Reynolds v. Blue

PECK, C. J. The motion to dismiss the appeal because security for the costs of the appeal was not given, must be overruled. This proceeding is essentially, except as to the name of the party against whom it is instituted, a proceeding against the State. The appellant, as auditor, has no interest in the matter, except in so far as it is his duty, as a public State officer, to protect the interests of [713] the State,-and he ought to.be permitted to do this without subjecting himself, individually, for the costs. Since the case of Riggs, Comptroller, v. Pfister, 21 Ala. 469, to the present time, the comptroller and auditor have uniformly, so far as we know, prosecuted appeals in such cases without giving security for the costs of the appeal, and we are not disposed to disturb this long continued practice. If not within the letter, such cases are within the spirit of section 3487 of the Eevised Code. 2. At the June term of this court, 1871, in the case of Moren, lieutenant-governor, against the present appellee, we held that when the general assembly, during an annual session of the legislature, adjourns for a month, longer or shorter, and the object of such an adjournment is, that the members may return to their homes, and the business of the session thereby ceases for that time, in such cases, neither the members nor the officers of the two houses are entitled to their per diem compensation for the period of such an adjournment; that where officers receive a per diem compensation, there must be a per diem service. In principle, there is no substantial difference between that case and the present. The resolution of the senate dated the 26th of February, 1872, (Journal, p. 548,) authorizing and requiring the president and the secretary, of the senate to issue the usual certificates to the regularly elected and appointed officers of the senate during the recess of the general assembly, commencing on the 19th of December, 1871, and ending on the 10th day of January, 1872, does not, loithout other legislation, make it the duty of the auditor, nor authorize him, to draw his warrant on the treasury for the payment of certificates issued by authority of said resolution. Article IV, § 31 of the constitution, says, “No money shall be drawn from the treasury but in pursuance of an appropriation made by law.” Said resolution is not a law within the meaning - of that section of the constitution, and we are not informed, nor is it stated in appellee’s petition, that any law has been passed providing for the payment of said certificates. Without this, [714] the auditor correctly refused to. draw Ms warrant on the treasury for the payment of the certificate issued to petL tioner under said resolution. The demurrer of the auditor to appellee’s petition should have been sustained. The judgment of the court below is reversed, at appellee’s costs.