Battles v. Childers , 177 Okla. 589 ( 1936 )

I cannot agree with the majority opinion. The present commission, of which the plaintiff is a member, was created by House Bill No. 84, S. L. 1935, c. 70, art. 3. It fixed the term of the commissioners at four years and provided for an annual salary of $4,000 for each member. That portion of the bill fixing salaries reads as follows:

"Each of said commissioners shall be paid an annual salary of four thousand ($4,000) dollars per year, and all other assistants and employees shall be paid such salary and compensation as may be by the commission deemed just and equitable for the services rendered not to exceed thirty-six hundred ($3,600) dollars per year each, for technical help, and not to exceed eighteen hundred ($1,800) dollars per year each, for other help. All salaries and compensation for the services provided for in this section shall be payable monthly out of the money appropriated or to be appropriated hereafter. The members of the commission, or any employee or employees thereof, shall be allowed their actual and necessary expenses in the performing of official duty when absent from the State Capitol upon official duty, but no expense account of either the members of the commission nor (sic) any employee thereof, shall be paid until the same has been itemized, sworn to and approved by the commission, provided expenses shall be limited to four ($4) dollars per day exclusive of transportation." Sec. 8.

The act became effective March 22, 1935.

Thereafter, by House Bill No. 540, S. L. 1935, effective April 15th of that year, the Legislature made the following appropriation:

"There is hereby appropriated out of any moneys in the State Treasury not otherwise appropriated, the following sums or so much thereof as may be necessary for the purposes herein mentioned and no other.

"Salaries, traveling and other expenses of members and employees of the Conservation Commission of the State of Oklahoma, but in no event shall the hotel expenses exceed four ($4) dollars per day, per person, supplies, equipment and contingent expenses of office thereof, and other lawful expenditures authorized by law, to be performed by the State Conservation Commission for the period beginning on the effective date thereof and ending on June 30, 1935, fifty thousand ($50,000) dollars. For the fiscal year beginning July 1, 1935, and ending June 30, 1936, one hundred thousand ($100,000) dollars."

No appropriation was made for the fiscal year 1936-37. The State Auditor has refused to audit plaintiff's claim for July, 1936, salary and to issue warrant therefor for the reason that such act would be violative of section 3568, O. S. 1931, and section 55, art. 5, of the Constitution, prohibiting the issuance of any warrant in disbursement of state funds except in pursuance of an act of the Legislature definitely appropriating the fund for the purpose for which the warrant is issued.

Plaintiff takes the view that the act creating the commission (H. B. No. 84, S. L. 1935) and fixing salaries of the members thereof is in itself a sufficient appropriation measure to satisfy the aforesaid constitutional and statutory provisions. In this he relies upon the decisions in Riley v. Carter,165 Okla. 262, 25 P.2d 66; Edwards v. Carter, 167 Okla. 287,29 P.2d 610; State ex rel. Telle v. Carter, 170 Okla. 50,39 P.2d 134.

In my opinion Riley v. Carter, supra, has no application to the question involved here. There the salary for a constitutional office was involved and it was held that the office was created and the salary therefor appropriated by the Constitution. The opinion differentiates between a constitutional office and one created by statute. Edwards v. Carter, supra, involved the salary of the Judge of the Criminal Court of Appeals. Provision for that office was made in the Constitution and the court was established by the Legislature. Article 2, chapter 14, S. L. 1909. In that act it was provided that "said Judges shall have the same qualifications and receive the same salaries as Justices of the Supreme Court. * * *" The conclusion reached in the Edwards Case was controlled by the decision in the Riley Case. In the Telle Case, section 3518, O. S. 1931, which provides: "That the following clerical, stenographic and other positions are hereby created, and the amounts set opposite each are hereby fixed as the annual salary for the same, which shall be paid out of funds appropriated therefor, monthly, upon warrants issued by the State Auditor," was under consideration. Here the material portion of the statute before us is as follows:

"Each of said commissioners shall be paid an annual salary of four thousand ($4,000) dollars per year. * * * All salaries * * * provided for in this section shall be payable monthly out of the money appropriated or to be appropriated hereafter." Laws 1935, ch. 70, art. 3, sec. 8.

In comparing the foregoing provisions, the difference in scope and legal effect as applied to the question of appropriation is obvious. In the Telle Case the court held that the language "the amounts set opposite each are hereby fixed as the annual salary for the same, which shall be paid out of funds appropriated therefor, monthly, upon warrants issued by the State Auditor, * * *" amounted to an appropriation by law. From the language of the opinion, it appears to me that the conclusion reached in that case was prompted by the view that it was the clear legislative intent to create an appropriation by the act that created the office. Here the salaries are to be paid monthly "out of the money appropriated or to be appropriated hereafter." It is evident that the Legislature intended that the payment of the salaries provided for in the act was dependent upon future appropriations by the Legislature. There is no reference to future appropriations in the act in the Telle Case. The reference is to funds "appropriated therefor," indicating with some degree of clearness that an appropriation was made by the terms of the act. Here the language employed is substantially different. Conceding the rule announced in the Telle Case to be correct, in my opinion it is neither applicable nor controlling here. To broaden our construction of such statutes and to go beyond the decision in the Telle Case, as does the majority opinion, is, in effect, to nullify the provisions of section 55, art. 5, of the Constitution and to overrule former decisions of this court. Menefee v. Askew, 25 Okla. 623, 107 P. 159; Meyer v. Clift, 31 Okla. 793, 123 P. 1042; Carter v. Rathburn,85 Okla. 251, 209 P. 944. Without legislative intent to appropriate, there can be no appropriation. Menefee v. Askew, supra. Here the act creating the office, by its positive terms, shows an intention not to make an appropriation, but to leave the appropriations to subsequent acts of the Legislature.

In my opinion, the warrant in question was not based upon an appropriation and is consequently illegal and void, and for that reason the writ should be denied.