State ex rel. Tzschuck v. Weston

Lake, Ch. J. This is a proceeding by mandamus to compel the defendant who is auditor of state, to draw his warrant upon the state treasurer, in favor of the relator in payment of'his salary as adjutant general of the state. The answer to the alternative writ raises several questions for our consideration which we will briefly notice. I. Is the relator the officer which he claims to be? That he was, at least formally appointed to said office on the 1st day of February, 1875, is not disputed. But it is contended on behalf of the defendant, first: That the governor had no authority to make the appointment; and second: That even if the authority to make it be conceded, yet the new constitution, of its own force, terminated the office on the first day of November last, and third: If this last proposition be untrue, then it is insisted, that the relator, who was duly elected to, and holds the office of secretary of state, with a fixed salary of $2,000 per annum, is, by the constitution, debarred the privilege of receiving any other or further compensation whatever — 240 — from the state, although he may have performed all the duties of the office of adjutant general also. We will notice these objections in the above order. By an act of the legislature, approved February 15, 1869, the governor was required to appoint and commission an adjutant general for the state, who was required by said act to reside at the seat of government, keep his office open for the transaction of business every day, Sundays excepted, and was to receive for his services a salary of $1,000 per annum. This act was repealed on the seventeenth day of March, 1871. By the second section of this repealing act it was provided, that “ the books, papers, and property of the state, in the hands of the adjutant general, shall be taken possession of by the secretary of state, and by him preserved.” By this act it will be observed that the secretary of state was simply made the custodian of the books, papers, and property of the state then in the hands of the adjutant general. He was invested with none of the powers, nor required to perform any of the numerous duties, usually devolving upon an adjutant general. But at the time of the repeal of the act of February 15, 1869, the act of March é, 1870, providing for the organization of state troops, and for other purposes, was in full force. Following the provision of the constitution, in this particular, section five of this act provides, that “ the governor shall be commander-in-chief of the militia, and volunteer troops of the state, and he shall arm and equip the same when in his judgment he shall deem it necessary for the protection of the citizens thereof, so as to conform to the lams ancl regulations of the United States arnvyf eta. Now to do all this it is absolutely necessary that there should be certain officers to perform the various duties contemplated by this act, one of the most important of which, in view of the relation which the military organi — 241 — zation of the state holds to the general government, is the adjutant general. By section six of the Act of Congress entitled, “ An Act more effectually to provide for the National Defense by establishing an uniform militia throughout the United States,” approved May 8, 1792, it is provided, “ That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders from the commander-in-chief of the state to the several corps; to attend all public reviews when the commander-, in-chief of the state shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution and perfecting the system of, military discipline established by this act; to furnish blank forms of different returns that may be required, and to explain the principles on which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline; all of which the several officers of the divisions, brigades, regiments, and battalions, are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith; from all which returns he shall make proper abstracts, and lay the same annually before the commander-in-chief of the state.” 1 U. S. Statutes at Large, 273. Now it is quite clear that this act of Congress contemplates, nay requires, affirmative action at the hands of the proper authorities. Indeed, it directs the performance of a plain duty, which a due regard for the public safety requires should not be omitted. And it would seem that the legislature must have had this duty in view, in the passage of the act of the fourth — 242 — of March, 1870, before referred to, by which at least the skeleton of a state military organization is provided for. As to the office of adjutant general, it was undoubtedly intended by the legislature that it, as well as all other usual and necessary staff offices, required for the efficient organization of the militia, should be left just where they usually are, viz: in the hands of the commander-in-chief, for, by section six of said last named act, it is provided that “the governor shall appoint, except where elected as hereinbefore provided, and commission all officers.” Giving, therefore, to this act of Congress, and to that of our own legislature on this subject, the effect which .it was evidently intended they should have, it seems very clear to us, that the governor had full authority to make the appointment in question, and that the relator was eiititled, under the law, to the compensation which the legislature had provided. II. But, it being established that the relator was rightfully in the possession of the office, and well entitled to the emoluments thereof, at the time our present constitution took effect, how stands the matter now? Is there anything in the instrument from which it can reasonably be inferred, either, that the office is destroyed, the relator rendered ineligible, or the legislative appropriation for 1ns salary changed, or modified, in any respect.? It was claimed on behalf of the defendant that the office ceased to exist on the first day of November last, when the new constitution took effect. This claim is based upon sections one and twenty-six, article Y, of the constitution. Section one, among other things, provides that “ the executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, _ superintendent of public — 243 — instruction, attorney general, and commissioner of public lands and buildings.”. And section twenty-six, “that no other executive state office shall be continued or created, and the duties devolving upon officers, not provided for, by this constitution, shall be performed by the officers herein created.” This last section doubtless refers solely to executive state officers, and to civil duties, strictly executive. Ye do not think it has any reference whatever to the officers necessary to the perfection of a military organization under our National arid State laws. 'Nor do we see any reason why the person who happens to hold the office of secretary of state, may not, at the same time, hold that of adjutant general. It is true, that the duties of the. two offices are -entirely dissimilar, but they are in no respect antagonistic, and, so long as the incumbent is willing to undertake the performance of both, in the absence of a law prohibiting it, we are of the opinion he may do so. We do not think that the office of adjutant general is an executive1 office within the meaning, nor does it fall within the operation of the sections of the constitution before cited. III. But, conceding that he may hold the office, and perform the duties thereof, can he receive the compensation which the legislature has provided? The defendant insists that he is restricted by the constitution solely to his salary as secretary of state. It, is doubtless true, that, as to all duties, which, as secretary of state, he is now, or may hereafter be required to perform, lie is absolutely restricted to the salary provided in the constitution. But we do not think this restriction goes to the extent claimed for it. It is found in section twenty-four, article Y, which fixes the salaries of tlié several executive state officers, and, among other things provides, that the officers therein mentioned, “ shall not receive to their own use, any fees, costs, inter — 244 — est upon public moneys in their hands, or under their control, perquisites of office, or other compensation,” etc. As before stated, this would undoubtedly apply to all acts or duties, required of the relator as secretary of state, and as to such acts and duties, he is confined to his salary of $2000 per annum, for his compensation. But the duties imposed upon him as adjutant general are in no sense of a civil character, but purely military. Under the act of Congress before referred to, it is made his duty “ to distribute all orders from the commander-in-chief of the state to the several corps; to attend all public reviews, when the commander-in-chief shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution and perfecting the system of military discipline established by this act,” duties in no sense pertaining or relating to the office of secretary of state, and not imposed upon him as such officer. Such being the case, we see no reason why the relator is not entitled to whatever compensation, as adjutant general, the legislature may see fit to bestow upon him, in addition to his salary as secretary of state. Love v. Baehr, 47 California, 364. The PEREMPTORY WRIT IS AWARDED. All the judges concurred.