67 Mo. 64 | Mo. | 1877
Lead Opinion
By an act of the General Assembly, approved March 30th, 1872, the members of the State Senate and the Lieutenant Governor were constituted a State Board for the equalization of the valuation of real and personal property among the several counties in the State, and their compensation fixed at the same sum per diem as was allowed members of the General Assembly, which was five dollars per day. Section 1, article 5 of the constitution provides that “ the Executive Department shall consist of a Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Schools, all of whom, except the Lieutenant Governor, shall reside at the Seat of Government during their term of office, and keep the public records, books and papers there, and shall perform such
The 18th section, of the 10th article, constitutes the Governor, State Auditor, State Treasurer, Secretary of State and Attorney General, a State Board of Equalization, requiring’ them to adjust and equalize the valuation of real and personal property among the several counties of the State, and to perform such other duties as were then, or might thereafter be prescribed by law.
These are all the provisions to be found on the subject in the constitution or the statutes, and the question for consideration on this application for a mandamus is, arc the members of the Board of Equalization, as at present constituted, entitled to the compensation which was allowed the members of the board under- the act of 1872? Among the officers named in the 5th article of the constitution, are those who compose the State Board of Equalization, and the terms of those now in office, all commenced since the adoption of the present constitution. Membership of that board is not an office which cither of the members can decline without resigning his principal office. They are ex-officio members of the State Board of Equalization, and as Governor, Secretary of State, State Auditor State Treasurer and Attorney General, bound to discharge the duties imposed upon them as such officer’s. By the 24th section of article 5, they are not entitled to receive any fees, costs, or perquisites of office, and if -nothing more had been added, the argument would prevail, that
The meaning of the constitutional provision we take to be, that for any duties imposed upon them as executive officers, they shall receive no compensation except the salary established by law. That the duty of serving as members of the Board of Equalization is imposed upon them respectively as executive officers is clear, if they are not at liberty to decline the performance of that service, and that they cannot is placed beyond controversy by the first section of article five, which requires them respectively to perform such duties as may be prescribed by law-The relator contends that, as the constitution requires the General Assembly to establish a salary for each of these offices, and it has failed to do so, they are entitled to the compensation which was allowed for services required of them, when the constitution was adopted. Salaries for these offices were established by law when the constitution was adopted, and the constitution continued them as established until otherwise provided by the General Assembly, and the provision of the constitution is imperative, that “ after the expiration of the terms of those in office, at the adoption of the constitution,” the officers named, shall receive no other compensation than the salary. That provision requires no legislation to give it effect. It were an easy matter to evade that constitutional provision, if these sections admitted of any other construction than that which we have given them. Additional duties to those now required might be imposed upon them and a eompen
Peremptory Writ Refused.
Concurrence Opinion
Concurring. — The 4th section of the 5th article of the constitution, provides that the officers named in said article, among whom is the relator, shall receive, for their services, a salary to be established by law, which shall not be increased, or diminished,, during their official terms; and they are not allowed to receive any fees, costs, perquisites of office, or other compensation. That is, they shall receive no other compensation than the salary estab
Dissenting Opinion
Dissenting. — Not concurring in the opinion of the court in this case, I deem it not inappropriate to express the reasons for my dissent. •
The questions arising in this case are as follows : Are the members of this board entitled to compensation for the services thus required ? If so, is that compensation fixed by law, and if so fixed, is there any existing appropriation made to pay it? The service required of this board is one of great public concern, vitally affecting the revenues of the State, full of responsibility and labor, and in determining the first question presented it is of some moment to look to the state of the law on this subject before the provision above quoted was adopted. Under the acts of 1873, p. 63, the Board of Equalization was composed of the State Senators, in number 34, who received as compensation, five dollars per day, while engagécl in the work of the board. This system was an expensive one, and it was deemed wise that it should be superseded by a board composed of a less number, 'whereby its expenses would be greatly diminished without detriment to the public interests committed to its charge. It was not designed that this work should cost nothing, but simply that its cost should be reduced. That the State ought to pay for such service, and that the people of the State are willing to pay for all needful work which public necessity demands, will not be seriously controverted. It would be an impeachment of their sense of justice to take any other view, and
It is claimed that Sec. 24, Art. 5, of the constitution contains this prohibition. It is as follows: “ That the officers named in this article shall receive for their services a salary, to be fixed by law, which shall not be increased nor diminished during their official term, and they shall not, after the expiration of the terms of those in office at the adoption of this constitution, receive to their own use any fees, costs, perquisites of office or other compensation. All fees that may hereafter be payable by law for any service performed by any officer provided for in this article shall be paid in advance into the State treasury.” This section was manifestly designed to confine the compensation of the officers included in it among whom are the Governor, Attorney General, Secretary of State, Auditor and Treasurer, to the salaries which might by law be established for each respective officer, for all work done by him as such officer. They are not allowed to receive any fee for work done by' them as such officers, nor any other compensation for work done by them as such officers. This, I think, is the full scope of the section. If the Attorney General performs all the duties of his office to the full extent of the requirements of the law, and takes a fee as a lawyer for arguing before this court a case between two citizens, no interest of the State being involved, it would not be pretended that he might not rightfully do so, and that the inhibition contained in said section that he should not receive any fee or other compensation, would apply. My view is that the inhibition imposed to receiving any other compensation relates entirely to compensation for services rendered by the respective officers as such officers, in their respective offices. Under this view, unless it can be made to appear that the work for which compensation is claimed by
Although the constitution creates a Board of Equalization and makes five members of the Executive Department component members of it, yet the duties to be performed, and the work to be done, are not enjoined upon them as officers, but as a board, and as such to assess, adjust and equalize the valuation of property, &e. ' It is neither the act of the Governor, Attorney General,- Secretary of State, Auditor or Treasurer, but the act ol! a board, the work of which is required to be signed by its president and attested by its secretary. Neither the Governor as governor, nor the Secretary of State as such, nor the Attorney General as such, could do this work. It is done by them as a board of assessors, equalizers and adjusters, and the constitution expressly declares that it shall be so done. A senator while acting under the law which required this board to be composed of all the senators of the State, .could not be said to be acting in the capacity of senator, but simply as a constituent member of another body, haviug no legislative duty or function to perform, his right to membership thereof being dependent on the fact of his being a senator, and when he exhibited his title or right to membership in such body his official character as senator was lost or merged in the new duties thus assumed, and in the new relations thus formed. His act could not be said to be the act of a senator, but the act of an assessor invested with power to swear witnesses, hear evidence and adjudicate any disputed question which might arise. Nor can it be said, with any propriety, that the Governor, in acting as a member of said board, was performing an executive duty, -or that the law officer of the State was acting as attorney General, or that the Secretary of State was acting in that capacity, or that the Treasurer was acting as such.
The report of the proceedings of the first Board of Equalization under our present constitution supports the
Has there been an appropriation made applicable to its payment? Acts 1877, p. 12, Sec. 4, provides that there is hereby appropriated out of the Treasury for the purpose of paying the cost of assessing and collecting the revenue, the sum of $280,000. This fund, so appropriated, could be properly drawn upon for the payment of relator’s claim, as the revenues of the State are not in condition to be collected until the Board of Equalization complete'their work. The relator being entitled to the compensation claimed, and there being an appropriation of money to pay it, has, in my judgment, a right to a peremptory writ compelling the Auditor to audit his account and draw his warrant therefor.