State ex rel. McMaster v. Reeves

184 N.W. 1007, 44 S.D. 612, 1921 S.D. LEXIS 168

• Court: South Dakota Supreme Court
• Decided: October 27, 1921
• Docket: File No. 4980
• Status: Published

Opinions

PART I.

HAYES, P. J.

(after stating the facts as above). The relator petitions the court for a writ of prohibition to restrain the state Auditor from issuing warrants to the Attorney General in payment of his salary of $1,200 per annum, as a member of the State Securities Commission. Defendant demurs to the petition, and the issue raised relates to the validity of section No. 10127 of the Revised Code of 1919, as amended by section 1 of chapter 82 of the Laws of the Second Special Session of' 1920. The amendment is as follows:

“The Securities Commission, heretofore .created, whose duty it shall be to administer and provide for the enforcement of the provisions of this chapter, shall continue to consist of the Superintendent of Banks who shall be president thereof, the Attorney General, the Rural Credit Commissioner, all of whom' shall be members of such commission during their terms of office and one other member to be appointed by the Governor and who shall serve for a term of three (3) years,, unless sooner removed by the Governor. * * * The other members of said Commission shall be entitled to receive for their services, a salary of $1,200.00 per year, payable monthly as the salaries of other state officers are paid: Provided that any member of this Commission who receives $4,000.00 per annum or more as salary or compensation for his services in connection with any other state office, shall not be entitled to receive any additional compensation for services performed as a member of the State Securities Commission.”

It is contended by the relator that this statute, in providing payment of salary to the Attorney General for services as a member of the State Securities Commission, violates that part of section 2, art. 21, of the state Constitution wherein it is. declared that the Attorney General shall receive an annual salary of $i,ooo, and that certain state officers, including the Attorney General, “shall receive no fees or perquisites whatever for the performance of any duties connected with their office.”

[i] Sec. 13, art. 4, of the Constitution provides that the powers and duties of the Attorney General shall be as prescribed ■by law. The Legislature is prohibited by said section 2, Art. 21, of the Constitution from, paying to the Attorney General additional compensation for services which 'he may perform as the law officer of the state.

The legislative enactment in question must be sustained unless clearly in conflict with the constitutional provisions. The duties of the Attorney General at common law, as defined- by section 5364 of the Revised Code of 1919, and as universally understood are those which he may render the state in his professional capacity.

The section of -the Code referred to requires him to appear for the state and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme -Court, in which the state shall be interested or a party; to attend to all civil cases remanded by the Supreme Court to the circuit court, in which the state shall be a party or interested; to prosecute, at the request of the Governor, State Auditor, or State Treasurer any official bond or contract in which the state is interested, upon a breach thereof, and prosecute or defend for the state all actions, civil or criminal, relating to any matter connected with either of their departments; to consult with, advise, and exercise supervision- over the several state’s attorneys of the state in matters pertaining to the duties of their offices; to mail copies of certain opinions rendered by him to the executive accountant, state’s attorneys, and county auditors; to give opinions upon questions of law, when requested, •by the Legislature, or either branch thereof, or by the Governor, Auditor, Treasurer, or Superintendent of Public Instruction; to prepare contracts, forms, and other writings, which may be wanted for use of the state on request of the State Auditor, Treasurer, Superintendent of Public Instruction, or Commissioner of School and Public Lands; to report to the Legislature, or either branch thereof, upon any business relating to the duties of his office; and to prosecute state officers who neglect or refuse to pay into the state treasury public funds.

The Attorney General is a constitutional officer, the title designates him as the attorney for the state, and his duties, independent of the statute, are those of a law officer. This section of the Code in its specific enumeration of the functions of his office, recognizes the fact that the scope of his duties does not extend beyond law matters.

[2] The law imposes upon the Attorney General as a member of the Securities 'Commission the duties and responsibilities borne by the other members; that is, by the Superintendent of Banks and the Rural Credit Commissioner. The Securities Commission examines all statements and documents filed in its office by investment companies, conducts examinations, determines the character of stocks, bonds, and securities, contracts and plans of business of such companies, and on approval thereof may permit sales of stocks or other securities. These are not duties connected with the office of Attorney General, but are of an administrative character, and wholly foreign thereto.

[3] It is within the province of the Legislature to impose upon a constitutional officer duties separate and distinct from those of his office, and to provide compensation therefor in addition to his salary as a constitutional officer. In State v. Roddle, 12 S. D. 433, 81 N. W. 980, the Supreme Court of South Dakota has had occasion carefully to consider this question. In that case the Legislature had imposed upon the Secretary of State certain duties as a member of the brand and mark committee, and provided compensation therefor. As he was in receipt of an annual salary of $1,800, it was argued that this additional compensation constituted a violation of paragraph 2, art. 21, forbidding state officers from receiving any fees or perquisites for the performance of duties connected with their offices. The court said:

“We are clearly of the opinion that it was within the province of the Legislature to provide for a new officer to perform such duties, and the question arises whether in this instance it intended to do so. The language of the act is plain, its meaning is unmistakable, and there can be no doubt that the Legislature intended the person holding the office of Secretary of State to retain 20 per cent, of the brand fees as compensation for his services as a member of the brand and mark committee. Such act cannot be construed as adding new duties to the office of Secretary of State, because such construction would impute an intention on the part of the Legislature to violate the Constitution.”

This decision is reaffirmed in Burns v. Board of County Commisioners, 39 S. D. 426, 164 N. W. 1028. In this case the Supreme Court held that the constitutional provision affecting the salary of a county judge (section 30 of article 5) that he should receive no “compensation, perquisite or emoluments, for or on account of his office in any form, whatever, except such salary,” precluded retention of fees for services as a member of the county board of insanity. The constitutional provision considered in the Roddle Case (section 2, art. 21) forbade additional compensation to state officers for the performance of any duties connected with their office. The distinction in the constitutional provisions was recognized in the following language:

“There is a recognizable difference in meaning between fees ‘for the performance of any duties connected with their offices,’ as construed in the Roddle Case, and fees or compensation ‘for or on account of his office.’ The former prohibits extra compensation for the duties of the office; the latter prohibits extra compensation on account of, because of, or by reason of the office. The latter includes the former and prohibits extra compensation, not only for the duties of the office, but also extra compensation by reason of the office itself.”

In Love v. Baehr, 47 Cal. 364, it was held that, although the Constitution was wholly silent with respect to the duties to be performed by the Attorney General, and contained no expressed limitation on the part of the Legislature as to the nature of the duties it might impose upon him, yet a limitation on this power was necessarily implied from the nature of that office; and further, that the Legislature had no power to compel the Attorney General to perform the duties of a member of the Board of Examiners to examine and approve or reject claims against the state; but if such duties were imposed upon him by law, and h'e performed them, the Legislature might compensate him for this unofficial service by paying him a salary in addition to that which he received as Attorney General, even if the law allowing him such salary was passed during the term of office. In 'California the constitutional provision was that during the term of office the compensation of the Attorney General should not be increased or diminished, and that he should receive no fees for the performance of his official duties. The court said, in this California case, relative to the powers of the Legislature to impose duties upon the Attorney General not within the scope of his office:

“Some of these services [as member of the Board of Examiners] have not the slightest relation, even upon most liberal construction, to the duties of an Attorney General, as such duties were generally understood at the adoption of the state Constitution, as they were doubtless understood by the framers of that instrument. The business of counting money in the treasury, examining books of account, requiring the skill of an expert accountant rather than the professional learning of a lawyer, and the investment of public money in bonds, is wholly foreign to the duties of an attorney, and is no more cognate to them than the management of a state prison or lunatic asylum. The Legislature has no more power to compel the Attorney General to perform such service as a part of the-duties of his office than it has to compel the Superintendent of Public Instruction to take charge of the state prison, or to perform the duties of ¡State Gauger. The Attorney General is, therefore, under no obligation to perform such services, and he may decline to perform, them without any breach of his official duty as Attorney 'General. If, however, he voluntarily performs them, he does not thereby enlarge the scope of his official duties as a constitutional officer. By no compact between him and the Legislature can his official duties as 'Attorney General be extended beyond the limits contemplated by the Constitution.”

In Crosman v. Nightingill, 1 Nev. 323, the reasons for holding that a constitutional provision similar to that contained in paragraph 2, art. 21, of our State Constitution does not prohibit a constitutional officer from receiving compensation for performance of duties of a separate office, are -distinctly set forth, to-wit:

“The constitutional restriction imposed by section 9, art. 15, and section 33, Art. 4, is doubtless intended only to prevent the increase of salary or compensation of officers as such officers, or for duties naturally belonging to their positions, and can scarcely be extended to prevent the allowance of a compensation to officers upon whom duties or responsibilities in no' wise connected with their offices are imposed. * * * It would be putting a construction too restricted upon the constitutional limitation to hold that the provision which prohibits the increase of salary or compensation would prevent the holding of two offices by the same person, or the receipt of the salary of both by the same individual. We think the limitation in article 15, § 9, and article 4, § 33, should be confined to the increase of salary or compensation for the discharge of duties naturally belonging to a certain office, and should not prohibit compensation for the performance of other and independent duties in no wise belonging to it.”

In United States v. Saunders, 120 U. S. 126, 7 Sup. Ct. 467, 30 L. Ed. 594, it was held, referring to certain statutes precluding additional compensation for the performance of official duties:

“This legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to' render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of Congress or by order of the head of his department, or in any other mode, added to or connected with the regular duties of the place which he holds; but that the)' have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may' both be held by one person at the same time. .In the latter case, he is in the eye of the law two officers, or holds two places 01-appointments, the functions of which are separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations. In the former case, he performs the added duties under his appointment to a single place, and the statute has provided that he shall receive no additional compensation for that class of duties unless it is so provided by special legislation.”

In State ex rel. Chatterton v. Grant, 12 Wyo. 1, 14, 73 Pac. , 2 Ann. Cas. 382, it was held that the offices of Governor and Secretary of State were not incompatible, and that on the 'death of the Governor during his term of office a vacancy existed in such office to be filled by the Secretary of State, who was entitled to receive the salaries of both offices. In this state the constitutional provision fixed the salary of the Secretary of State: at $2,000, and prescribed that it should not be increased during the period for which he was elected. These rulings are further supported by Melone v. State, 51 Cal. 549; State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428; State v. Clausen, 111 Wash. 254, 190 Pac. 329; Detroit v. Redfield, 19 Mich. 376; State v. Vasaly, 98 Minn. 46, 107 N. W. 818; Dyche v. Davis, 92 Kan. 971, 142 Pac. 264; Howell v. La Grave, 23 Nev. 373, 48 Pac. 674; State ex rel. Walker, 97 Mo. 162, 10 S. W. 473.

[4] It is ably contended by counsel for plaintiff:

First. That chapter 127 of the Liaws of 1901 (now section 6965 of the Code of 19x9), making it unlawful “for any officer receiving a salary from the state to keep or retain any money, emolument, fee or perquisite, paid to or. recived by him for the performance of any duty or duties connected with his office, or in any manner paid to him as such officer or by reason of his holding such office, it being the true intent and meaning of this section that no officer reciving a salary from the state shall keep or retain any money, emolument, fee or perquisite paid to him by reason of his holding such- office, other than the annual salary payable to such officer as provided by the Constitution,” is of controlling force here.

Second. That chapter 319 of the Laws of 1913, creating the Securities Commission, consisting of certain constitutional officers, and providing for their service without additional compensation, demonstrates a legislative intent merely to add to the duties of those officers that of serving upon the Securities Commission, and not to create a new office.

Third. That the Attorney General’s duties as a member of the Securities Commission are germane to' his office, for the reason that many law questions, must necessarily come before that commission for solution.

It is sufficient to say that section 1 of chapter 82 of the Laws of the Special Session of 1920 is the later legislative enactment, and supersedes section 6965 of the Code; that the existing statutes prescribe for the Attorney General duties as a member of the Securities -Commission not within the scope of his constitutional office, and lawfuly provide a compensation for their discharge; that the fact that the Securities Commission may have legal problems to solve — may require legal advice — in no manner affects the general' character of its executive duties.

[5] We are of the opinion that the duties of the members of the 'Securities Commission are foreign to those of the Attorney General, not germane-to his office;'that the-act in question awards compensation for duties which are not connected with the office of Attorney General, and, as it does not award him additional compensation for any duty connected with his constitutional office, it is not in conflict with the constitutional provision limiting his recompense to $1,000 for services as law officer of the state. We are not at liberty to extend limitations found in section 2, Art. 21, to duties not connected with this office.

[6] It is a recognized fact, of which judicial cognizance may be taken, that when in 1889 the office of Attorney General was created, and the compensation fixed at $1,000 per annum, there were few duties to be performed; that now, with the growth and importance of public business, exclusive services of an officer of the highest skill and ability are demanded. The compensation is so grossly inadequate that it may truthfully be said that this officer serves the state not for pay, but out of a sense of public duty. This situation, however, is one which the courts are powerless to correct.

We must conclude from a careful examination of the statutory and constitutional provisions and the authorities that the Legislature, in creating the Securities Commission, imposed upon the Attorney General duties not germane to his office, and that, when it granted compensation, in addition to his constitutional salary, it granted it for services which he was not bound, as Attorney General, to perform, and for which he is not prohibited from receiving compensation..

The petition of the plaintiff for a writ of prohibition restraining the issue of salary warrants to the Attorney General is denied.