exposition, without doing violence to the 'legislative intent — if there is a manifest repugnancy of the one to the other — the former statute must yield to the last expression of the legislative will. — Georqe v. Skeates, 19 Ala. 738.

Applying these established rules of construction to the case presented by the record, the relator has not the right he asserts. It seems too plain for argument, that the legislative intention was that, for the fiscal years of 1879-80, and until the first day of January, 1881, the salary of the marshal and librarian should be fifteen hundred dollars annually. All that is appropriated for that purpose, and for that period, is three thousand dollars — in all three thousand dollars, are the words employed. The fiscal year expires on the 30th day of September. The appropriation is continued of force until the first of January, 1881, as the General Assembly would not convene until the preceding second Tuesday in, November. Without this provision, or with an appropriation continuing only during the fiscal year, after its expiration, under the general statute, the marshal would have been entitled to a salary of two thousand dollars. To avoid this result, is the purpose of this provision. The last section of the act, declaring that the appropriations thereby made are not to be construed as in addition to former appropriations for the same purposes, points clearly to a legislative intention to exclude all other appropriations. The general statute, fixing the salary at two thousand dollars, can not stand consistently with the later statute, which was doubtless intended as a substitute during the time by its own terms it remains of force. The obvious difference between this case and that of Reynolds v. Taylor, supra, is that the statute then construed by the court did not contain such a clear and plain intention to take the place of the former statute, as is shown by the act of February 13, 1S79.

The judgment of the City Court must be affirmed.

MANNING, J.

There is a difference, it seems to me, between an act prescribing the salary of an office, and an act making appropriations for the payment of a salary, notwithstanding the former, according to decisions long since made and repeated in this State, operates as a standing appropriation act, also requiring payment of the salary. I see no reason why, in a case where the constitution does not prohibit the reduction of the salary involved, the legislature may not prevent the salary act from operating as an appropriation act, and, to that extent, modify it, without changing the salary to which the officer may be entitled. Thus, if in a general appropriation act a certain sum, less than the amount of the salary, and no more, is expressly appropriated for a particular office during the period covered by the act, this would operate to prevent, during that period, the payment of a larger sum, without taking away the just claim of the officer to have the deficiency made up by a future appropriation. This results from the different nature or office, in some respects, of the two acts.

Such a conclusion derives support from another provision of the act under consideration. The appropriations are made for the fiscal years, which end on the 30th of September in each year, and that day in the second year comes some time before the next biennial session of the legislature. To cover the hiatus, during which payments from the treasury would otherwise stop, the appropriations are continued by the act to the 1st of january afterwards, before which time the legislature will have re-assembled; and the appropriations are made for the payment of salaries at the same rates during that period, as prior to it. But, before the first of January, the salaries of many officers provided for in the act are to be reduced, by statutes that have been passed to change them; and if paid as much as the appropriation act provides, these officers would receive more than by those salary acts they would be entitled to. I think this was not the intention of the legislature, and that therefore we should hold that the salaries are not changed by the act appropriating more or less than is sufficient to pay such officers; but only that the appropriations are- deficient, or excessive; and that, if deficient in the case of any particular officer, the legislature will hereafter provide for the payment of the balance due to him.

I concur in the judgment refusing the writ of mandamus.