19 Colo. 360 | Colo. | 1894
Lead Opinion
delivered the opinion of the court.
Was the defendant in error entitled to the peremptory writ of mandamus ?
It is admitted that no appropriation was made by the ninth general assembly of the state of Colorado for the payment of any salary to the inspector of metalliferous mines for the year 1893, and also that there is no state fund out of which such salary can be paid.
Among the statutes passed in furtherance of this constitutional provision, are the following:— “ In all eases of accounts, audited and allowed against the state, and in all cases of grants, salaries, pay and expenses, allowed by law, the auditor shall draw a warrant on the treasurer for the amount due, in the form required by law; Provided, An appropriation has been previously made for such purpose.” Sec. 1826, Mills’ Ann. Stat. “ No warrant shall be drawn by the auditor, or paid by the treasurer, unless the money has been previously appropriated by law; nor shall the whole amount drawn for or paid under one head ever exceed the amount appropriated by law for that purpose.” Sec. 1827, Mills’ Ann. Stat.
The primary object of the foregoing provision of the constitution and of the statutes passed in aid thereof is to prevent the expenditure of the money of the people without their consent, expressed in the organic law or by constitutional acts of their legislature. An appropriation is made a prerequisite to payment in every instance. The Institute v. Henderson, 18 Colo. 98.
Is there an appropriation out of which the salary of defendant in error should be paid? The argument in support of the affirmative is in substance as follows : No set form of words is necessary to constitute an appropriation; it is sufficient if the legislative intent to appropriate money for a specific purpose clearly appears from the statute, and when the salary of a public officer is fixed by law, together with the time and method of payment, this constitutes an appropriation within the terms of our constitution and statutes.
Although the decisions are not uniform it must be admitted that the trend of the more recent cases is in support of this argument. Carr v. State, 22 Am. St. Reports, 624, and notes; State v. The Auditor, (Wy.) 33 Pac. Rep. 125; In re Continuing Appropriations, 18 Colo. 192. Whether the pecu
The statute providing for the inspector’s salary is peculiar. It differs from the provisions usually employed with reference to the compensation of state officers. It reads as follows : “ The inspector of metalliferous mines shall receive a salary of three thousand five hundred dollars per year, and ten cents per mile for mileage actually and necessarily traveled in the discharge of his official duties, said mileage not to exceed one thousand dollars in any one year, to be paid monthly by the state treasurer out of any moneys appropriated for that purpose, on the certificate of said state inspector of metalliferous mines, showing services rendered and the amount thereof; * * The essential difference between this and the provisions of nearly every other statute fixing the salary of public officers arises from the addition in this statute of the words “ out of any moneys appropriated for that purpose.” There is but one apparent purpose of this innovation, which is that for reasons satisfactory to the legislature that body was of the opinion that the payment of the salary and expenses of this officer should be dependent upon further legislation.
Were it necessary to advance reasons that might have had weight in the legislative mind, it would not be difficult to
But whether these or other reasons operated to produce the result, we must construe the act as written. Although no set form of words is necessary to constitute an appropriation, it being sufficient if the legislative intent to appropriate clearly appears, on the other hand the courts invariably refuse to infer an intention to appropriate from doubtful or ambiguous language. In re Continuing Appropriations, supra.
In the act before us there is not only an absence of language that may be considered either doubtful or ambiguous in favor of the appropriation claimed, but the legislative intent that the act should not of itself constitute an appropriation is clearly manifest.
The judgment of the district court is accordingly reversed and cause remanded.
Reversed.
Rehearing
Opinion upon petition for rehearing.
Upon the petition for rehearing in this case our attention is for the first called to an act of the ninth general assembly, entitled “An act for the relief of James Hutchinson formerly inspector of metalliferous mines and for D. L. McCarthy, John Truan and George Kislingbury formerly assistant inspectors of metalliferous mines and making an appropriation therefor.” Session Laws of 1893, p. 42.
In the preamble to this act the statute under consideration in
Such is xxot the law. The recital is in the preamble of a private statute for the relief of certain individuals xiamed therein, and it is well settled that recitals even in the body of such an act bind no one but those who applied for it. Moreover, a mere recital of fact or law in a public act is not conclusive upon the courts, while such recitals if found in a mere preamble are of still less weight. Branson v. Wirth, 17 Wallace, 32; The State v. Beard et al., 1 Carter (Tnd.) 460; Elmondorff v. Carmichael, 3 Lit. (Ky.) 473.
The rules of construction invoked by couxxsel are xnere aids to be relied upon only when the language of an act is doubtful or ambiguous. The wording of the statute of 1889 leaves no room for construction. No conclusion can be reached other than the one arrived at in the previous opinioxi of this court, if all the words of the statute are given effect. No appropriation can be deduced from the language of the act unless the qualifying phrases, “ out of any moneys appropriated for that purpose ” and “ to be paid out of any appropriation as aforesaid,” be held to be meaningless. The language is plaixi and admits of but one meaning, ,and the task of interpretation can hardly be said to arise. To give this act the construction contended for would not be to interpret the law, but for this court to make it.
The Constitution of Colorado contains numerous restrictions upon the power of the legislature to make appropriations. These wise and beneficent provisions have in many instances had but slight weight with the legislative department of the goveimment. Appropriations in excess of the constitutional limits have been so frequently made as to cease to create surprise. Such acts embarrass the disbursing officers of the state and crowd the dockets of the courts with
We are now asked to add to this embarrassment and confusion by construing an appropriation out of an act, contrary to its express terms. The act by its peculiar phraseology gives evidence of a caution which is to be encouraged as'an indication of more conservative legislation, and this court would be derelict in its duty if it failed to give effect to the legislative intent which is clearly apparent from the language of the act.
The petition for rehearing will be denied.
Rehearing denied.