State ex rel. Hibbard v. Cornell

Nokvax,, C. J. This is an original application for a peremptory writ of mandamus to require the respondent, as auditor of public accounts, to audit and adjust the claim of relator against the state for salary as deputy food commissioner. Belator was appointed to said position by the governor on or about July 1,1899, in pursuance of chapter 35, Laws, 1899. This act is entitled “An act creating a food commission; defining its powers and duties and of the officers and agents thereof; regulating the manufacture and sale of foods including imitation butter and imitation cheese and dairy products; providing for a system of reports, inspection and permits and fixing fees for the same; providing penalties for violation of this act; making an annual appropriation for carrying this act into effect; and repealing all acts and parts of acts in conflict herewith.” [280] The act purports, inter alia, to create a food commission; to make the governor the food commissioner, with authority to appoint a deputy food commissioner at a salary of $1,500 per annum, payable monthly, together with his expenses actually and necessarily incurred in discharging the duties of his office; to authorize such deputy to employ a clerk -at a salary not to exceed $75 a month; to define the duties of the food commission and its commissioners; to require dealers in imitation butter and imitation cheese to make reports; to provide for permits for dealers and manufacturers of certain articles and for the inspection thereof; to prescribe fees, and to provide for their payment into the state treasury and penalties for the violation of the provisions of the act. The 12th section declares: “There is hereby annually appropriated out of the funds of the state not otherwise appropriated, for the purpose of carrying into effect the provisions of this act, the sum of five thousand dollars ($5,000). Provided, that the amount paid out shall in no case exceed the amount received by the state, as provided for in this act.” The respondent refuses to audit the claim, for the reason that said section 12 of the act contravenes section 19, article 3, of the constitution, which provides, inter alia: “Bills making appropriations for the pay of members and officers of the legislature, and for the salaries of the officers of the government, shall contain no provision on any other subject.” This provision of the fundamental law is plain enough. It requires that legislative acts which appropriate money from the state treasury to pay officers and members of the legislature, and for salaries of state officers, shall contain no other subject of legislation. This restriction upon the power of the lawmaking body must be observed and enforced. It is argued that the restrictive or prohibitory features of said section of the constitution are applicable alone to officers named in the fundamental law. To this doctrine we are unable to assent. Certainly, the language of the section contains uq such distinction, and the courts have [281] no right to make it by interpolating words into the section. Moreover, said section could not have been intended by its framers to be applicable alone to state officers created by the constitution, since it requires no appropriation of moneys from the treasury by the legislature to pay such officers. As to them the constitution itself makes the appropriation. State v. Weston, 4 Nebr., 216. It follows that if the constitutional provision under consideration is not meaningless, it applies to those officers of the state government whose salaries are not fixed by the constitution, but whose compensation is left to the discretion of the legislature. It is true, the legislature more .than once has created an office, and in the same act attempted to make an appropriation for the payment of the salary thereof, which constitutes a legislative construction of the section of the constitution we are considering adverse to the views we have expressed, and if the section would admit of more than one interpretation, the legislative construction would probably be controlling. But the interpretation by the legislative department can not be invoked, since the meaning of the constitutional provision is not involved in doubt. In argument it is also suggested that the deputy food commissioner is in no constitutional sense an officer, but is a mere employee. The provisions of chapter 35 will not justify such an interpretation. The governor, who is a state officer, is made the food commissioner, and it would seem strange to designate the deputy appointed by the governor a mere employee. Section 2 of said chapter provides that “said deputy food commissioner shall hold his office,” etc. Section 3 requires such deputy to give a bond “conditioned for the faithful discharge of his duties and the accounting for all money and other property that may come into his hands by virtue of his office.” Further, it is provided that said deputy shall make an annual report to the governor the same as other state officers. There is no escaping the conclusion that the deputy food commissioner is an officer of the state [282] government, and not a mere clerk or employee. It follows that section 12 of said chapter 35 conflicts with section 19, article 3, of the constitution, and is void. A brief has been filed by Hon. T. J. Mahoney on behalf of persons not party to the record, who claim to be indirectly interested in the decision, in which it is argued that the act creating the food commission is inimical to section 26, article 5, of the state constitution, which declares that “no other executive state office shall be continued or created, and the duties now devolving upon officers not provided for by this constitution shall be pei’formed by the officers herein created.” Having reached the conclusion that no warrant can be drawn in payment of relator’s salary by reason of the invalidity of section 12 of said chapter 35, the constitutional question urged upon the attention of the court by Mr. Mahoney will not now be considered. Writ denied