State ex rel. Polley v. Anderson

140 N.W. 736, 31 S.D. 261, 1913 S.D. LEXIS 129

Opinion

SMITH, J.

On February 14, 1913, Samuel C. Polley filed with the clerk of this court his petition for an alternative writ of mandamus, alleging tliat at the general election, in November, 1912, he was elected Judge of -the Supreme Court of South Dakota, from the First Supreme Court District, for a term of six years, beginning on the first Tuesday after the first Monday in January 1913, and ending on the first Tuesday after 'the first Monday in January, 1919; that on the 7th day of January, 1913, he filed his oath of office and qualified, and ever since has been and now is a duly elected, qualified, and acting Judge of the Supreme Court; that on the 8th day of February, 1913, he filed with 'the defendant, Henry B. Anderson, as State Auditor, itemized vouchers for payment of salary and expense account, in equal monthly installments, to-wit, $250 per month for salary, and $50 per month for expense account, and demanded that defendant issue to him warrants on the State Treasurer thereon; that defendant, as State Auditor, refused, and now refuses, to issue warrants for said sums of money, or any other sums, except a warrant for $195.17 for salary, and a warrant for $35183 for expense account; that plaintiff is without any plain, speedy, or adequate remedy in the ordinary form of law, and prays^ appropriate process commanding and reqqiring defendant to execute and deliver warrants as demanded, to wit, a salary warrant for $250, and expense account warrant for $50, for the month of January, 1913.

On the return day of the writ (February 19, 1913) defendant made return, alleging, first, that the petition should be dismissed for the reason that it appears, on 'the face of the writ and application therefor, that neither plaintiff nor relator is entitled to the relief demanded nor any relief whatever. Further answering the writ, ■ defendant alleges that on the 8th day of February, 1913, plaintiff presented to defendant, as State Auditor, two certain instruments, or vouchers, copies of which are attached, marked Exhibits A and B; that defendant, believing in good faith that plaintiff was neither entitled to receive a salary warrant for $250 for the month of January, 1913, nor an expense warrant for $50 for the month of January, 1913, declined to comply with plaintiff’s demand, for the reason that plaintiff’s term of office commenced at noon on the 7th day of January, 1913; that defendant was prompted by no other motive or desire except properly and lawfully to perform his duty as State Auditor; and that plaintiff was not and is not entitled to compensation as salary or expense for any period of time prior to noon, the 7th day of January, 1913. Defendant prays that the alternative writ be vacated and the proceeding dismissed.

The two vouchers attached and referred to in the return are as follows:

EXHIBIT A.

“Soüth Dakota, February 7th, 1913.

“The State of South Dakota, Dr'., to S. C. Polley, 1st District,

Office of Judge of Supreme Court.

“For salary only.

“Salary for January, 1913, $250.00.”

Back: “I hereby certify that the within account is just and true,’ and that no part of the same has been paid, and the same is hereby approved. S. C. Polley.

“Office of Judge of Supreme Court, First District.

“Received of the State Auditor warrant No. - for $250.00 in full payment of the within' account. - -.”

Exhibit B is identical in form, covering expense account for $50.

On the hearing both parties appeared by counsel and have filed briefs setting forth their respective contentions. It is conceded by counsel that Judge Corson, plaintiff’s predecessor, remained in office until the 7th day of January, 1913. It is also conceded that plaintiff’s actual tenure of office began upon his qualification on January 7, 1913. Section 2, art. 21, of the Constitution, is as follows: “The Judges of the Supreme Court shall each receive an annual salary of $2,500: Provided that 'the Legislature may after the year 1890, increase the annual salary of Judge of the Supreme Court -to $3,000.” Acting under the authority conferred by. this section of the Constitution, the Legislature by chapter no, Laws of 1901, increased the annual salary of the Judges of the Supreme Court to $3,000. Section 623, Political Code, 1903, .provided that each Judge of the Supreme Court should receive an annual salary of $3,000, payable quarterly. The time of payment of salaries was changed by section 43, c. 82, Laws of 1911, the general appropriation act, which provides as follows: “All amounts herein appropriated shall be used for the specific purpose herein mentioned and no other; and the State Auditor shall issue his warrants on certified itemized and approved vouchers filed in his office except that all items for salary shall be payable in equal monthly installments on certified vouchers filed in the office and approved by him, and the Auditor shall not issue warrants to or for any person, -department or institution in excess of the appropriation especially made therein, except as provided by- the provisions of this act, or may hereafter be provided by law.” Chapter 239, Laws of 1911, provides that the expense account shall be paid each month in $50 installments, upon certified vouchers, filed in the office of the State Auditor. Under these statutes, both salary and expense are payable in equal monthly installments.

[1] If must be conceded that the Legislature is without power to either increase or diminish any salary fixed by the Constitution. It must likewise be conceded that the Legislature is without power to authorize the payment of either salaries or expenses for any period of time not included within the term of office. Both the Constitution and the statutes provide that judges shall receive an annual salary. The Constitution does not fix either the time or mode of payment, but leaves both to legislative control. In fixing both time, and mode of payment, the Legislature may exercise its discretion to meet the financial convenience of the state and its officers. As we have seen the Legislature has exercised this discretion b.y providing that all items for salary of expense shall be paid within fiscal years, and upon vouchers, and in equal monthly installments. Plaintiff’s counsel bases his argument mainly upon the requirement of the statute that payment of salaries must be made in equal installments, and contends that it is the duty of the Auditor -to issue 12 warrants of $250 each, aggregating the annual salary of $3,000, and 12 warrants of $50 each for expenses, and that the official year and month, beginning January 7, 1913, control the payments, and that they are not controlled by the fiscal or calendar year. It is clear that plaintiff cannot be entitled to a warrant, either for salary or expenses, covering the period from January 1 to January 7, 1913, and in his brief he expressly disclaims any such contention. The Legislature must be deemed to have been cognizant of the law that a public officer can be paid for services and expenses incident thereto only during the period of actual official service, and at a rate computed upon the basis of the annual salary and expense allowance; whether.such service and expense extend over the whole or only a part of the official term; and we are clearly of- opinion that where thq law fixes an annual salary, and provides that it shall be paid in monthly installments, precisely the same rule of computation is applicable to monthly installments.

[2] We think it clear also that, under any view of these statutes, the Auditor cannot be compelled by mandamus to pay any officer a salary in advance of or before- official services have been rendered or expenses incurred. We do not understand plaintiff’s counsel to contend that the Auditor is without authority to split a payment on account of official salarjr or expense for.an)'year or month, or that it is his legal or official duty to issue in every instance a single warrant to one person for the full amount of a montlds salary and expense.

[3] The real contention of plaintiff is that the form of the voucher is immaterial, and that in this case the voucher should be construed as covering the official month from January 7th to February 8th. It needs no discussion to' show that the official duty of the Auditor as to pa3unent of claims against the state must be measured by the rules established by legislative enactment governing the time and mode of payment.

Section 43, c. 82, Laws of 1911- (the general appropriation bill) provides that all moneys therein appropriated shall be used for the specific purpose therein mentioned' and no other, and that payments out of such funds shall be made by warrants on certified, itemized, and approved vouchers filed in his office.

Section 309, Pol. Code, further provides: “That the fiscal year for the state shall commence on the xst day of July, and end on the 30th day of June in each year, and all reports required to be made annually to the Governor, shall be made to embrace the receipts, expenditures and business done during such fiscal year.”

All appropriations for payments of salaries and expenses are made specifically for each fiscal year; and all payments are required to be made out of the specific appropriations for the current fiscal year. No claim for salary, or expenses can be paid1Nout of an appropriation for any preceding or succeeding fiscal year. It must be’apparent, therefore, that plaintiff is in error in claiming, as he does in his brief, that “the annual salaries of the state officers are computed and paid with reference to the first day of the official year, and not wi-tli reference to the first day of the fiscal or calendar year,” because, while the right to the salary attaches at the time the officer legally enters upon the performance of Ids official duties, the payment of the salary is controlled by the appropriation'mád'e for the current fiscal year. It necessarily follows that the beginning and end of the fiscal year mark the time within which the Auditor must compute payments'of installments of salary.

Plaintiff’s argument in the reply ¡brief is that, as his incumbency of office began on the 7th day of January, 1913, a .payment of one-twelfth of the annual salary became due on February 8, 1913; i. e.; upon the expiration of the first official month. The contention is that it is immaterial, so' far as the issues in this case are concerned, whether the monthly payments are made at the end of the calendar month or at the end of the official month. Counsel might be correct in his view, if the official duties of the State Auditor were controlled by the subdivisions of the official year. But we think it plain that, in the performance'of his official duties, the Auditor’s acts are controlled by the monthly subdivisions of' the fiscal year. Plaintiff says in his brief: “No claim is made for pay for any time prior to the 7th day of January, 1913.” Iiis contention then is that monthly claims for salary accrue on the 8th day of each month. This contention would make it necessary to disregard the form of the voucher submitted to the Auditor in this case, and -to assume, as counsel says in his brief, that the form of the voucher is “of no significance whatever.” But we cannot agree with the view that the form of the voucher is immaterial. The law requires the Auditor to act upon vouchers; and the very purpose of a voucher is to advise the Auditor of the extent of the claim made. It is not the date of the presentation of the voucher which advises the Auditor, of the character and extent of the claim, but the language of the voucher itself. In this case, the voucher in express terms covered and claimed payment “for salary for January, 1913.” The -fact that it was presented on February 8th did not advise the Auditor that the .claim was for salary from January 7, 1913, to February 8, 1913; nor does the Auditor seem to have been so advised until the reply brief was filed in this case. ■But, if the voucher had been so framed as to claim payment from January 7th to February 8th, the question would still remain as to the duty of the Auditor to pay to plaintiff a full installment of $250 thereon.

The, fiscal year within which this payment must be made began July x 1912, and will.end June 30, 1913. ; If each, monthly period begins on,.the 7th'of the month, and the.monthly installment of salary becomes payable on the 8th. of the succeeding month, me last payment in the current fiscal year would mature on the 8th day of July, 1913. That portion of the salary covering,the period from July 1st to July 8th could not be paid out of the appropriation for the fiscal year ending June 30th; and the Auditor dould not be compelled to issue,-upon a voucher for the .month of June, a warrant payable out - of appropriations for two different fiscal years.

Calendar and fiscal years coincide in monthly subdivisions. The calendar year begins January 1st, while the fiscal year begins July xst. It follows that fiscal and calendar months are identical, and that the equal monthly payments'required by the statute are intended to cover the fiscal or calendar months. ' Hence we think it clear that the Auditor is required to adjust monthly payments so that they shall coincide with the actual periods of official service in calendar months of the fiscal year. This could only be accomplished in this case by payment, upon a separate voucher, covering the period between January 7th and January 31st. The Auditor cannot -pay upon any voucher 'except .from a current available appropriation. Therefore, on the 8th day of July, 1913, it would be necessary for plaintiff to present a separate voucher covering that portion of the new fiscal year between July 1 and July 8, 1913. It seems plain, having, in mind the method of- making specific appropriations, that the legislature did not intend that a single monthly voucher should cover portions of two months, but- that the voucher or vouchers, for the equal installments of salary, should cover a whole fiscal or calendar month within which official services were rendered , by one or more persons. The statute does not require the entire “equal installment” for any fiscal month to be paid to one person, unless the official services of that person have extended through the entire month. The annual monthly installment is appropriated for the office and not for the officer. For example, one “equal installment”, of $250 salary must be.paid by the state, for the whole fiscal month of January, - to the person or persons who filled the office of supreme judge during that month. Two persons might have filled that office during that month, but each would be entitled only to such proportion of the installment as his period of service bears to the entire month, and each would be entitled to a warrant upon a voucher, covering and showing what part of the month he had performed such official service. In other words, the statutory requirement that payments of annual salaries shall be made in equal monthly installments is equivalent to a specific appropriation of a fixed sum for each fiscal or- calendar month, out of which all official services during any one fiscal month shall be paid whether the services be performed by one or more persons who may happen to fill the office during' that month. The importance of the form and contents of a voucher thus becomes apparent. In view of the division of the annual appropriation into specific monthly appropriations, in legal effect, salary vouchers can be paid only out of the installment appropriated for the month during which the service is performed, and cannot be made payable in part out of installments for two distinct months. It follows that in the case'at bar the voucher presented by plaintiff must be paid out of the installment of $250 for the month 0 E J anuary, 1913, in proportion to plaintiff’s incumbency during that month, to wit, from, January 7th to January 31st, and that no part of the installment for February, 1913, could be paid on this voucher, or even upon a voucher covering the whole period from January 7th to February 8th, constituting the official month as claimed’ by plaintiff.

At the hearing, plaintiff’s counsel cited United States v. Dickson, 15 Pet. 141, 10 L. Ed. 689, as an authority sustaining his contention. On the contrary, -we are entirely clear that this decision sustains our views. In summing the discussion in that case, Justice Story says: “The object of the act of 1818 manfestly is to provide a suitable compensation for the receivers and registers of public moneys for the public lands. ' The compensation is for services to be rendered by them, officially, during their continuance in office; and up to a certain point, at least, it is in exact proportion to the extent and duration of -those services, and the responsibility incurred thereby. The compensation is. measured by years. It is to be by an annual'salary, and by a commission n-ot exceeding an 'annual amount. The words are that ‘they shall receive an annual salary of $500 each.’ , The natural interpretation of these words certainly is that the salary is to commence at the time when the service is to commence, and that they are to be. contemporaneous with each other. We believe this to be the uniform interpretation of all laws of this sort, and that, when any person takes office in an intermediate time between one quarter and another, the practice is to pay him a proportion of the quarter’s salary accordingly, and, if he leaves office before the end of his official year, to pay him for the like proportion of the last quarter.”

The same view is expressed in Dillon v. Bicknell, 116 Cal. 111, 47 Pac. 937. That case involved the salary of the district attorney, which was fixed by law at $4,000 per annum, and was paid in monthly installments, of $333.33 1-3 per month by warrants drawn upon the defendant, county treasurer. Plaintiff claimed that he had served five days more than two official years, and demanded that defendant, as auditor, issue a warrant on the county treasurer for salaiy for these five days, amounting to $54.50. The auditor had refused to issue the warrant, and the court below had rendered judgment directing a peremptory writ. From this judgment, tlie appeal was taken. The judgment appealed from was affirmed. In concluding the opinion, the court says: “Indeed, under the statute fixing the commencement and termination of the terms of county officers, it can never happen that the 'term consists of precisely two years, it being sometimes more and sometimes less; and therefore the provision fixing the compensation at an annual sum should -be construed as fixing the rate of compensation to be paid for the time the officer actually serves. This construction will do exact justice between the preceding and succeeding officers, and not increase the burden to be borne by the people.” The case is very analogous to the case at bar in its facts, and the legal' reasoning sustains our views. • The conclusion reached is ^identical with that announced in United States v. Dickson, ■ supra.

Allusion is made in plaintiff’s brief to the custom of the Auditor’s department in paying annual salaries of state officers in monthly installments measured by the official year. It is suggested,. but not shown, that such payments have not been made in accordance with the calendar year, but according to the official month and year; and it is urged that the principle of contemporaneous exposition and usage should be given weight. The same proposition was urged in the cast of United States v. Dixon, supra. In that case the court said: “It has also been argued that th'e uniform construction given to the act of 1818, ever-since its passage, by the Treasury Department, has been -that the act has reference to the fiscal year. The construction so given by the Treasury Department to any law affecting its arrangements and concerns- is certainly entitled to great respect. Still, however, if it is not in conformity to the true intendment and provisions of the law, it cannot be permitted to conclude 'the judgment of a court of justice. * * * If is not to be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it, by the Constitution, the solemn duty to interpret the laws in the last resort; and however disagreeable that duty may be, in cases where its own judgment shall differ from that of* other high functionaries, it is not at' liberty to surrender or to waive it.”

We think, however, that such considerations have no application to thé case before us, for the reason that the interpretation of the law urged by the Auditor is not adverse to, but in accordance with, the views entertained by the court in this case. We are or opinion the Auditor was right in his contention that it was not his duty to issue a warrant for $250 salary and $50 expense on a voucher covering the month of January, 1913, and that it was his duty to issue warrants, on the voucher presented, only for that portion of the month during which the plaintiff was actually in, office.

The peremptory writ must be denied, and the proceeding dismissed, but without costs to either party.

POLLEY and GATES', JJ., not- sitting!