Riley v. Carter , 165 Okla. 262 ( 1933 )

We cannot concur in the interpretation of the constitutional provision announced in the majority opinion that the creation of an office thereunder, and providing for the fixing of the salary thereof by legislative enactment, constitutes an appropriational proprio vigore for the salary of such office and dispenses with the necessity of a legislative appropriation therefor.

When we consider our state Constitution in relation to the Legislature and its duties, and the sections of the Constitution relating to appropriations, and our own court decisions, it seems to us that it is clear that the framers of the Constitution intended for the Legislature to make levies to cover the expenses of the state government, and to make appropriations out of the funds so levied to meet the needs of the state for a period of two years.

Section 2, art. 10:

"The Legislature shall provide by law for an annual tax sufficient, with other resources, to defray the estimated ordinary expenses of the state for each fiscal year."

Section 3, art. 10:

"Whenever the expenses of any fiscal year shall exceed the income, the Legislature may provide for levying a tax for the ensuing fiscal year, which, with other resources, shall be sufficient to pay the deficiency as well as the estimated ordinary expenses of the state for the ensuing year."

Section 4, art. 10:

For the purpose of paying the state debt, if any, the Legislature shall provide for levying a tax, annually, sufficient to pay the annual interest and principal of such debt within 25 years from the final passage of the law creating the debt."

Section 33, art. 5:

"All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the five last days of the session."

Section 36, art. 5:

"The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever."

Section 55, art. 5:

"No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payment be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

Subject to the limitations of the federal Constitution, the law-making powers of the people of the state are supreme, and in the exercise of that right there can be no question but what a provision could have been incorporated in our Constitution making a continuing appropriation for the salaries of officers provided for by the Constitution, or, for that matter, officers created by legislative enactment under the provision of the Constitution, and it is equally clear that the payment of salaries for officers provided by the Constitution could be left to the legislative enactment.

The majority opinion lays stress upon the words "appropriation by law," and points out that the phrase "by law" embraces constitutional provisions as well as legislative enactment, and with this conclusion we heartily agree.

This court so held in the case of Betts v. Commissioners of The Land Office, 27 Okla. 64, 110 P. 766. Justice Williams, in discussing the right of the Commissioners of the Land Office to pay the expense of the leasing department, said:

"The Legislature has not acted relative to the payment of the expenses of said leasing department, and until such time, under the controlling requirements of section 10 of the Enabling Act relative to this trust, such expenses are to be paid under the rules and regulations or laws existing at the time of the erection of the state, and section 55, art. 5, does not apply. The provisions of this act of March 4, 1894, provide that all the expenses and costs of the leasing of said lands shall be paid out of the rentals. There was no constitutional provision at that time providing that an appropriation should be effective only for a certain, definite time after its enactment, or that it must specify the sum certain. If it was a valid, continuing appropriation as it existed under the laws of the territory of Oklahoma, and if, by the terms of section 10 of the Enabling Act, it was brought over and kept in force in the state until the Legislature of the state prescribed rules and regulations, it is still a valid, continuing appropriation until the Legislature acts."

And again, in speaking with reference to the right of the Commission to invest and reinvest the school funds, said:

"Section 6 of article 11 of the Constitution constitutes a continuing appropriation of the common school fund and other educational funds for the purposes of investment and reinvestment. Said fund, when in the state treasury, may be paid out under the order of the Commissioners of the Land Office pursuant to rules and regulations made by the Legislature for the purposes of investment and reinvestment in accordance with section 6, art. 11, Const., without any specific appropriation under the requirements of section 55, art. 5, Const."

So we here have two specific instances of appropriation by constitutional provisions, but we do not think the fact that these specific appropriations are found in the Constitution lends any support to the construction placed by the majority opinion upon the constitutional provision that:

"No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

It seems to us that from the fact that the framers of the Constitution made special provisions for the handling and disposition of the trust funds coming to the state for school purposes, but made no such provision for any other expenditures, and then enacted the general provision above referred to with reference to expenditure of all other state moneys, we should reasonably conclude that they intended to leave the expenditure of all other moneys in the hands of the Legislature to be disposed of by appropriation acts; and this seems to us to be the logical construction to be placed upon the provision itself.

The words "such appropriation act" in the constitutional provision must refer to the words "appropriation by law," and must mean the same thing, and therefore it seems to us the proper interpretation of this provision, reduced to its simplest form, would seem to be, "No money shall ever be paid out of the treasury of this state, except in pursuance of an appropriation act, nor unless such payments be made within two and one-half years after the passage of such appropriation act." And in this construction we are supported by the former decision of this court in the case of Menefee, State Treasurer, v. Askew, 25 Okla. 623, 107 P. 159, cited by majority opinion. Justice Williams, speaking for the court, said:

"Section 55, art. 5, of the Constitution provides: 'No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payment be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.'

"The following authorities support the contention that, where a constitutional provision fixes salaries of officers with a limitation, same neither to be changed nor increased during the term to which such officer was appointed or elected, and a definite time being fixed by the Constitution or statute for the payment of such officer, such provisions proprio vigore constitute an appropriation out of the treasury for the payment thereof as the same becomes due. Thomas v. Owens, 4 Md. 189; State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403; State v. Kenney, 10 Mont. 485, 26 P. 197; State v. Weston,4 Neb. 216; State v. Weston, 6 Neb. 16; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266; People v. Goodykoontz,22 Colo. 507, 45 P. 414. And some authorities go to the extent that such is the effect when the office is created by statute, and the salary and time of payment also fixed thereby. Reynolds v. Taylor, 43 Ala. 420; Nichols v. Comptroller, 4 Stew. P. (Ala.) 154; Carr v. State, 127 Ind. 204, 26 N.E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 624. The foregoing rule is criticized and not followed in the case of Myers v. English, 9 Cal. 341; Pickle v. Finley, Comptroller, 91 Tex. 484, 44 S.W. 480; Shattuck v. Kincaid, 31 Or. 379, 49 P. 758; Kingsbury v. Anderson, 5 Idaho, 771, 51 P. 744."

"In the case of Pickle v. Finley, Comptroller, supra, Mr. Chief Justice Gaines, in speaking for the Supreme Court of Texas, said:

" 'Leaving out of view the provision in our Constitution which limits all appropriations to two years, the case of Reynolds v. Taylor, 43 Ala. 420, sustains the position taken by counsel. The Revised Code of Alabama (section 675) provided that a marshal of the Supreme Court should be appointed by the judges of the court, and that "the annual salary of such marshal is two thousand dollars." Another section of the Revised Code (section 210) declares that "the salaries of all officers are payable on the last day of each month." It was held that these provisions were an appropriation to pay the salary. We do not concur in this proposition. The only case cited in its support is that of Nichols v. Comptroller, 4 Stew. P. (Ala.) 154, in which the law which fixed the salary in question was couched in very different language. The words were: "A. salary of $1,749, to be paid quarterly out of any money not otherwise appropriated." The phrase "not otherwise appropriated" means not appropriated to any other purpose than here is appropriated, and clearly implies an intent to make a present appropriation. But we cannot agree that the mere fixing of the salary of an officer implies a purpose to appropriate ipso facto the money for its payment. Neither do we think that a provision in a general code, directing the periods at which the salaries of officers "shall be payable," manifests any such intent. The evident purpose of such a provision is merely to fix the time when the salary may be paid, after the appropriation for its payment has been made. Thomas v. Owens,4 Md. 189, is a leading case upon the same line. The Constitution of Maryland provides that no money should be paid out of the treasury except upon an appropriation made by law, created the office of Comptroller, and also provided that he should receive a salary of $2,500, which should not be diminished during his term of office. The words seem to have been "shall receive" — the same which are employed in the section of our Revised Statutes now under consideration. It was held that this was an appropriation. But it seems to us that the purpose was to name and fix the amount of the salary merely, and not to authorize its payment without a legislative appropriation. In the case of State v. Hickman, 9 Mont. 370, 23 P. 740 (8 L. R. A. 403), the court followed this decision, and placed the same construction upon similar provisions in the Constitution of Montana. In the case of State v. Kenney,10 Mont. 485, 26 P. 197, the same ruling was applied to a legislative enactment, but in that case the statute not only fixed the salary of the Code commissioner, the relator in the suit, but also made it the duty of the Comptroller, upon approval of the work of the commissioners, to draw his warrant for the salaries of the commissioners under the act. A direction that the Comptroller shall draw his warrant in favor of a claimant for a certain sum, it would seem, is an appropriation. Such, again, was the case of State v. Bordelon, 6 La. Ann. 68. There the statute directed that the Treasurer should "pay" the sum in question "upon the warrant of the Auditor of Public Accounts out of any moneys in the treasury not otherwise appropriated." In the case of State v. Weston,4 Neb. 216, the Constitution of Nebraska (art. 16, sec. 25) provided that "the Auditor shall draw the warrants of the state quarterly for the payment of the salaries of all officers under this Constitution whose compensation is not otherwise provided for, which shall be paid out of any funds not otherwise appropriated." This was held to be an appropriation. That Constitution also provided that no money should be paid out of the treasury except upon an appropriation made by law, but did not contain the further limitation that no appropriation should extend beyond two years. In the other cases cited in behalf of the relator which bear upon the point under consideration, the statutes construed contained words which not only fixed the obligation of the state to pay, but also others from which it could be reasonably inferred that the Legislature not only intended to fix the obligation, but also to provide for its payment by making an immediate appropriation'."

And further on in the opinion the court uses this language:

" 'The salary of no officer or employee of the state, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law' — it is clearly shown that a continuing appropriation is not permissible under our Constitution. In none of the authorities that we have been able to find, where a continuing appropriation was permitted, were such sections as 55 and 56, art. 5, supra, contained at that time. See, also, People ex rel. Richardson v. Spruance,8 Colo. 530, 9 P. 628; In re Continuing Appropriations,18 Colo. 195, 32 P. 272. The result is that such appropriation is effective only for 2 1/2 years after the passage of said act by the Legislature."

So, to hold that the creation of an office and the fixing of the salary thereof does in itself constitute appropriation for the payment of such salary without more, we must overrule the former holding of this court in the Menefee Case, and not only must we overrule the former holding of this court, but we must overturn the construction placed on the above constitutional provision by the officers and courts in the discharge of their duty in the administration of the affairs of this state since statehood. It has been the custom in this state, since the enactment of the above constitutional provision, for the Legislature to make appropriations for the payment of all officers and salaries, and to this date this method has been universally pursued, and has been universally adopted and practiced by all of the courts and officials of this state.

We think the rule announced by this court in the Menefee Case is supported by the better reasoning and by the weight of authority. The Supreme Court of Oregon, in the case of Shattuck v. Kincaid, 49 P. 758, said:

"It is difficult to understand, however, upon what principle an enactment of the nature indicated can have the effect claimed for it. The plain letter of the statute falls very far short of an express direction to that end, and the apparent object to be attained is fully accomplished when the salary and times of its payment are definitely fixed. No other or further intendment is predicated of statutes of like nature where individuals only are concerned, and a different rule ought not to prevail because the state is concerned. But we believe the weight of authority is opposed to this latter advance upon the doctrine, and that the better rule requires something more by which to indicate a legislative intendment to effectuate an appropriation. In Nichols v. Comptroller, 4 Stew. P. 154, the case upon which Reynolds v. Taylor, supra, seems to have been based, it was determined that an act fixing a salary, 'payable quarter yearly out of any money in the treasury not otherwise appropriated' made an appropriation for the purpose of meeting the quarterly payments. In Humbert v. Dunn, 84 Cal. 57, 24 P. 111, the act under consideration provided that 'each member (of a commission) shall receive a salary of two thousand four hundred dollars payable monthly, * * * to be paid out of any money in the treasury not otherwise appropriated,' and it was held that this operated as an appropriation. The statutory provisions, as indicated by these cases, are similar to the Nebraska constitutional provision above referred to. And in Cutting v. Taylor (S.D.) 51 N.W. 949, which comes nearer the case at bar, the language employed was: 'The auditor * * * shall issue and deliver to the claimant in each city, town, etc., his warrant upon the territorial treasury for an amount equal to two per cent. of the premiums received upon the policies issued upon any property in any such city, town, etc., and such warrant shall be paid by the territorial treasurer upon presentation thereof.' See, also, State v. Kenney. 10 Mont, 485, 26 P. 197. From statutes of the nature indicated by these authorities the inference is natural and legitimate that it was the legislative intent not only that the amount and times of payment of the salaries should be rendered definite and certain, but that, when falling due, funds in the treasury applicable to their payment should be at all times in readiness for their prompt discharge, and hence the appropriation as a necessary result to meet the purposes of the legislation. It is one thing to fix the amount and times of payment of an officer's salary, and quite another to provide funds, and make them available at specified times, so that the state will not at any time default in its payments, and it does not occur to us that a fixed salary with stated times for the payment of proportional installments thereof can, with any greater propriety, carry with it an appropriation of funds with which to meet the payments than where the state has become otherwise obligated under authority of law, and no appropriation has been made anticipating payment. Whatever may be the correct rule, where the salary is fixed by the Constitution, or where it is by that instrument rendered unchangeable during incumbency, followed by legislation simply fixing the amount and times of payment thereof, it is quite certain that, if regard be paid to the known and well-settled rules of statutory construction, the Legislature has not, by the enactment of such a statute, without else, manifested an intention of setting aside funds in the treasury for its payment. Something more is needed, some setting aside of particular fund, or designation of a fund, out of which it shall be paid, or direction to the officer in charge requiring him to make payment at particular times, or that it be paid out of the treasury."

And this interpretation is supported by these further decisions: Myers v. English, 9 Cal. 341; Pickle v. Finley, 91 Tex. 484,44 S.W. 480; Kingsberry v. Anderson, 5 Idaho, 771, 51 P. 744.

And even if this court had not already adopted this construction of the constitutional provision under consideration, we would feel impelled to follow this construction for the reason that it is the construction that has been adopted since statehood.

This court, in the case of Leininger et al. v. Ward-Beekman Brooks, 139 Okla. 292, 282 P. 467, stated:

"The rule of departmental construction was announced by the territorial court in Hoffman v. County Commissioners,3 Okla. 325, 41 P. 566, to be as follows: 'In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who are called upon to act under the law, and where appointed to carry its provisions into effect, is entitled to very great respect.' And it has been followed in Foot v. Town of Watonga, 37 Okla. 43, 130 P. 597, 598, in the following language: 'The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for their judicial interpretation.' Which was cited with approval in Glasco v. State Election Board, 121 Okla. 119, 248 P. 642. See, also, Crosbie v. Partridge, 85 Okla. 196, 205 P. 758."

We desire to point out in the case of Nichols v. Comptroller, 4 Stew. P. 154, cited in the majority opinion, that the act construed fixing the salary provided that the same should be "payable quarter yearly out of any money in the treasury not otherwise appropriated," but in our Constitution no similar language is employed.

The Alabama Constitution does not have the provision found in ours limiting to two and one-half years payment made after the passage of the appropriation act, and therefore, our Constitution could not be said to be copied from the Alabama Constitution, and it occurs to us that it would be just as logical to say that if the framers of our Constitution did have in mind the construction placed upon the Alabama Constitution by its courts, they sought to avoid the effect thereof by placing in our Constitution this provision against continuing appropriations.

We refuse to become alarmed about the independence of the judiciary. In a government where the will of the people is not supreme, the independence of the judiciary would certainly be vital in the protection of the rights of the people, but in a government such as ours, where the government itself is simply the will of the people expressed through its officers, agents, and servants, who are selected by the people themselves, we are impelled to the conclusion that the independence of the judiciary is not fraught with the meaning or importance that it was in the days of kings and crowns, when the people themselves did not make and execute the laws, either directly or through their chosen representatives. The framers of the Constitution only gave members of this court a limited tenure in office and were not afraid to leave the fixing of the salaries of the judiciary in the hands of the Legislature, and it appeals to us that the right to fix the salary of the judiciary is certainly as great a power over the judiciary as the right to make appropriations to meet that salary. We cannot help but believe that if the framers of the Constitution had felt that giving the Legislature the right to make appropriations to meet the salaries of judicial officers would make a dependent judiciary, they would have been equally as apprehensive that the giving to the Legislature the right to fix the salaries would have done so. The argument that the Legislature could destroy the judiciary by refusing to make any appropriation certainly can have no greater force than the argument that giving the Legislature the right to fix the salary of the judiciary gave the Legislature the power to destroy it, and yet the framers of our Constitution expressly gave to the Legislature this latter right, and we, therefore, conclude that the framers of our Constitution were not afraid to give to the Legislature the supreme power in the matter of appropriation. In passing we desire to note that section 10, art. 23, of the Constitution applies to all officers alike, whether legislative, executive or judicial, and has no peculiar application to the judiciary of this state.

As was said by the court in the case of Myers v. English,9 Cal. 341, supra:

"It is very true that the Legislature possesses the power to stop the whole machinery of government, whenever it is willing to take the responsibility of doing so. That body might repeal all the existing laws, and leave the people of the state practically without government for a time. So the Legislature, under the Constitution of this state, at one session, can fix the compensation of members at the succeeding session; and this compensation, though merely nominal, cannot be increased by the incoming Legislature. The Legislature has the power to repeal all existing revenue laws, and thus leave the state treasury without funds. The Legislature has also the power of taxation to the extent of the value of all the property in the state.

"But with all due reference to the learned and distinguished jurist who decided the case of Thomas v. Owens, we are compelled to arrive at a different conclusion. We think the power to collect and appropriate the revenue of the state is one peculiarly within the discretion of the Legislature. It is a very delicate and responsible trust, and if not used properly by the Legislature at one session, the people will be certain to send to the next more discreet and faithful servants.

"It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the courts have no means, and no power, to avoid the effects of nonaction. The Legislature being the creative element in the system, its action cannot be quickened by the other departments. Therefore, when the Legislature fails to make an appropriation, we cannot remedy that evil. It is a discretion specially confided by the Constitution to the the body possessing the power of taxation. There may arise exigencies, in the progress of human affairs, when the first moneys in the treasury would be required for more pressing emergencies, and when it would be absolutely necessary to delay the ordinary appropriations for salaries. We must trust to the good faith and integrity of all the departments. Power must be placed somewhere, and confidence reposed in some one."

We, therefore, reach the conclusion that it was the intention of the framers of our Constitution that the judiciary, as well as all other officers, should be paid by appropriation through legislative acts. We do not think, however, that an interpretation of this provision of the Constitution is necessary to a determination of this case. The Legislature did appropriate $6,000 for the payment of petitioner's salary, and this amount it undertook to divide into twelve equal payments and to pay the petitioner only $500 per month. We think this provision which undertakes to restrict the amount that should be paid to the respondent monthly is unconstitutional and void. The petitioner's salary is fixed at $7,500 per annum, payable monthly, which would amount to $625 per month, and since the Legislature could neither increase nor decrease petitioner's salary during his term of office, they certainly could not provide for a lesser payment per month than was actually due him, although they might fail to appropriate a sufficient amount to take care of his salary for the entire year, and this court might grant the petitioner the writ of mandamus upon this ground, but to do so would permit the petitioner to exhaust the appropriation which was made for him in about nine and one-half months of the year and leave no appropriation to take care of the salary for the remaining months.

But, even though a clear legal right may be shown, the court may in the exercise of its discretion refuse to grant the writ, and we feel that in view of the economic conditions existing at this time and with the knowledge that the Legislature in its effort to meet these conditions reduced the appropriation for all state officers alike, and that in doing so the Legislature was simply mindful of the fact that thousands of citizens were out of employment; that people were unable to pay their taxes; that the sources of income to the state had been greatly reduced and impoverished, and that thousands of the citizens of this state were losing their property because of the burdens of taxation, and while confronted with this impoverished condition of the citizens to pay taxes, the Legislature was compelled to add unusual burdens to take care of the unemployed of this state and to help relieve distress and want, and in view of all these demands upon the state treasury the Legislature felt there would be no undue hardship or burden upon the officers of this state to make appropriations for only a portion of their salary, and believing that the future Legislature will make a provision for taking care of the balance of the salary of this petitioner, as well as the other officers involved, we feel that this court ought to exercise its equitable prerogative to refuse to grant the petitioner the writ as applied for in this case.

In reaching this conclusion, we desire to say, if there were any evidence here that the action of the Legislature could be construed, in any way, as being unfriendly toward the judiciary of this state, we would be impelled to a different conclusion, but, since all of the officers of the state, including the judiciary, were treated exactly alike, we can find nothing upon which to base the conclusion that the Legislature was in any way unfriendly toward the judiciary of this state.

On Petition for Rehearing.