185 Ga. 244 | Ga. | 1937
Lewis A. Irons brought a petition for mandamus against Homer Parker, comptroller-general of the State of Georgia. The petition was sanctioned and ordered filed on November 10, 1936. As amended it contained substantially the following allegations: On January 1, 1933, petitioner was legally appointed deputy insurance commissioner of the State of Georgia, in the comptroller-general’s department, the comptroller-general at that time being William B. Harrison. Petitioner’s salary was fixed by law at $3000 per annum. On April 1, 1933, the comptroller-general, Harrison, reduced petitioner’s salary ten per cent.,
The first question presented for determination is whether the petitioner, as a matter of law, is entitled to the unpaid salary to which he lays claim. The insurance dep 1artment of the State of Georgia is a department in the office of the comptroller-general, who as to that partic`ular department is styled “insurance commissioner,`” and as such he may appoint a deputy insurance commissioner. Code, § 56-101. “The deputy insurance commissioner, who shall be a man of actuarial experience, shall be paid out of the State treasury, as is now provided by law for the payment of salaries of all State-house officers, a salary of $3000 per annum.” § 56-102. (Ga. L. 1912, pp. 119, 128; 1919, p. 283; 1931, pp. 7, 31). The Code, § 89-701 (Ga. L. 1865-66, pp. 11, 12), declares: “The various sums of the annual salaries of all the officers of this State, whose salaries are fixed by law, are hereby appropriated annually to pay said officers until said salaries are changed by law.” Construing these two sections together, it appears that the legislature appropriated annually $3000 to pay the salary of the deputy insurance commissioner. Such an appropriation constituted what is commonly termed a “continuing” or “permanent” appropriation. While ordinarily a continuing or permanent appropriation might have the effect of annually appropriating such sums to the purposes enumerated, there is a section of the Code, § 47-502 (Ga. L. 1889, p. 15), which to some extent militates against this effect. It declares : “All general appropriation bills, in addition to the cus
The general appropriation act of 1931 (Ga. L. 1931, pp. 50, 57), covering the years 1932 and 1933, contains an appropriation to the comptroller-general’s department in the lump sum of $120,-000, and provides “that from the above amount appropriated shall be expended the necessary amounts to carry out the entire duties of the department,” with certain exceptions not material to the
Appropriations for the salary of the deputy insurance commissioner having been embraced in the general appropriation acts of 1931 and 1933, the previous continuing appropriation for the same salary was merged into and became a part of the general appropriations for the years covered by such acts, losing its identity as a continuing appropriation, and is subject to the qualifications, conditions, and provisos contained in such general appropriation acts relating to the appropriations therein made. The act of 1931 provided that the appropriations therein made were subject to the following conditions: "In the event the revenue for either of the years 1932 and 1933 shall not be sufficient to pay all said appropriations in full for said year, the appropriations herein made for such year which are fixed by previous laws shall be paid in full, and the remaining appropriations herein made for such year shall, in the event of such deficit of revenue for either of said years, be reduced, and the same are hereby reduced, in the ratio that the amount of any such appropriation bears to the amount of the deficit for either of such years. In the event the appropriation for any board, bureau, commission, department, or agency of the State shall be reduced, under this section, by reason of any deficiency in revenue for either of the years 1932 and 1933, the amount of the appropriation provided by this bill and remaining unpaid by reason of such reduction shall not constitute a claim against, or obligation of, the State of Georgia, but the status of any board, bureau, commission, department, or agency of the State to which any such appropriation is herein made shall be the same as if only such reduced' amount had been appropriated in this bill.” The act of 1933 contained the following provisions: “In the event that the revenue receipts of the State treasury available for paying the fixed sum appropriations herein made should be less than the total sum of such appropriations in either of the periods covered under this act, then the fixed amounts herein appropriated for that period shall be paid in full for the following purposes: Fox insurance on public property, for the interest on the fixed public debt, for the interest on current loans, and for the expenses of the judicial and legislative branches; and the fixed sums appropriated for all other purposes for that period shall be reduced pro rata in the amount of the deficiency of revenue receipts for the period.
The general appropriation act of 1933 does not exempt from the operation of the reduction clause contained therein appropriations the amount of which is fixed by previous laws, and the appropriation for the salary of the deputy insurance commissioner, included in the fixed sum appropriated to the eomptroller-generaPs department, was such an appropriation as was affected by the reduction clause of the act. The appropriation to such office was, under the terms of the act, "annulled” to the extent that the revenue for the respective years covered by the act was insufficient to pay the fixed sum appropriation in' full. It follows that under the evidence adduced at the hearing, and the ruling above made, the petitioner, so far as the appropriation acts covering the period of his employment are concerned, was entitled to his full salary for the year 1933, and to such portion of his salary for the years 1934
The petitioner contends, that, regardless of the deficiencies in revenue for the years 1934 and 1935, he is entitled to his'salary (as previously fixed by law) in full, by reason of certain proclamations of the Governor under dates of February 17, 1936, and September 14, 1936, which proclamations, he contends, resurrected the general appropriation act of 1933, so that revenues coming to the State in 1936 could be applied to the payment of the difference between the “original” appropriations in said act and the amount of such appropriations as “reduced” or “annulled” by the act itself, which “reduced” or “annulled” appropriations were by the act itself, in the event of a deficiency in revenue, declared to constitute the appropriation made. We have previously shown that the salary of petitioner was fixed by law, and that a continuing appropriation was made for the payment thereof; but that such appropriation, in so far as its continuance without further authority from the legislature was concerned, was suspended, and became a part of and was merged into the lump-sum appropriation to the comptroller-generaPs department by the act of 1933. Under the terms of the act of 1933 all appropriations therein made, with certain exceptions not here material, were reduced pro rata in the amount of the deficiency of revenue receipts for the periods covered by the act (1934 and 1935), and the sums remaining after the application of this provision were made the appropriations for the purposes named in the act in lieu of the amounts therein fixed and set out. The legislature at its session in 1935 failed to pass a general appropriation act covering the year 1936, or for any period following the year 1935, at the end of which the last preceding general act of 1933 ceased to be of force, if it is to be given effect according to its own terms, as hereinbefore disclosed. So far as is here material, each appropriation made by the act of 1933 was “reduced” or “annulled” to the extent that
Having determined that the petitioner was entitled to more salary than was paid him for the years 1933 and .1935, it is now necessary to decide whether he is entitled to have the comptroller-general perform the acts prayed for. The comptroller-general is not authorized to draw a warrant upon the State treasurer. Code, §§ 40-1102, 40-204. Under the evidence the judge was authorized to find that the entire appropriation to the comptroller-general’s department for the two years last mentioned was paid to that officer by the treasurer, and therefore that the fund in the treasury appropriated to the payment of the petitioner’s salary was exhausted. The Code, § 40-1505 (7), declares that it is the duty of the comptroller-general “to see that no draft or warrant shall be countersigned by him to be paid out of any appropriated fund after the same shall have been exhausted; and in such case, or any case of illegal payments from the treasury upon warrants countersigned by the comptroller, he, as well as the treasurer, with all their securities, shall be jointly and severally liable upon their several bonds for the repayment of such amounts, with all expenses of prosecution, to the State.” In view of this provision of the Code and the evidence, the petitioner was not entitled to an order compelling the comptroller-general to issue a warrant upon the treasurer, or to request the Governor to issue a warrant and upon the issuance thereof to countersign the same. However, when the appropriations for the expense of operating the comptroller-general’s department, which included the funds appropriated for the payment of petitioner’s salary, were paid over to the comptroller-general, it was his duty to pay out said sums for the purposes
Headnotes 6, 7, 8, and 9 do not require elaboration.
Judgment reversed.