Collens v. Dubuclet ( 1880 )

Manning, C. J.

The plaintiff’s suit was dismissed on an exception of no cause of action. The petition begins by setting forth that the plaintiff is the holder and owner of State warrants for nine thou- and three hundred dollars for his salary as judge of the" Seventh Court of this city for the years 1874, 1875, and 1876, drawn on the Treasurer according to law, and then proceeds with his allegations in this wise: —

‘! That the payment of said salary, for which said warrants are drawn is appropriated and required by the Constitution of the State, which is the supreme law of the land, and cannot be directly or indirectly defeated by legislation or the official acts of officers of the State.

“ That by the acts of the Legislature, for the years aforesaid, besides making appropriations to pay said salary, and other appropriations expressly required by specific provisions of the Constitution, various other appropriations were made for contingent purposes in excess of the revenue of the State, whether estimated by assessments, or on actual income for each of the years aforesaid, and thereby, there has not been, and it is impossible that there shall ever be sufficient funds or income of the State, for the years aforesaid, to pay all the warrants drawn by virtue of said appropriations upon the general fund.

“ That all the appropriations made payable out of the general revenues of said years, except those expressly required by the Constitution, are null and void, for being in excess of revenue.

‘ ‘ That, under these circumstances, and notwithstanding such yearly insolvency and nullity of appropriations, Antoine Dubuclet, State Treasurer, asserts and exercises the right or discretion of perfrering and paying only such of said warrants as it may be most convenient to pay, or which may happen to be presented at the moment funds are received by him, or such of said warrants which, in his individual opinion, he may consider entitled to preference, so that he may determine not to pay petitioner’s warrants, and .may wholly exhaust the contemplated, the actual and the future revenue of the State in paying warrants which are constitutionally, null and void, as aforesaid, or even lawful warrants held by others than petitioner, or even any outstanding warrants of the same character as those of petitioner, thus wholly defeat the intent and letter of the Constitution and the just rights of this petitioner.

“That said Dubuclet has, heretofore, acted on the said rules, although it is the duty of said Dubuclet, when the income of the State is insufficient for all; to give precedence to the appropriations made or required by the Constitution.

“That said Dubuelet, notwithstanding said yearly insolvency, does not even apportion, and ref uses even to apportion, the income of the general fund to the several and distinct appropriations made by law payable out of that fund, but continues to refuse any payment whatsoever to some, but to pay others in full.

“That nearly the whole of the possible revenue of the State, for the years 1874, 1875, and 1876, have been paid out in this manner, and the future income for said years respectively will be wholly insufficient to pay outstanding warants in full.

‘ ‘ That besides the deficit caused by excess of appropriations, there is a further deficit from defalcations and insolvency, and disappearance of those liable for'taxes on movables, licenses, capital, and the like.

‘ ‘ That, notwithstanding the presentation of said warrants to said State Treasurer, and petitioner’s remonstrance, said State Treasurer is applying to petitioner said illegal and wrongful method of distribution and paying out the revenues of the State to the great injury and damage of petitioner.”

For these causes a writ of injunction was prayed, inhibiting the State Treasurer from paying any outstanding warrants upon the general fund for the years 1874, 1875, and 1876 respectively, before or without at the same time paying the warrants of the plaintiff.

We are uninformed of the special deficiencies of this petition, and as the reasons of the judge a quo are not in the transcript, we are ignorant of the grounds upon which the exception was sustained.

For the purposes of the exception the facts and allegations of the petition are taken as true. It is then assumed to be true that the appropriations for the three named years are largely in excess of revenues, and some of them must therefore be null— that the Treasurer has paid, and is paying, such as he may choose or select without regard to their nature or character, giving precedence to some and postponing others — and that if the Treasurer continues to pay warrants according to his own pleasure, refusing payment of any of the plaintiff’s, the inevitable result will be that the funds now applicable to the plaintiff’s warrants will be exhausted without his receiving anything.

The petition alleges the plaintiff to have been a constitutional officer, whose salary is fixed by the organic law. It has been held uniformly that a Legislature cannot deprive a constitutional officer of the salary which the Constitution assigns to him. If it be true that the Treasurer is paying warrants of inferior dignity than those held by the relator, when the funds are insufficient to pay all, and when some ought not and have no right to be paid because the appropriations for them were in excess of the revenues — is not the Treasurer doing in effect what the courts-say the Legislature cannot do? And if that be so, what better cause of action could the plaintiff have against the ministerial officer who is thus inflicting on him a grave and irreparable injury?

The Constitution being the supreme law, and the plaintiff’s salary having been fixed by that, the Legislature cannot divert the revenues of the State, properly applicable to its payment, to other purposes. If it be desirable to have appropriations for other purposes than carrying on the government, and moving its machinery, as it always is, the Legislature must raise the revenue for such appropriations. If it fails to do so, and the appropriations exceed the revenue, some of them are void and cannot be paid, but the deficiency does not fall on those which the Constitution may be said to demand shall be paid.

The plaintiff has set up an apparently good cause of action. The exception was improperly sustained.

Judgment reversed,, injunction reinstated, and cause remanded.