Riley v. Carter

1933 OK 448, 25 P.2d 666, 165 Okla. 262, 88 A.L.R. 1018, 1933 Okla. LEXIS 312

• Court: Supreme Court of Oklahoma
• Decided: September 8, 1933
• Docket: 24903
• Status: Published

Opinions

BIGGERS, Special V. O. J.

This is an original action instituted in this court by the petitioner, Fletcher Riley, who alleges that he is a member of the Supreme Court of the state of Oklahoma; that he was elected a Justice of this court from the Ninth district at the general election held in November, 1930, and assumed the duties of his office in January, 1931; that at the time of his election, section 3481, O. S. 1931, Laws of Oklahoma 1929, chapter 273, sec. 1, was in full force and effect, and that said act fixed the salary of a Justice of the Supreme Court of this state at the sum of $7,500 per year, payable monthly. He further alleges that the respondent E. C. Carter is the duly elected, qualified, and acting State Auditor, and that the respondent Ray O. Weems is the duly elected, qualified, and acting State Treasurer; that for the month of July, 1933, he presented to the respondent E. C. Carter, State Auditor, in the form required by law, a claim for his salary for said month in the sum of $625, and that said F. C. Carter, State Auditor, refused to allow said claim in the amount of $625, but did allow said claim for the sum of $500, and issued his warrant payable to petitioner for the sum of $500, which petitioner refused to accept. He further alleges that the respondent E. C. Carter, State Auditor, will in the future refuse to allow the claim of petitioner for his salary as a Justice of the Supreme Court of this state in any sum other than the sum of $500 per month, and that the respondent Ray O. Weems, State Treasurer, will refuse to pay any warrant issued in payment of his salary in excess of the sum of $500, and he prays this court that it issue a writ of mandamus commanding and requiring the respondent F. O. Carter, State Auditor, to allow said claim in the sum of $625, and to issue a warrant therefor, and commanding and requiring the respondent Ray O. Weems, State Treasurer, to pay said warrant so issued, or to indorse thereon the proper notation as is by law provided for the allowance of interest thereon.

The petitioner contends that, his salary being fixed at the sum of $7,500 per year at the time of his election, and being payable monthly at the rate of $625 per month, any act of the Legislature which has for its purpose or the result of which would amount to a change in said salary during his term of office is contrary to and prohibited by the Constitution of this state, and that if the Legislature was without constitutional authority to directly change his salary during his tenure of office, they could not indirectly accomplish this purpose by withholding their appropriation.

The respondents have filed separate responses to the petition of petitioner, and the respondent F. C. Carter, State Auditor, has alleged in his response: (1) He admits that petitioner filed with him his claim for the sum of $.625 for the salary due petitioner as a Justice of the Supreme Court for the month of July, 1933, and that respondent allowed said claim in the sum of $500 but disallowed said claim in the sum of $125 by indorsing thereon “Claim disallowed in the sum of $125 by reason of inadequate appropriation”, and that he drew and tendered to petitioner a warrant in the sum of $500 payable to petitioner, but that petitioner refused to accept same; (2) that respondent refused to allow said claim in the sum of $625 for the reason that the General Appropriation Act, Senate Bill No. 27, passed at the Regular Session of the 14th Legislature, appropriated for the fiscal year beginning July 1, 1933, and ending June 30, 1934, the sum of $54,000 for the payment of the salaries of the nine Justices constituting the Supreme Court, and incorporated in said bill the following provisions : “Provided, That the salaries provided in this bill shall be paid monthly in twelve equal payments for each year,” and that by reason thereof he was and is without authority to issue a warrant for the July, 1933, salary of petitioner in a sum in excess of the sum of $500: (3) that respondent is without authority to issue to petitioner a warrant in the sum of $625 for his July, 1933, salary because same would be for a sum in excess of the amount appropriated by the Legislature for that purpose, and therefore in violation of section 3568, O. S. 1931; (4) that the respondent is without authority to issue a warrant to petitioner in the sum of $625 for his July, 1933, salary for the reason that the issuance of a warrant in that amount would be in violation of section 55, art. 5, of the Constitution of Oklahoma; (5) that the appropriation of the public funds of the state is strictly a legislative prerogative, and that neither he, as State Auditor, nor this court, as a part of the judicial branch of this government, can make an appropriation or increase an appropriation made by the Legislature, for to do so would violate section 1, art. 4, of the Constitution of Oklahoma; (6) that the writ of mandamus is a discretionary writ, and even though petitioner may show himself as entitled to a right for which mandamus may be the proper remedy, that the economic conditions now existing in this state and generally are such that the court in the exercise of the discretion vested should refuse the issuance of the writ.

The respondent Ray O. Weems, State Treasurer, has filed his response alleging: (1) That there was presented to him by the State Auditor a warrant drawn upon the general funds of this state payable to- peti tioner and. in the sum of $500 in payment of the July, 1933, salary of petitioner as a Justice of the Supreme Court of this state, and that he registered same as a payable warrant, and that said warrant has never been presented to him for payment; (2) that no warrant in the sum of $,625 in payment of the July, 1933, salary of petitioner as a Justice of the Supreme Court of this state has ever been presented to him, and that, therefore, he has not failed or refused to perform any duty enjoined upon him by law in so far as the payment of petitioner’s salary for the month of July, 1933, is concerned; (3) that, while no warrant in the sum of $625 for the July, 1933, salary of petitioner has been presented to him, if such situation should arise he would be without authority to either register or pay same because to do so would be in violation of sections 3558, 3568, and 3764, O. S. 1931, and section 55, art. 5, Oklahoma Constitution ; and he further adopts as his defense all of the allegations set forth in the response filed herein by F. O. Carter, State Auditor.

From this it will be seen that both respondents contend that to have issued a warrant in the sum of $625 for the July, 1933, salary of petitioner and to have paid said warrant would have violated and will violate the provisions of the Constitution and statutes quoted, and that this court is without authority to either make an appropriation of the public funds of this state or to increase an appropriation already made by the Legislature, and that even though we hold that the petitioner has shown a clear legal right to the writ, this court should, in the exercise of its discretion, withhold same. It will be seen, then, that the real question to be decided is, Did the framers of the Constitution and the people who adopted same fail to make an appropriation in the Constitution itself for the payment of the salaries of the judges of this state and thereby make the judiciary of this state dependent upon the Legislature for their compensation and the amount thereof? Clearly this result follows if no appropriation is made in the Constitution to pay the salaries of the judges of this state, as no other branch of this government has any right or authority to make appropriations save the people themselves or their representatives in the Legislature, and it is provided in the Constitution that no money can be drawn from the treasury of this state except in pursuance of an appropriation by law.

In view of the importance of the question involved, we shall first discuss the suggestion made in the pleadings, oral argument, and briefs filed, that we should consider the effects flowing from the issuance of the writ, and that although we may determine that petitioner may have shown a clear legal right for which mandamus is an appropriate remedy, we should in the exercise of our discretion withhold same.

That the writ of mandamus is not a writ of right, but is a discretionary writ, is firmly established, and, being such, courts, in awarding or denying such writ, exercise a judicial discretion, and in the exercise of which should be guided by the results that follow the issuance or denial of such writ, and if the evils following the issuance of the writ will outweigh the evils sought to be corrected, the court may, in the exercise of its discretion, refuse to issue the writ even though petitioner may have shown a clear legal right for which mandamus is an appropriate remedy. Stearns v. Sims, 24 Okla. 623, 104 P. 44; Board of Excise of Oklahoma County v. Board of School Directors of District No. 27 of Oklahoma County, 31 Okla. 553, 122 P. 520. In view of the settled practice relating to writs of mandamus and the discretion exercised by courts in the granting or refusing of said writs, this court might give serious consideration t¡> the contention asserted in this case that the court should take judicial notice of existing economic conditions and refuse to issue the writ even though the petitioner may have shown himself entitled thereto, if a decision on this question involved only the sum of $125 per month to petitioner, but, as we view it, this phase of the question is of no consequence, for a determination of the question involves a continuance in this state of a constitutional government divided into three separate branches, the 'legislative, the executive, and the judicial, and the continuance in this state of an independent judiciary. It is admitted by all that at the time the respondent was elected a Justice of this court, his salary then, and his salary now, was, and is, fixed at the sum of $7,500 per year, payable monthly, or the sum of $625 per month. Section 10, art. 23, of our Constitution provides :

“Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment,. or during his term of office, unless by operation of law enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appoint ed: Provided, That all officers within this state shall continue to perforin the duties of their offices until their successors shall be duly qualified.”

If it be assumed that the only reason for the placing of this provision in our Constitution was to make secure to the public officials of this state the receipt of the salary fixed at the time of their election, then the suggestion of the withholding of the writ by this court would be entitled to the serious consideration of this court, but this assumption overlooks the history of the reasons for the insertion of this and similar provisions in the Constitutions of practically all of the states and the Constitution, of the United States. As applied to the judicial department, the history of such provisions shows clearly that they were inserted in the various Constitutions for the purpose of making absolutely independent the judicial branch of the government, and while the language employed in the various Constitutions varies somewhat, the evident purpose expressed in each is the continuation of separate and independent branches of government.

It is a matter of judicial history that one of the abuses of the power of the King of England that resulted in the Revolution of 1688 was the abuse that followed the power of appointing and removing at will the judges. To appreciate the evils that flowed from a dependent judiciary we may well consult the experience of England as shown by their judicial history and experience during the Stuart Dynasty, when the judges 'held office at the pleasure of the King who appointed them, and when they depended entirely upon the generosity of the appointing power for their compensation and the amount thereof, which resulted in the judges becoming but tools of the Crown, who made and unmade them. Seroggs and Jeffrey are but representative of such a system. Whole benches were appointed for the distinct purpose of carrying- into effect some new or flagrant assumption of power by the Crown, and they willingly obeyed the commands of the master and creator. Outraged by such a judicial subservience that followed a dependent judiciary, following the Revolution, the people made the tenure of the judges good behaviour, and this was proclaimed by the people of England as a triumph of liberty, and changed the exercise and enjoyment of the inalienable rights of the people of England from an abstract right to one of complete enjoyment. It may well be said that this change of the tenure of judges in England marked the creation and beginning of an independent judiciary, and that as years have passed the people of England and all other countries have learned the value and necessity of an independent judiciary and have in their Constitutions and laws endeavored to provide for a continuation of the same. It is significant that in the enumeration of the wrongs suffered at the hands of the King, the Declaration of Independence recites that he, the King, had “made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries.”

The Constitution of the United States, after providing for three separate and distinct branches of the government therein created and set up, in article 3, sec. 1, provided :

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.”

It will be observed that the difference between the limitations as to the changing of compensation contained in the above-quoted section and the limitations contained in our Constitution is that the limitations imposed in the Constitution of the United States go only to diminution of compensation, while the limitations contained in our Constitution prevent the compensation being either diminished or increased. It is only necessary to look to the proceedings of the convention which framed the Constitution of the United States to determine fthe reasons underlying the- ¡incorporation in that Constitution of the quoted clause, and that same was not included for the purpose of making secure to the justices and judges constituting the judicial branch of that government the exact amount of salary that was payable to such justices ox-judges at the time they took office, but that the controlling thought and purpose in inserting such provision was to create to these people of the United States an independent judiciary. As was said by the Supreme Court of the United States in the case of Evans v. Gore, 253 U. S. 245, 64 LEd. 887, and at pages 248 and 249 of said decision:

“These considerations make it very plain, as we think, that the primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and com petent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations, and pervading principles of the Constitution and to the administration of justice without respect to persons and with equal concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and the principle on which it proceeds.

“Obviously, diminution may be effected in more ways than one. Some may be direct and others indirect, or even evasive, as Mr. Hamilton suggested. But all which by their necessary operation and effect withhold or take from the judge a part of that which has been promised by law for his services must be regarded as within the prohibition. Nothing short of this will give full effect to its spirit and principle.” ■

In other words, the members of the convention that framed the Constitution of the United States, being men of profound learning, ripe wisdom, possessed of a high spirit of liberty and a love of constitutional government, realized that when courts ceased to be independent, the Constitution will cease to be supreme, and that if the Constitution does not maintain the courts independent of the legislative and executive branches, the courts cannot maintain the Constitution against these branches, and to make secure the independence of the judicial department the quoted clause was inserted.

In a very recent case the Supreme Court of the United States had occasion to go into and review again the underlying purpose which the framers of the Constitution of the United States had in mind and which led them to incorporate in that document the limitation prohibiting the diminishing of the salary or compensation of the justices and judges of the judicial system created by the Constitution, and we refer to the ease of O’Donoghue v. United States, 77 L. Ed. 950. In that opinion Mr. Justice Sutherland, speaking for the court, makes an able and exhaustive review of the history of this provision and the cases construing same, and reaches the conclusion that the paramount object to be obtained in the adoption of the quoted clause was the maintenance of an absolutely independent judiciary in these United States so that their acts should not be controlled by or subjected directly or indirectly to the coercive influence of either of the other departments of government, and such has been the uniform holding of every court whose decisions we have read, or to whose decisions we have been invited, in construing similar provisions in the various state Constitutions.

Mr. Justice Sutherland, in stressing the importance of maintaining an independent judiciary in the above case, used the following language:

“In the light of the foregoing views— time honored and never discredited — it is not extravagant to say that there rests upon every federal judge affected nothing less than a duty to withstand any attempt, directly or indirectly ip contravention of the Constitution, to diminish this compensation, nof for his private advantage— which, if that were all, he might willingly forego — but in the interest of preserving unimpaired an essential safeguard adopted as a continuing guaranty of an independent judicial administration for the benefit of the whole people.”

Our constitutional convention was composed of many learned men, some of whom were profound lawyers and who were entirely familiar with the history of the reasons prompting the insertion in the Constitution of the United States and various state Constitutions of similar provisions, and we do not hesitate to say that the underlying principle of government sought to be protected and made permanent was the complete independence of the three branches of government provided for in the Constitution. As we have heretofore stated, tho limitation contained in our Constitution goes further than that contained in the Constitution of the United States and many of the state Constitutions, our Constitution providing, “In no case shall the salary or emoluments of any public official be changed after his election or appointment. * * *” As will be seen from this, the framers of the Constitution sought to make more secure the independence of the judiciary in this state, and to remove them from any possible influence the legislative branch of the government might have over the judicial by reason of a power to increase their compensation or salary during their tenure of office. In other words, that the courts of this state need withhold no decision dealing with the power of either of the other departments through fear of retaliation by a reduction in their salaries, nor need they grant an opinion through the hope of a reward by the granting of an increased salary. And so, in answer to the suggestion that this court should take judicial notice of present economic conditions in determining what exercise we shall make of our discretion in this case, we say that when we are presented with a course of conduct by one branch of the government of this state which tends to destroy the independence of the other branches, and the continuation of which, if sanctioned by this court, will result in the establishment in this state of a dependent judiciary, we will not hesitate to declare the law as we find it and will issue such writs or process as may be necessary to continue in this state its Constitution as the supreme law .and command obedience thereto, for, as was said by Chief Justice Marshall during the course of the debates of the Virginia State Convention of 1829-30:

“The judicial department comes home in its effects to every man’s fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary.”

As to the second proposition, it is only necessary to say that this court has always recognized that the raising of revenue and the appropriation of same is a prerogative vested solely in the legislative branch of the government, and most certainly this court does not, nor does any other court so far as we have been able to find, assert that the judicial department has any control over the legislative branch of the government so long as they act with due regard to the commands and limitations contained in the Constitution. This court has no power to make appropriations or to add to or take from appropriations made by the Legislature in a constitutional manner, and our inquiry is, therefore, of necessity limited to determining whether an appropriation has been made, and in the making of same whether any constitutional limitation has been violated. We do not understand the petitioner contends that we possess either the power to make appropriations or to disturb appropriations once lawfully made. Recognizing this principle, then, in a determination of the question before us, we must determine if an appropriation has in fact been made, and, if none has been made, deny the petitioner the relief sought.

In a discussion and determination of this question it is necessary that we first look to the Constitution and various acts of the Legislature which are asserted by the respondents ¡to sustain and justify their course in refusing to issue, or pay, if issued, a warrant in the sum to which under the statute fixing his compensation the petitioner would be entitled. Section 55, art. 5, of our Constitution provides as follows:

“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.”

Section 3568, O. S. 1931, provides as follows :

“It shall be unlawful for the State Auditor to issue or draw any warrant in disbursement ;of the Bublic Building Fund, Section 13. Funds, New College Funds, Game Protection Fund, General Revenue Fund, or any other state fund or fund under the management of the state, except in pursuance of an appropriation act in which the amount appropriated shall be distinctly specified and stated. Provided, no warrant shall be issued by the State Auditor in disbursement of any moneys appropriated out of any of the funds above mentioned after 'two and onte-half years from the date of the passage of any such appropriation act. And provided, further, that in the event of the issue by the Auditor of any warrant without an appropriation having been first provided for such purpose by the Legislature, or in excess of the amount appropriated, the same shall not be a charge against the state or paid from its funds, but shall be a charge against the Auditor and his bondsmen.”

From a reading of the quoted sections, it will be seen that the Constitution prohibits any money being paid out of the state treasury except in pursuance of an appropriation “by law.” It is significant that the framers of our Constitution used the language “by law,” rather than an appropriation “by the Legislature,” as is provided in the Constitutions of many of the states. The quoted section of the statute makes workable this section of the Constitution, and prohibits and makes unlawful the issuing of any warrant in disbursement of any state fund or funds in the possession of, or under the management of, the state, except in pursuance of an appropriation. The language of these sections is so plain that it admits of but one construction, and that is that no funds shall be withdrawn from the state treasury, nor shall any warrant be issued or drawn against any moneys in the state treasury, except in pursuance of an appropriation by law, and therefore, unless there has been an appropriation made by law authorizing the payment of the salary of the petitioner, and in the sum of $625 per month, clearly the State Auditor could not draw or issue a warrant for this amount in payment of the July, 1933, salary of petitioner, and if said warrant were issued, the State Treasurer could not pay same, because the law specifically prohibits the issuing of a warrant by the State Auditor, or the payment of a warrant if issued by the State Treasurer, unless an appropriation by law has been made to pay same; and, therefore, we next inquire: (1) What constitutes an appropriation “by law” as provided for in our Constitution? and (2) has an appropriation “by law” been made to pay the salary of the petitioner at the rate of $7,500 per year and at the rate of $625 per month?

This state is committed to the rule that no particular words need be used in making an appropriation, and that an appropriation may be implied where the language used reasonably leads to the conclusion that such was the intention in the employment of those words. Menefee, State Treasurer, v. Askew, State Game and Fish Warden, 25 Okla. 623, 107 p. 159; Edwards v. Childers, State Auditor, 102 Okla. 158, 228 P. 472. It being admitted by the petitioner that the Legislature has not made an appropriation in an amount that will, for the fiscal years ending June 30, 1934, and June 30, 1935, provide the full salary the petitioner is entitled to receive, if an appropriation has been made to pay said full salary, we must look to the Constitution to find same. The section of our Constitution providing for the withdrawal of moneys from the state treasury only . in pursuance of an appropriation “by law” clearly means that an appropriation may be contained in the Constitution itself, for the proposition that the Constitution of a state constitutes one of the laws of the state, we think, can be no longer doubted. Mississippi & M. R. Co. v. McClure. 77 U. S. (10 Wall.) 515, 19 L. Ed. 998; White v. Hart, 13 Wall. 652, 20 L. Ed. 687; New Orleans Gaslight Co. v. Louisiana Light, etc., Co., 115 U. S. 672, 29 L. Ed. 524.

At the time of the framing of our Constitution, there were- many states whose Constitutions contained the same or similar provisions. The phrase there used, “except in pursuance of an appropriation made by law,” had long since received a definite and fixed interpretation. The leading case, Thomas v. Owens, 4 Md. 189; was written in 1853. In 1890 the Supreme Court of Montana, in the case of State ex rel. Rotwitt V. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403, when called upon for construction of constitutional provisions very similar to- those of our Constitution, in a case involving practically the same questions, delivered an able and exhaustive opinion. It cannot be supposed that the able framers of our Constitution were uninformed on this score, since these cases were, in subsequent decisions of this court, specifically referred to by members of the court who had personally assisted in the drafting of the Constitution. In the Montana case, Rotwitt sought a mandamus against Hickman, State Treasurer, to compel him to pay a warrant held by Rotwitt for his salary as Secretary of State. Hickman defended upon the ground that' the Legislature had failed to make an appropriation out of which the payment could be made. Since the opinion of the Montana court is remarkably lucid and exhaustive and states with superb clarity the argument for the existence of a constitutional appropriation in this case, we quote from it at length:

“There is no statute which makes an appropriation or otherwise provides for the payment of this warrant, and the sole question for decision depends upon the interpretation of the following clauses of the Constitution: ‘Until otherwise provided by law, the Governor, Secretary of State, State Auditor, Treasurer, Attorney General, and Superintendent of Public Instruction, shall quarterly, as due, during their continuance in office, receive for their services compensation, which is fixed as follows: * * * Secretary of State, $3,000 per annum. * * * The compensation enumerated shall be in full for all services by said officers respectively rendered in any official capacity or employment whatever during their respective terms of office, and the salary of no official shall be increased during his term of office. No officer named in this section shall receive for the performance of any official duty any fee for his own use. * * *’ Article 7, sec. 4.

“ ‘Except as otherwise provided in this Constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election. * * *’ Article ¡5, sec. 31. * * *

“ ‘The State Auditor and State Treasurer shall perform such duties as are prescribed in this Constitution and by the laws of the state.’ Article 7, sec. 1. * * *

“What. then, are ‘appropriations made by law?’ A majority of the states of the American Union have not adopted Constitutions which specify the salaries that should be paid to their officers. Numerous cases can be found in tlieir courts which determine the necessity of an appropriation by the law-making department before the payment of money can be authorized by the custodian of the public funds. But the fundamental law of this state constitutes an exception in this important feature, and the decisions of such courts do not enlighten us. All the adjudications which construe constitutional phrases similar to thos.e of Montana concur in their declaration of principles.

“'The leading case is that of Thomas v. Owens, 4 Md. 18&, which was decided in 1853 by the Court of Appeals, and the opinion was delivered by the profound jurist, iCtoief Justice LeGrand, after a thorough examination. Thomas was the Comptroller of the State, and applied for a writ of mandamus to be directed to Owens, the State Treasurer, commanding him to pay the amount of a draft drawn in payment of his salary. Owens refused payment on several grounds, including the following: ‘That no sufficient appropriation has been made by law specifying a sum applicable to the payment of the amount claimed by the petitioner.’ The gravity of the investigation, and the lucid reasoning of the court, induce us to be liberal in the use of excerpts. ‘The inquiry, then, is, Is there an appropriation for the period intervening between the 10th of December, 1851, — the time from which we think he is entitled to pay, — and the 1st day of January, 1852? We are of the opinion the Constitution, We are of opinion the Constitution, Under our system of government, its powers are wisely distributed to different departments. Each and all are subordinate to the Constitution, which creates and defines their limits. Whatever it commands is the supreme and uncontrollable law of the land. This is not denied directly, although it is inferentially, substantially, and practically. It is said that, inasmuch as the 20th section of the 3d article of the Constitution declares, “No money shall be drawn from the treasury of the state except in accordance with an appropriation made by law,” that an act of Assembly must precede the withdrawal ; and inasmuch as none such has been passed covering the period antecedent to the 1st of January, 1852, there is therefore no appropriation by law for that time. To this reasoning we cannot yield our consent. In the construction of any instrument, the whole paper ought to be considered, that the will of its framers may be truly and accurately ascertained. The objects contemplated, and the purposes to be subserved, should be constantly kept in. view, and the language used interpreted in reference to the manifest intent. Now. what could have been the purpose of the clause in the Constitution to which we have veferred? It was obviously inserted to prevent‘d the expenditure of the people’s treasure without their consent, either as expressed by themselves in the organic law, or by their representatives in constitutional acts of legislation.’ * * *

“In assigning the powers of government to three different departments, the Constitution intended to secure to each its inde-pendency of action; and, the more certainly and effectually to insure this, it has ascertained and appropriated the salary they are severally to receive, and it has inhibited the Legislature from diminishing it. Were it not for such a provision, the whole government would exist only by permission of the Legislature. It can only be carried on through the instrumentality of individuals, and their services can only be obtained by being paid for. The framers of the Constitution, and the people who adopted it. aware of this, determined not to submit the durability of their work to the caprice, passion or prejudice which possibly might, at times of great excitement, triumphantly rule the action of the Legislature, and therefore wisely did the work themselves, by ingraft-ing in the organic law a provision for the protection of those who should be charged with its execution. In other words, they made the appropriation. An opposite interpretation would countenance this paradox; that a co-ordinate branch of the government could stop its whole machinery, by refusing to pay the salaries of those upon whom is devolved the discharge of the duties of the other branches; and this, too, when the Constitution expressly declares that these officers ‘shall receive’ their salaries, and that they ‘shall not be diminished.’ • ‘It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It. is prescribing limits, and declaring that those limits may be passed at pleasure.’ Marbury v. Madison 1 Cranch [5 U. S.] 137, 178 [ 2 L. Ed. 60, 73]. Now, it is presumed it would not be contended by anyone, however hazardous, that if the Legislature were to pass an act diminishing the salary of 'the Governor, or of any other officer whose salary is fixed by the Constitution, that such an exercise of power would be rightful and constitutional. If it be not competent to the Legislature to take away a part, by what process of reasoning can it be maintained that they can take away the whole? And yet this'is the extent to which the argument addressed to us goes. It seems to us to be but necessary to state the proposition to cause its instantaneous rejection. We hold, for the reasons we have assigned, the people have given their consent to the payment of the salaries fixed in the Constitution, by declaring the amount ‘shall’ be ‘received’ by the particular officer; and that this is an appro-nriation by law, — by the supreme law of the state.

“The case of Thomas v. Owens, supra, is commented on in Green v, Purnell, 12 Md. 333, and the court said: ‘There, the petition asked for a mandamus requiring the treasurer of the state to pay the Comptroller, upon his warrant, the amount of his salary, whch is regulated by the Constitution, and, of course, duly appropriated by law.’

“In State v. Weston, 4 Neb. 216, the ‘case raises the question of the authority of the State Auditor to draw warrants upon the State Treasurer for the payment of the salaries of the state officers when no appropriation therefor has been made by the Legislature.’ The Constitution of that state provides that ‘no money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.’ if this clause,’ says Chief Justice Lake, ‘had limited the appropriation which it requires to an act of tlie Legislature, there might be some force in the objection urged. Bui;,it only requires a specific appropriation “made by law,” and we are 'dearly of the opinion that this may be accomplished just as effectually by the Constitution as by legislative enactment.’ The court further says: ‘In the case of Reynolds v. Taylor, 43 Ala. 420, it was held that if the salary of a public officer is fixed, and the times of payment prescribed, by law, no special annual appropriation is necessary to authorize the auditor to draw his warrant for its payment. But the case of Thomas v. Owens, 4 Md. 189, seems to be more directly in point. It was there held that when the Constitution declared the amount to be paid an officer, that it was an appropriation made by law, and no legislative act was necessary.’

“In State v. Weston, 6 Neb. 16, the court explains the decision in State v. Weston, supra, and asserts that ‘it reaches only those officers who hold by virtue of the Constitution itself, and not to those who hold their offices at the will of the Legislature’ ; and the ‘appropriation made by law * * * may be done either by direction of the Constitution itself — that being the supreme law in the state — or by the Legislature.’

“We do not know of any rule to the contrary where the same constitutional provisions exist which are embodied in the supreme law of this state. An illustration of the principles which are applied where salaries of the officers are not prescribed by the Constitution, and the case of Thomas v. Owens, supra, is not followed, may be found in Myers v. English, 9 Cal. 348. This was an application for a writ of mandamus to compel the State Treasurer to pay certain warrants drawn by the Comptrolier on account of the salary of a district judge. The Constitution provided that the judges of the district court shall severally, at stated times during their continuation in office, receive for their services a compensation, to be paid out of the treasury, which shall not be increased or diminished during the term fm- whVh thev shall have been elected. Article 6. sec. 15.

“Another clause is the following: ‘No money shall be drawn from the treasury but in consequence of appropriations made by law.’ Article 4, sec. 23.

“It was correctly held by the court that it was necessary for the Legislature to define the amount of the salary, and make an appropriation for the payment thereof, before this remedy could be enforced. This view of the Constitution of a state has been adopted by the Supreme Court of the United States, in construing the clause of the federal Constitution which declares that no state shall pass any ‘law impairing the obligation of contracts.’

“Mr. Justice Swayne in Mississippi & M. R. Co. v. McClure, 71 U. S. (10 Wall.) 515 (19 L. Ed. 998), asserts that ‘the Constitution of a state is undoubtedly a law, within the meaning of this prohibition.’ * * *

“We cannot add anything to the discussion of this vital proposition. The doctrines which were announced in Thomas v. Owens, supra, have been accepted for years without a question, and have remained inflexible under every test. The framers of 'the Constitution of this staibe numbered upon their roll most eminent jurists and lawyers. They studied with wisdom and ability the charters which the people had granted to the states of the Union, in their efforts to obtain the best articles from all. They knew the precedents which have been enumerated, and the canons of interpretation which had been formulated by the courts, and deliberately created the sections of the Constitution which fix the salaries of many state officers.” State of Montana ex rel. Rotwitt v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403-405.

The existence of the rule has been recognized by this court. In the case of Menefee v. Askew, 25 Okla. 623, 107 P. 159, Williams, J., speaking for the court, said:

“The following authorities suppoiit 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 * * * 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. (Citing cases).

“The foregoing rule is criticized and not followed in the cases of Myers v. English, 9 Cal. 341; Pickle v. Finley, 91 Tex. 484, 44 S. W. 480; Shattuck v. Kincaid, 31 Ore. 379, 49 P. 758; Kingsbury v. Anderson, 5 Idaho, 771, 51 P. 744.”

And quoted liberally from the case of Pickle v. Finley, supra. It is contended that Menefee v. Askew, supra, is a denial of the rule with respect to constitutional officers. Not so. In that case the court dealt with an officer created by the Legislature, to wit, the State Game Warden, not with a constitutional officer and not with a constitutional provision for compensation. The court, moreover, held that the act creating the office, providing for the salaries of the officers named, and the times and manner of their payment, was an appropriation by law, and that such appropriation was limited only by the two and one-half year provision of section 55, art. 5, of the Constitution. The court based its holding as to the limitation in part on the reasoning found in Pickle v. Finley, supra, and to that extent only can the Texas case be said to have approval. The salary or emoluments of a constitutonal officer were not involved and no constitutional provision respecting the same was under consideration. It cannot be said that the court departed from the issues involved to commit this state to a rejection of the rule as applied to constitutional officers when no such matters were then before the court for decision. The case of Pickle v. Finley, supra, also dealt with an office created by the Legislature and not with a constitutional officer. Let it be here noted that the Texas Constitution carries no such provision as section 10, art. 23, hut that a provision to that effect is found in the Texas statutory law. Revised Civil Statutes, 1911, lit. 120, ch .5. art. 7086. Further, the Supreme Court of Texas in the case of Lightfoot v. Lane, 140 S. W. 89, calls particular attention to the fact that the Pickle Case did not involve a constitutional officer and, for that reason, was not authority in a case which did involve one.

The ease of Myers v. English, supra, often cited as contrary to the rule announced in the Hickman Case, is harmonized with the rule by the court in State v. Hickman, supra, and in the more recent case of Humbert v. Dunn, 84 Cal. 57, 24 p. 111, the California court seems not to follow in all strictness the Myers Case. The case of Kingsbury v. Anderson, supra, deals with a statutory provision empowering the State Auditor to employ counsel, and providing that the expenses of such employment must be paid out of the territorial treasury. Here again a constitutional officer and his compensation are not involved, and when the Idaho court deals with a constitutional officer in the case of Reed v. Huston, 24 Idaho, 26, 132 P. 109, Ann. Cas. 1915A, 1237, it approves the rule stated in State v. Hickman, supra, and cites that case as authority. In the Oregon ease cited, Shattuck v. Kincaid, supra, the salaries of judges of the circuit courts were involved. The salaries of these officers were fixed by statute stating the amount and times of payment. Upon a mandamus against the Secretary of State to compel payment, that officer interposed the plea that no appropriation had been made by the Legislature. The court denied the plea and directed the mandamus to issue. In the opinion the court said:

■‘It is maintained by some authorities that constitutional provisions fixing the salaries of state officers proprio vigore make an appropriation out of the treasury for the payment of the same as they become due, and this upon the ground that such salaries have become fixed and unchangeable by any power vested in the Legislature, and that to withhold the funds necessary to their payment would be subversive of the will of the people as expressed by the organic law. It is said, arguendo, that if the Legislature is without power to reduce the salaries of such officers, it cannot be affirmed that it may take away the whole by withholding the funds requisite to their payment. In support of this view Thomas v. Owens, 4 Md. 189, * * * is perhaps the leading ease. It has been followed in State v. Hickman, supra. * * * Other cases apply the principle to legislation under Constitutions which provide that salaries of state officers shall neither be increased nor diminished during the terms for which they shall have been appointed or elected. It is maintained by these that the law fixing such salaries becomes immutable in so far as it may affect incumbents, and that the Legislature is powerless to cut off by indirection that which it could not do by direct enactment, and hence, that a statute merely fixing the amount to be received and the times of payment is, in effect, an appropriation of funds which become applicable to the discharge of their skated compensation as it becomes due. And we may say the very decided tendency of recent adjudications is in support of this advancement upon the doctrine.”

And upon this matter, after some further discussion, the court said:

“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 bv 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.” (Emphasis ours.)

So, in our opinion, the Oregon court has refused to state, in that decision, what the correct rule is where the salary is fixed by the Constitution, or where it is by that instrument rendered unchangeable during in-cumlbency, followed by legislation simply fixing the amount and times of payment. Suffice it to say that the court did direct the writ to issue commanding the defendant to draw the warrant in that case. From this examination of the cases cited in Menefee v. Askew, supra, we think it is clear that it was not intended in that case to deny any such rule as applied to constitutional officers and their compensation.

Further recognition of the rule as applied to constitutional officers is given in Meyer v. Clift, 31 Okla. 793, 123 P. 1042, where Hayes, J., speaking for the court, said:

“The facts of this case do not bring it within the rule of the class of cases holding that, where an office is created and its salary fixed by a constitutional provision no appropriation by legislative act is necessary to authorize the payment of the salary, to which belong the following: Thomas v. Owens, 4 Md. 189, State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403; State v. Weston, 4 Neb 216 The Constitution contains no provision creating the position of court stenographer. Such office exists and its salary is fixed by virtue of a legislative act.”

The authors of the opinions in Menefee v. Askew, supra, and Meyer v. Clift, supra, were members of the Constitutional Convention, and the opinions were filed but a short time after the adoption of the Constitution. For these reasons, the opinions are rightfully entitled to great weight in the construction of constitutional provisions, but, to my mind, neither of them is susceptible of the construction sought to be placed upon them, that of denying the rule announced in Thomas v. Owens, supra.

It is said that the limitation of two and one-half years for the expenditure of appropriations contained in section 55, art. 5, Constitution, must be applied even though it be held that there exists a constitutional appropriation. That does not appear to be the rule. At the time of the rendition of State v. Hickman, supra, the Constitution of Montana contained a two-year limitation upon such expenditures “No appropriations of public moneys shall be made for a longer term than two years.” Section 12, art. 12, Const. 1889.

And the Constitution of Nebraska (art. 3, sec. 22) contained the following provision:

“Each Legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with such fiscal quarter.”

The rule is stated in 59 C. J. 259, as follows:

“Constitutional time limits on the life of appropriations do not apply to such appropriations as are made by the Constitution itself, even though the amount of the appropriation is fixed by statute; nor to such appropriations as are expressly authorized and vested with a peculiar status and character by the Constitution.”

Supporting this text are cited the eases of Weston v. Herdman, 64 Neb. 24, 89 N. W. 384, and City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S. W. 818. Further support to this rule is found in the cases of Dickinson v. Edmondson, 120 Ark. 80, 178 S. W. 930, Ann. Cas. 1917C, 913, and Borden v. Board of Education, 168 La. 1005, 123 So. 655, 67 A. L. R. 1183. These cases seem to proceed upon the theory that the eolnstitutional provisions under discussion are self-executing. And see Anderson v. Whatcom County (Wash.) 45 P. 665. It can hardly be questioned that the provisions of section 10, art. 23, of our Constitution are self-executing.

“A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Cooley, Const. Lim. (7th Ed.) 121.

That authority gives as an example of self-executing provisions the 15th Amendment to the Constitution of the United States:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on .account of race, color, or previous condition of servitude.”

It cannot be denied that had the Legislature attempted to increase the salary of relator during his term of office, section 10, art. 23, would have effectually prevented the payment of such an increase at the suit of any taxpayer without the necessity of supplemental legislation. If the provision is self-executing as to an unconstitutional increase of compensation, can a simi lar status be denied it as to tbe proposed unconstitutional decrease?

It may be said that provision for salaries of Justices of the Supreme Court being fixed by a provision of the Schedule, it is not properly a part of the Constitution- We deem the case of State v. Carter, 77 Okla. 28, 186 P. 454, a sufficient answer. It is clear that the framers of the Constitution intended that the constitutional officers named in sections 15 and 16, art. 25 (Schedule), receive compensation for their services; that such compensation should be and remain in the amounts therein stated until changed by the Legislature; that the authority given the Legislature was solely and only that of varying the amount of such compensation within the limits of section 10, art. 23. (State v. Carter, supra.) That intention is brought into strong relief by section 17, art. 25, which leaves entirely to legislative discretion the compensation of the constitutional officers there named. Bohart v. Anderson, 24 Okla. 82, 103 P. 742, Ann. Cas. 142.

The Constitution, constituting the paramount law of this state, delegated to the Legislature the exclusive power to make appropriations, and it would be asserting an absurdity to state that the people by their Constitution made a valid delegation of a power that they themselves did not possess. Clearly the people had the right to make an appropriation in the Constitution. It is true that Justice Williams, speaking for the court, in the case of Mene-fee v. Askew, supra, in defining an- appropriation used the language, “an appropriation in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum. from a designated fund out of the treasury in a given year, for a specified object or demand against the state,” but clearly he did not intend to say that no appropriation could be made in this state except by the Legislature. It is an established rule of construction that language used in a judicial opinion is to be interpreted in the light of the facts with which the court was dealing. As was said by Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257, “General expressions in every opinion are to be taken in connection with the case in which those expressions are used.” In using the language in the Menefee Case, the court had before it the question as to whether the language used in an act of the Legislature constituted an appropriation, and the only question before the court at the time the quoted language was used by Justice Williams was, Does the language used in an act of the Legislature constitute an appropriation? and he was in no manner discussing or deciding the question as to whether words used in (the Constitution could constitute -an appropriation. This is made clear by an opinion of this court rendered shortly thereafter, this opinion also being written by Justice Williams. We refer to the case of Betts v. Commissioner of the Land Office, 27 Okla. 64, 110 P. 766. One of the questions in that case was the authority of the Commissioners of the Land Office to withdraw from the state treasury funds derived from the leasing of school lands for the purpose of investment in the absence of an appropriation having first been made by the Legislature. In discussing this question, at page 81 of said opinion, it is 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.”

Clearly this language is susceptible of but one construction, and that is, that an appropriation may be made in the Constitution, and that appropriations contained in the Constitution may be continuing even though the Legislature be prohibited from making continuing appropriations. Limitations contained in a Constitution are denying to the delegated authority the right to use the full power possessed by the people in their sovereign capacity, and by what line of reasoning can it be said that it is sought, to limit the exercise of a power conferred when the conferring body itself possessed no such power? In the case last above quoted, this court further held that the interest and income of the permanent school fund, the net income from the leasing of lands for the use and benefit of the common schools, might. be apportioned among the several common school districts of the state and paid out of the state treasury to such districts without any specific appropriation having been made by the Legislature, section 3, article 11. of the Constitution authorizing such to be done. In other words, that section 3, article 11, of the Constitution is an appropriation made “by law” as required by section 55, art. 5, of the Constitution, and that the appropriation so made by section 3 is a continuing appropriation.

It must- further be borne in mind that this particular section of the' Constitution was taken from the Constitution of Alabama, and as early as 1833. in the case of Nichols v. Comptroller, 4 Stew. & P. 154, the Supreme Court of Alabama held:

“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.”

And later, in 1869. the Supreme Court of Alabama again had before it the same question in the case of Reynolds, Auditor, v. Taylor, 43 Ala. 420, and in said ease used the following language:

“He insists that the application of ap-pellee should be denied, because it is not shown that an appropriation had been made to pay his salary, as marshal, etc., at the sum claimed by him; but that appropriations had been made to 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. * * *”

Surely the framers of our Constitution were entirely familiar with this construction which had been placed upon the Constitution of Alabama as early as 1833, and it must be presumed that they adopted same in the light of this construction. It is true that the Constitution of Alabama did not contain the limitation as to the expenditure of the appropriations within a given time, but it does settle the question in that state that appropriations may be made in the Constitution, and it must be presumed by this court that the framers of the Constitution adopted this section from Alabama together with this settled construction thereof by the courts of Alabama, and clearly the cited cases from this court fully establish the rule, in this state, that an appropriation may be made in the Constitution, and that when same is so made it is not subject to the limitation contained in section 55, art. 5, of the Constitution, that “nor unless such payment be made within two and one-half years after the passage of such appropriation act,” and that this limitation applies only to appropriations made by the Legislature.

With these established principles in mind, we now pass to the question, Does the Constitution make an appropriation to pay the salary of petitioner? In determining this question it is necessary that we look to those provisions contained in the Constitution fixing the salary of the Justices of this court, and making provision for the payment of same. Section 15, art. 25 (Schedule), of the Constitution provides;

“Until otherwise provided by law, the officers of the state shall receive annually, as compensation for their services, the following sums: * * *”

This section, then, provides the salaries of various state officers. Section 16 of article 25 of the Constitution provides:

“The salary of the Justices of the Supreme Court of the state shall be four thousand dollars per annum, each, and that of the judges of the district court, three thousand dollars per annum, each, until changed by the Legislature.”

, From these two sections it is seen that the Constitution fixes, until changed by the Legislature, the salary of the Justices of this court, and provides that they shall receive same. Pursuant to the authority granted by the Constitution, the Legislature changed the salaries of the Justices of this court by chapter 273, S. L. 1929, p. 396, fixing the salary at $7,500 per year, payable monthly, and in now considering the words in the Constitution, we are to read the same as if the salary fixed by the Constitution was the sum of $7,500 per year, payable monthly, for the authorized acts of the Legislature as much express the will of the people as their expression as contained in the Constitution.

In construing the language used in the Constitution, we must consider the entire Constitution, the objects contemplated by its mandates, and the evils sought to be avoided by its limitations, and the language used given such construction, if possible, as will make effective the entire Constitution and carry out the manifest intention of the framers of the same and the people who adopted it. We have heretofore discussed the clearly manifest intention of the framers of our Constitution prohibiting the changing of the salary or emolument of a state officer during the tenure of his office, and the reasons leading to the inclusion in our Constitution of that section, limiting the withdrawal of state funds from the state treasury except in pursuance of an appro priation by law are too well known to require any extended discussion thereof. This court, in the case of Edwards v. Childers, 102 Okla. 158, 228 P. 472, reviews this question at length, and we think it may be said that the purpose of this provision in our Constitution was to prevent the withdrawal of the public funds from the state treasury except in pursuance of the expressed will of the people. This will may be expressed in the Constitution itself, or through the legislative branch of our government. Bearing in mind that our government consists of three separate and distinct departments, and that there is prohibited in the Constitution commingling of these essential parts of government in the same hands, each department is an exclusive trustee of the power vested in it and accountable to the people alone for the manner in which they exercise this power, and in the exercise of which they shall never be controlled by or subject to a coercive influence of either of the other departments, and while the three branches of government are co-ordinate in that sense that they each co-operate in the working of this government and the maintenance of a government according to the forms prescribed in the Constitution, yet each is entirely independent of the other in that sense that the judgment of each is to be exercised entirely independently of the influence of the other departments. Each is supreme in its own field, subject only to the limitations and commands imposed in the document creating them, and any language employed by the framers of our Constitution was most certainly used in an effort to keep inviolate the independence of the three branches of the government provided for, so that one might be a check upon the other. Bearing in mind these views, and the settled rules of construction applicable, Was it contemplated by the framers of our Constitution that power should exist in the legislative branch to strike down and make impotent the judicial branch of our government by simply withholding its appropriation? Was it intended by the iram-ers of our Constitution to vest power in the legislative branch of our government to make dependent the judicial branch by doing indirectly that which they were prohibited from doing directly, that is, power to reduce the compensation of the judges by withholding its appropriation for their salaries, or by appropriating an amount less than the Constitution, or the Legislature, in the. exercise of the right conferred by the Constitution, had said they should receive during their tenure of ofiBce? We do not hesitate to say that the language used by the framers of our Constitution was used with the intention that neither of the above conditions should exist, and we assert that it was the intention of the framers of the Constitution to make impossible and prohibit the existence of either of these conditions. To hold, otherwise would be to say that the framers of our Constitution intended to provide a system of government composed of three separate and independent branches, and in the same breath, so to speak, vest power in the legislative branch to destroy or make dependent the other two branches. Government can function only through individuals, and the services of individuals can only be obtained by paying for their services, and most surely it was never intended by the framers of our Constitution to vest power in the Legislature to create a condition where only those who possess sufficient moneys to forego the payment of their salary could administer the affairs of this state. To admit that the framers of-our Constitution and the people who adopted it intended to vest such power in the Legislature would be to- place the legislative branch of the government above the Constitution which created it, and to place power in the Legislature to annul and set aside the sovereign will of the people as expressed in their Constitution. We have been unable to find and our attention has not been called to any decision of any court which holds or intimates that it was the intention to vest in the Legislature such powers. Those cases which reach the conclusion that neither the Legislature nor the Constitution has made an appropriation do not bottom their decision upon the fact that the framers of the Constitution intended the placing of such power as we are here discussing in the Legislature, but upon the well-established principle that courts do not make laws, but simply interpret them, and that even though the Legislature or framers of the Constitution may have' intended to provide án appropriation, the courts are helpless to remedy the situation unless the language employed is susceptible of the construction that an appropriation has been made.

The Constitution of this state having by the provisions quoted and referred to herein fixed the salaries of the Justices of this court, and provided that same cannot be changed during the term of office, and provided further that they shall receive same, does this language amount to an appropriation made “by law”? In the case of Menefee, State Treasurer, v. Askew, supra, Justice Williams, speaking for the court, es tablished the rule of this state that no particular language or appropriate form of expression need be used to constitute an appropriation, and that the language used by the Legislature in the act then being considered constituted an appropriation. It will, therefore, be helpful to refer to the exact language used by the Legislature in the act then under consideration. The court was considering section S of article 6, chapter 19, Laws 1909, which reads as follows:

“The State Game and Pish Warden shall receive an annual salary of eighteen hundred ($1,800) dollars, and his actual and necessary traveling expenses, not to exceed, however, the sum of eight hundred ($800) dollars a year, to be paid monthly upon the filing of his itemized statement of such expenses duly sworn to. Such salary and expenses to be paid out of the game protection fund. Pie shall also be reimbursed for his actual and necessary office expenses, including expenses of catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses.”

It will be noted that no mention is made of an appropriation, no such language as “there is hereby appropriated” or phrase of like character is used. The act simply fixed the amount of the salary of the Warden, the manner of payment, and provided that he should receive same, and this court held that that language constituted an appropriation. Compare the language used in the legislative act then under consideration and that used in the Constitution and the Legislature in the applicable provisions cited herein and it will be found that they are almost identical. Certainly both provide the amount of compensation, the person to whom payable, the manner of payment, and provide that the officer shall receive same. Bearing in mind the settled rule of construction that constitutional provisions should receive a broader and more liberal construction than applies to statutes, for the reason that in the first instance you are dealing with original and unlimited power, and in the next with limited and delegated power, we hold that the language used in -the Constitution as herein set forth constitutes an appropriation to pay the salary of the petitioner in such sums and in such manner as the Legislature has provided. It has all the elements requisite to an appropriation. It fixed a sum certain, the amount payable at the time of his election, because same could not be changed during his tenure of office; to whom payable; the time of payment, this being fixed by thé Legislature in the exercise of a power granted; and in payment of a specific object. We further hold that, this being an appropriation made by the people in the Constitution, it constitutes a continuing appropriation and that the limitation contained in section 55, article 5, of our Constitution is not applicable to appropriations made in the Constitution itself.

This 'view is in accord with the firmly established rules of construction, as is said by Judge Cooley:

“The object of construction, as applied to a written Constitution, is to give eifect to the intent of the people in adopting it. But this intent is to be found in the instrument itself. It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part. The rule applicable here is, that effect is to be giv-em if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.” Cooley, Const. Lim. (7th Ed.) 89-91-92.

And in arriving at this conclusion, our way was lighted by article 4, Constitution of Oklahoma :

“Section-1. Legislative, Executive and Judicial. The powers of the government of the state of Oklahoma shall be divided into three separate departments : The legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments- of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”

We can reach no other conclusion than that the intent of the framers of our Constitution can only be carried into effect by the adopting of these conclusions.

We -are not unmindful that the Legislature faced an unparalleled economic emergency, and it is asserted the exigencies of that emergency required temporary measures be taken which, although constitutionally questionable in normal times, should not be disturbed on account of overriding necessity. To that view we cannot subscribe. The Constitution guarantees to the petitioner the compensation fixed by law to his office at the time of his election, and by so doing guaranteed to the people of this state a judicial system that would be entirely independent of the other two branches of government, and if this cardinal constitutional guaranty must yield to so-called economic necessity, is it less sacred than those provisions of our Constitution which guarantee to every accused the right of tria] by jury, that justice shall be administered without denial, delay, or prejudice; that no person shall be deprived of life, liberty, or property without due process of law; that all persons shall have the inherent right to life, liberty, and the pursuit of happiness and the enjoyment of the gains of their own industry? We think not. Each makes certain the enjoyment of the rights therein guaranteed, and we are totally unable to distinguish between constitutional guaranties so as to give effect to some during emergencies and deny effect to others.

For the reasons stated, the writ is granted as prayed.

■ SWINDALL, Special O. X, and CULLI-SON and ANDREWS, JX, and CHASE, BAILEY, and TRICE, Special JJ., concur. ROBINSON and CHESNUT, Special JJ., dissent. RILEY, C. X, and McNEILL, OSBORN, BAYLESS, BUSBY, and WELCH, JJ., having certified their disqualifications in the case, the-following were duly appointed and qualified as Special Justices: T. M. ROBINSON, W. A. CHASE, PRANK, M. BAILEY, V. R. BIGGERS, W. R. CHESTNUT, and A. W. TRICE.