Hard v. State Ex Rel. Baker

BOULDIN, Justice. The question presented by the present record may toe briefly stated thus: In April, 1930; the state committee of public health elected Dr. J. N. Baker as state health officer with a‘term of office of five years, and at a salary of $7,500 per annum, which action was ratified by the state board of health. Later, October, 1932, owing to the straitened economic conditions, the salary was, by mutual agreement between the state health officer and state board of health, reduced to $5,250 per annum. At the time of such election, the state board of health entered into a contract to pay him the stipulated salary for the period of five years. Dr. Baker has faithfully performed the duties of state health officer to this date. By an act approved April 14, 1933 (Gen. Acts 1933 [Ex. Sess.] p. 124), known as the Lapsley-Lusk Bill, making sweeping reductions in the salaries of the officers and employees of the state and its several departments, the salary of the state health officer was fixed at $3,600 per annum. The state comptroller, following this statute, declined to issue a warrant for the salary of the state health officer for the months ■of May, June, July, August, and September on the basis theretofore fixed by the state board of health. The present proceeding by mandamus was brought by the state health officer, upon approval or direction of the state committee of public health, acting for the state board of health, to test whether the salary of the state health officer is that fixed by the state board of health or that fixed by legislative act. On the one hand, it is insisted such salary is fixed toy contract made by the state, through a duly authorized state agency; that the act of the Legislature is in violation of article 1, § 10, of the Federal Constitution, ordaining: “No State shall * * * pass *519 any * * * Law impairing the Obligation of Contracts”; -and in violation of sections. 22 and 95 of the Constitution of Alabama to the same effect; and therefore the act in so far as it affects the salary of the state ■health officer during his present term is null and void. The salary for the month of September, 1933, being included, the result of such contention is to take the salary of the state health officer without the influence of the Sparks Amendment. On the other hand, it is insisted the legislative act in question is within the sovereign power of the state over state agencies of its own creation for governmental purposes; that the state board of health, vested by legislative act with the power to elect a state health officer, fix a term of office, and fix his salary, within a statutory limit, is not vested with the power to make the term of office, or the salary, a matter of contract beyond the control of the Legislature; that legislative control over state agencies of its own creation and control over disbursement- of . public funds of its own appropriation for such governmental purpose is supreme. This statement of the issues involved’ is sufficient to disclose their grave import. Our system of laws, enacted under the police power, for the promotion of safeguarding of the public health, as 'they now exist, have been the outgrowth of legislation for more than half a century. Besides numerous acts dealing with special matters, there have been numerous compilations, such as the act .of 1903 (Gen. Acts 1903, p. 499); the Code óf 1907, § 698 et seq.; Act of 1919 (Gen. Acts 1919, p. 909); the Code of 1923, § 1046 et seq., and finally Michie’s Code, § 1046 et seq., incorporating acts of the 1927 session. This legislative agency or set-up for the-administration and enforcement of public health laws is somewhat original in legislative concept. Broadly speaking, this important public service is committed to the organized medical profession of the state. Thus section 1 of the act of 1903, now abridged as section 1046 of the Code, read: “The Medical Association of the State of Alabama, organized in accordance with the" provisions of the Constitution adopted- at the.annual meeting of the Association, held at Tuscaloosa in March, 1S73, and confirmed by' an act -of the General Assembly, approved February 19, 1875, is hereby constituted the State Board of Health.” By the act of 1919, the state board of censors, of the State Medical Association, as then or thereafter constituted by law, was made the state committee of public health. Code, § 1047. That the health department might function throughout the year, when the state board of health (State Medical Association acting as such) was not in session, it is enacted that at such times the state committee of public health (board of censors acting as such) shall act for the state board of health, and have all the prerogatives of such board, including the power to make rules and regulations; and, when the committee is not in session, the state health officer shall act for said board and committee; his action (when revocable in nature) being subject to revocation by such board or committee. Code, § 1048. Code, § 1053, as amended by the act of 1927 (Gen. Acts 1927, pp. 39, 40), reads: “State Health Officer; Election; His Duties and Powers. The State Board of Health shall elect an executive officer to be known as the State Health Officer, and shall fix his term of office and salary, provided that the latter shall not exceed seven -thousand five hundred dollars per annum. The State Health Officer so elected shall, under the direction of the State Board of Health, exercise general supervision over county boards of health and county and municipal health officers, and shall promptly report to said county boards of health any delinquencies of official duty on the part of said county and municipal health officers, which may come to his knowledge; shall keep himself informed in regard to all infectious, contagious, and pestilential diseases, which may -be in danger of invading the State, and shall, so far as authorized by law, take prompt measures to prevent such invasion; shall keep the Governor informed as to the health conditions prevailing in the State, especially as to outbreaks of any of the diseases enumerated in Section 1092 of this Code, and shall submit to the Governor such recommendations as he deems proper to control such outbreaks.” Besides the duties and powers thus imposed and conferred by law on the state health officer, we note the following: He appoints all subordinate officers and employees in the administration of the public health and quarantine laws, subject to the approval of the state board or county boards of health in their respective jurisdictions. Code, § 1150. He is designated as the officer to whom *520 county health officers shall report infectious diseases. Code, § 1038 (as amended hy Gen. Acts 1927, p. 775). lie may remove county health officers for failure of duty, subject to a right of appeal to the state committee of public health. Code, § 1032, subd. (5). lie has supervision over county quarantine officers. Code, § 1003, as amended by Gen. Acts 1927, p. 102. When quarantine has been proclaimed, he may amend the regulations as occasion demands, increase or decrease the quarantine area, subject to approval of the state board of health. Code, § 1210. The annual appropriation from the state treasury for the general use of the state board of health “shall be paid to the state health officer on his requisition approved by the governor.” Code, § 1159. The state board of health is the supreme supervisory power in this governmental unit, the state health department. It has jurisdiction and authority “to exercise general control over the enforcement of the laws relating to public health,” detailed largely in Code, § 1051 (as amended by Gen. Acts 1927, p. 774), and further elaborated throughout the chapter on Health and Quarantine. We have something of a federated system with county boards of health and county health officers, with defined powers and duties, subject to the supervision and control of the state board of health. Code, §§ 1049,1052, 1055, and § 1058, as amended by Gen. Acts 1927, p. 775. In Parke v. Bradley, 204 Ala. 455, 86 So. 28, the entire system was attacked as unconstitutional, upon the ground of an attempted delegation of legislative powers to a private corporation, the State Medical Association. This court, in a clear and well-considered opinion, by Justice Somerville, traced the legislative history and defined the legal status of the state board of health. It was held that no governmental functions are conferred upon the State Medical Association, as a private corporation, but, taking a ready-made organization composed of men best fitted by professional learning and experience to deal with matters of public health, the law converted the association into a state board of health, a public agency, to which was committed statutory duties and powers in the premises. Dealing directly with the question whether the Legislature had sought to delegate legislative powers to the state board of health, as a public agency, the court there said: “Its powers are purely executive and administrative, except that under subdivision (6) it is authorized ‘to adopt and promulgate rules and regulations providing proper methods and details for administering the health and sanitary laws of the state, which rules and regulations shall have the force and effect of law, and shall be executed and enforced by the same courts, bodies, officials, agents and employees as in the case,of the health laws.’ ” Parke v. Bradley, 204 Ala. 455, 458, 86 So. 28, 30. This power to make administrative rules and regulations in aid of the enforcement of the law, and given vitality by the law, was held, as in many other cases, not a delegation of legislative power forbidden by the Constitution. This quasi legislative power to make rules and regulations was further considered and given application in Wheeler v. River Falls Power Co., 215 Ala. 655, 111 So. 907. It appearing, therefore, that the functions of the state board of health are executive and administrative, and its rule-making power directed to the same ends, the reason for an executive officer through whom it can function is not far to seek; hence a state health officer, expressly so named, and declared to be an executive officer; elected by the board composed of men best informed as to his fitness for the highly specialized professional duties in hand, such officer being taken, if desired, from their own group, a member of the State Medical Association, made by law the state board of health. The state health officer is therefore the executive officer of a governmental agency engaged in executive functions, the execution of laws and regulations for the protection of the public health; his duties and powers defined and conferred by law. He is part and parcel of the governmental set-up, the active salaried man of greatest responsibility, through and by whom the whole organization functions in large measure over the entire state. With this clear and obvious concept of the status of the state health officer, we come to consider the nonimpairment contract clause of the Federal Constitution and its application to his salary. In the first place, we note this clause is an absolute inhibition against state laws that impair the obligation of contracts which are lawful, and to which it is applicable. It applies to contracts made by the state, or its au *521 thorized agencies, the same as contracts between private parties. Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302; 12 C. J. p. 996, § 60S. Tt strikes down state constitutional as well as statutory provisions which impair existing ¿ontracts. Los Angeles v. Los Angeles City Water Co., 177 U. S. 558, 20 S. Ct. 736, 44 L. Ed. 886; 12 C. J. p. 9S8, §§ 595, 596. It applies, not only to laws modifying-the terms of a contract so as to adversely affect vested rights thereunder, but to laws which have the effect of abrogating or annulling the contract. The. annulment of such a contract by any law, whether by repeal or modification, is a most palpable form of impairment of such contract. Red Rock v. Henry, 106 U. S. 596, 1 S. Ct. 434, 27 L. Ed. 251; Hall v. Wisconsin, supra; Mays, Adm’r, v. Williams, 27 Ala. 267; 12 C. J. p. 1057, §§ 702, 703. These propositions seem nowhere to be questioned. In view of these principles, the application of this impairment clause to state governmental agencies, the salaries. of officers or employees, constituting a part of such agencies, and engaged in the functions such agencies are created to perform, becomes a vital question in maintaining the sovereignty of the state over its own governmental functionaries, and the expenditure of public moneys appropriated for such governmental ends. The application of the impairment clause to any given ease is a federal ques-' tion, and the decisions of the Supreme Court of the United States the final authority. Northern Pac. R. Co. v. Minnesota, 208 U. S. 583, 28 S. Ct. 341, 52 L. Ed. 630; 12 C. J. p. 1057, § 700, and notes. In studying vested contract rights under this nonimpairment clause, the legal mind naturally turns first to the famous case of The Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 628, 629, 630, 4 L. Ed. 629. The following excerpts from the opinion-by Chief Justice Marshall are pertinent: “Taken in its broad unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a-State, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a' provision so unnecessary, so mischievous, and so. repugnant to its general spirit, the term ‘contract’ must be understood in a more limited sense. * * * “That the framers of the constitution did' not intend to -retrain (restrain) the States in-, the regulation of their civil institutions,, adopted for internal government, and that the-instrument they have given .us, is not to be so-construed, may be admitted.” Speaking of the act of incorporation or charter involved, it was further said: « * * * if ü create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the State * * * as a.government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States.” ' Speaking of the Dartmouth College Case in Newton v. Commissioners of Mahoning County, 100 U. S. 548, 558, 559, 25 L. Ed. 710, it was said: “The judgment of the court in that case proceeded upon the ground that the college was ‘a private eleemosynary institution, endowed with a capacity to take property for purposes unconnected with the government, whose funds are bestowed by individuals on the faith of the charter.’ ” The opinion in the Newton Case proceeds: “The legislative power of a State, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties, It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation. Butler et al. v. Pennsylvania, 10 How. 402 [IS. L. Ed. 472], “The police power of the States, and that with respect to municipal corporations, and tw many other things that might be named, are of the same absolute character. Cooley, Const. Lim., pp. 232, 342; The Regents v. Williams, 9 Gill & J, (Md.) 365 [31 Am. Dee-72], “In all these cases, there can be no contract and no irrepealable law, because they are ‘governmental subjects,’ and hence within the -category before stated. “They involve public interests, and legislative acts concerning them are necessarily public laws. Every succeeding legislature possesses the same jurisdiction and power with. *522 respect to them as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstancés and present exigencies touching the subject involved may require. A different result would be fraught with evil.” The same principle has been several times recognized in our own decisions. Thus, in Stevens v. Thames, 204 Ala. 487, 488, 86 So. 77, 78, opinion by Chief Justice Anderson, it was said that a state agency is “chargeable with notice of that legal principle that the state could make no legal binding contracts with reference to the future maintenance, management, and control of its governmental or other public agencies. * * * In other words, the contractual clause of the federal and state Constitutions has no application to obligations on the part of the state as to the location, conduct, or management of its own institutions. Newton v. Board of County Commissioners of Mahoning County, 100 U. S. 548, 25 L. Ed. 710.” We quote the following from Birmingham Mineral Railroad Co. v. Parsons, 100 Ala. 662, 665, 13 So. 602, 603, 27 L. R. A. 263, 46 Am. St. Rep. 92: “As is well said in American Union Tel. Co. v. Western Union Tel. Co., 67 Ala. 26, 32 [42 Am. Rep. 90]': ‘The police power of a state is a most important power, essential to its very existence, and has been declared by the supreme judicial interpreter of the federal constitution to embrace “the protection of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of good moralsand the legislature cannot, by any contract, divest itself of the power to provide for these objects.’ Boston Beer Co. v. Massachusetts, 97 U. S. 25 [24 L. Ed. 989].” See, also, Ex parte Lambert, 52 Ala. 79. We have quoted extensively to make clear the fundamental bases or reasons on which the decisions are rested. A vast array of eases from the federal and state courts, restating and making application of these principles, could be cited and reviewed. They are compiled in various notes in 12 C. J., among them note 71, p. 992, and several notes under section 643, p. 1017. Is the salary of thes state health officer subject to the control of the Legislature under these thoroughly settled principles? The contention that it is not, but is protected under the impairment clause of the Federal and State Constitutions, is mainly rested on the case of State v. Sanders, 187 Ala. 79, 65 So. 378, L. R. A. 1915A, 295. In that case the state board of healr¡h had increased the salary of the state health officer during the term fixed by the boarj, and later the state brought suit to recover the amount of such increase upon the ground that the increase in salary was prohibited under section 281 of the state Constitution, which reads: “The salary, fees, or compensation of any officer holding any civil office of profit under this state or any county or municipality thereof, shall not be increased or diminished during the term for which he shall have been elected or appointed.” The court held the state health officer not within this inhibition, and his salary was subject to increase during the term originally fixed by the board of health. In course of argument, the opinion said: “It is true that they may be officers, but they are officers of the board or commission which appoints or elects them, and not of the public, the state, the county, the municipality, within section 281. It is in this sense, we think, that the statute in question speaks of appellee as the ‘state health officer.’ * * * No part of the sovereign power of the state is by the statute delegated to appellee, although he is named in the statute as the ‘state health officer.’ The delegation of such authority and power is to the ‘state board of health,’ which is appellee’s creator and master, whom he serves. He does not serve the state; he serves the board which elects him. That statute expressly provides that whatever he does he shall do ‘under the direction of the state board of health.’ ” State v. Sanders, 187 Ala. pp. 83, 84, 65 So. 378, 379, L. R. A. 1915A, 295. With reference to this last announcement, we need only refer to the present statutory provisions creating the office conferring positive law made duties and powers of governmental character, power to appoint and to remove subordinate officers, powers of supervision, the custodian and disburser of public funds, and generally the appropriate duties and powers of an executive officer of an executive state agency. Not reviewing other things said in arguendo in the Sanders Case, the chief ground upon which the decision is based is that no tenure of office was fixed by law; that this was left to the appointive power; that, although the board had fixed a term of office as per statute, as wel-1 as his salary, he was subject to removal, his term of office subject to change *523 at the pleasure of the board. Concluding the opinion, it was said: “The board, as we have before shown, could employ by the day, by the week, month, or year, and change this at will, as well as the amount of compensation, provided it does not exceed the rate of $5,000 per annum. For this reason it is wholly impracticable to apply the provision” — meaning section 281 of the Constitution. State v. Sanders, 187 Ala. p. 90, 65 So. 378, 381, L. R. A. 1915A, 295. Clearly, no question of the application of the contract impairment clause, no question of the sovereign power of the Legislature over the office, or the salary attached thereto was involved nor decided. The only feature of the opinion thought to be of influence in this case is that reducing the state health officer to the position of an officer or mere employee of the state board of health. The technical relation of officer or employee of a government agency is not a controlling consideration in applying the impairment clause now invoked. The real issue is whether he is a part and parcel of a government unit, performing duties prescribed by law, and paid a salary therefor out of public funds. If so, the legislative power which gives life can take it away. The sovereign power of control over the agency itself and the salaries of its functionaries is in the Legislature. It seems to be conceded, and certainly it cannot be questioned, that the Legislature may abolish the office of state health officer, or even the state board of health, at pleasure by repealing the statutes of their creation. It is said this has not been done, and, while he is in office, his salary, as fixed by contract, is protected. The argument confuses section 281 of our Constitution with the contract clause here invoked. The case of Butler et al. v. Pennsylvania, 10 How. 402, 16 L. Ed. 472, was a case of reduction of salary during the term. The court pointed out the power to repeal, and, if the contract clause was applicable, a long, list of pensioners and sinecures would follow. In Hall v. Wisconsin, 103 U. S. 5, 11, 26 L. Ed. 302, the court construed the contract as one by the state as one party, and a private person as the other party; and held the contract remained in force after the repeal of the statute under which it was made. Said the court: “When a State descends from the plane of its sovereignty, and contracts with private persons, it is regarded pro hae vice as a private person itself, and is bound accordingly. Davis v. Gray, 16 Wall. 203 [21 L. Ed. 447].”' Would any one insist that the state was “descending from the plane of its sovereignty” in creating by legislative act the office of state health officer, or that the state board of health was doing so when performing the high duty of selecting a state health officer, fixing his term of office and salary within the limits fixed by law? We would give emphasis to the fact that the statute does not mention contract in connection with the salary of the state health officer. Its terms are wholly different: An office, a term of office, a salary of an officer, in the same section with express provisions fixing his powers and duties, governmental in character. Nothing indicates the Legislature had in mind anything other than the words import, a term and a salary, with the incidents usual to such designations. In the Sanders Case the state board of health had done all the statute (section 1053) empowered it to do, yet it was held his tenure of service and his salary were subject to the control of the appointing power, no element of contract intervening. If following the terms of the statute had been construed as a contract, the basis of the decision would have been swept away. It is pointed out in argument that the power to contract is conferred on the board by subdivision 16, section 1159, which reads: “To employ such clerks, agents and other employees, and to purchase property, materials, and supplies, and to enter into such contracts as may be considered expedient by said board in discharging its duties, or assisting in the discharge of the duties of other boards or officials having duties in connection with any of the health laws of the state.” This provision is not dealing in any way with the salary of the state health officer. It is in a section defining the uses to which the general appropriation made by the same section shall be applied, the money to be drawn from the state treasury by the state health officer, and applied by him to the several purposes named, and concludes with power to make appropriate contracts in the discharge of its duties in conserving the public health, such as purchasing material and supplies, employing clerks, agents, and other employees, etc. The contracts in mind include those made by the state health officer as the active ex *524 ecutive officer in charge; contracts wherein he represents the board as its executive officer contracting with outside parties. We may observe that officers and employees, a part of a state agency or set-up, engaged in carrying on governmental activities, are chargeable with notice of legislative control over such agencies in the matter of salaries payable from public funds. It was so held in State Docks Commission et al. v. State ex rel. Jones, 227 Ala. 521, 150 So. 537, 547, par. 17, citing Stevens v. Thames, supra; State ex rel. Gaston v. Black, 199 Ala. 321, 74 So. 387. This upon the oft-recognized principle that the law is read into the contract. This rule, admittedly applicable to the right to abolish the office of state health officer, and so end his contract, applies with like force to a reduction in salary in dealing with the impairment clause. It is section 281 of our Constitution which protects the. salary of a statutory officer during his term, but subject to the legislative power to end the term by abolishing the office. As for the impairment clause, the power to repeal is the power to amend. The greater includes the less. ’Surely it would be a defenseless position to say the only way the Legislature can control the salaries of officials of a state agency is to destroy the agency, or the office. Apart from any question of a legislative intent to confer on the board power to make the salary of the state health officer a matter of contract, our firm conviction is the state health officer, as before stated, is an integral part of the health department; may well be a member of the State Medical Association, and therefore one of the body incorporated into the state board of health; that his position is what the official name imports and the law declares, .viz., the executive officer of an executive agency, the state board of health, the active head of the health department, with great responsibilities imposed by law, and therefore his salary is under the entire control of the Legislature. The Legislature cannot contract away the sovereignty of the state over agencies of its own creation. This is the basic reason why salaries of statutory officers cannot be made a matter of contract, beyond legislative control in so far as affected by the impairment clause. If the Sanders Case, standing alone, would lead to a different conclusion, in the face of the settled construction of the impairment clause by the supreme authority on that question, as well as our own decisions following such construction, we could not follow it. The suggestion that the Sanders Case has had legislative approval by recodification of the statute without change would have force in dealing with 'section 281 of our own Constitution. But it can have no place in the construction of the impairment clause not there involved. We are asked to declare unconstitutional an express statute lowering such salary; an express legislative pronouncement that such salary is not protected by the contract impairment clause. The doctrine of implied legislative adoption of a prior construction cannot do ’service to strike down an express legislative act to the contrary. We feel constrained to add .that obviously the salary of the state health officer should be in keeping with his labors and responsibilities, and the importance of an unimpaired public health service. Whatever mistake may have been made in the drastic cut of the Lapsley-Lusk Bill under emergency conditions is one of legislative discretion, not of legislative power, and can be remedied only by the Legislature. The judgment of the circuit court is reversed and one here rendered denying the writ of mandamus and dismissing the petition. Reversed and rendered. ANDERSON, O. J., and GARDNER, BROWN, and FOSTER, JJ., concur.