State ex rel. Register of Public Lands v. Auditor of Public Accounts

Bates, Judge, delivered the opinion of the court. The act of the General Assembly of March 15,1861, imposed upon the register of lands certain duties, for the performance of which a certain compensation was provided, to be “ paid out of the State treasury, upon the production to the auditor of public accounts of the certificate of the secret tary of State that such service has been performed.” The performance of the service was not a voluntary act of the register, but was required of him by law. We do not think it necessary in this case to determine whether the joint resolution pleaded by the auditor was passed in such conformity to the requirements of the constitution as to the style of acts, as to give it effect as a law. Regarding it as formally passed, we yet think that it cannot lawfully have the effect designed. When the register had performed the services required of [291] him by the act of 1861, his right to the compensation provided by that act was perfect, and any obstruction of the means by which it was provided that he should be paid which effectually bars him from the receipt of that compensation, is equivalent to an absolute refusal to pay him, which is a denial of right and not a mere alteration of the form of remedy. The General Assembly has never directed in what manner and in what courts suits may be brought against the State, as required by the constitution; so that, if this resolution of the General Assembly should stop the payment to the register of his compensation provided by law, he is left utterly without remedy. Had, then, the General Assembly power to pass this resolution ? The constitution declares that no law retrospective in its operation can be passed. Regarding the resolution as intended to be a law (and if it is not it has no effect), it is undoubtedly retrospective in its operation, and destructive of a vested right, and therefore void. It was argued in behalf of the auditor that ho was subject to the directions of the General Assembly, which can prescribe his duties and alter them at pleasure, and that this resolution was a mere direction to him as to the performance of his duties, which he was lawfully bound to obey. Without disputing the general principle, it is a sufficient reply to this argument to say that such directions cannot be lawfully given and obeyed for the mere purpose and effect of destroying the rights of other persons already vested by law. Peremptory mandamus is awarded. Judge Dryden concurs. Judge Bay being sick did not sit in the cause.