140 N.W. 736 | S.D. | 1913
On February 14, 1913, Samuel C. Polley filed with the clerk of this court his petition for an alternative writ of
On the return day of the writ (February 19, 1913) defendant made return, alleging, first, that the petition should be dismissed for the reason that it appears, on 'the face of the writ and application therefor, that neither plaintiff nor relator is entitled to the relief demanded nor any relief whatever. Further answering the writ, ■ defendant alleges that on the 8th day of February, 1913, plaintiff presented to defendant, as State Auditor, two certain instruments, or vouchers, copies of which are attached, marked Exhibits A and B; that defendant, believing in good faith that plaintiff was neither entitled to receive a salary warrant for $250 for the month of January, 1913, nor an expense warrant for $50 for the month of January, 1913, declined to comply with plaintiff’s demand, for the reason that plaintiff’s term of office commenced at noon on the 7th day of January, 1913; that defendant was prompted by no other motive or desire except properly and lawfully to perform his duty as State Auditor; and that plaintiff was not and is not entitled to compensation as salary or expense for any period
The two vouchers attached and referred to in the return are as follows:
EXHIBIT A.
“Soüth Dakota, February 7th, 1913.
“The State of South Dakota, Dr'., to S. C. Polley, 1st District,
Office of Judge of Supreme Court.
“For salary only.
“Salary for January, 1913, $250.00.”
Back: “I hereby certify that the within account is just and true,’ and that no part of the same has been paid, and the same is hereby approved. S. C. Polley.
“Office of Judge of Supreme Court, First District.
“Received of the State Auditor warrant No. - for $250.00 in full payment of the within' account. - -.”
Exhibit B is identical in form, covering expense account for $50.
On the hearing both parties appeared by counsel and have filed briefs setting forth their respective contentions. It is conceded by counsel that Judge Corson, plaintiff’s predecessor, remained in office until the 7th day of January, 1913. It is also conceded that plaintiff’s actual tenure of office began upon his qualification on January 7, 1913. Section 2, art. 21, of the Constitution, is as follows: “The Judges of the Supreme Court shall each receive an annual salary of $2,500: Provided that 'the Legislature may after the year 1890, increase the annual salary of Judge of the Supreme Court -to $3,000.” Acting under the authority conferred by. this section of the Constitution, the Legislature by chapter no, Laws of 1901, increased the annual salary of the Judges of the Supreme Court to $3,000. Section 623, Political Code, 1903, .provided that each Judge of the Supreme Court should receive an annual salary of $3,000, payable quarterly. The time of payment of salaries was changed by section 43, c. 82, Laws of 1911, the general appropriation act, which provides as follows: “All amounts herein appropriated shall be used for the specific purpose herein mentioned and no other; and the State Auditor shall issue his warrants on certified itemized and approved vouchers filed
Section 43, c. 82, Laws of 1911- (the general appropriation bill) provides that all moneys therein appropriated shall be used for the specific purpose therein mentioned' and no other, and that payments out of such funds shall be made by warrants on certified, itemized, and approved vouchers filed in his office.
Section 309, Pol. Code, further provides: “That the fiscal year for the state shall commence on the xst day of July, and end on the 30th day of June in each year, and all reports required to be made annually to the Governor, shall be made to embrace the receipts, expenditures and business done during such fiscal year.”
All appropriations for payments of salaries and expenses are made specifically for each fiscal year; and all payments are required to be made out of the specific appropriations for the current fiscal year. No claim for salary, or expenses can be paid1Nout of an appropriation for any preceding or succeeding fiscal year. It must be’apparent, therefore, that plaintiff is in error in claiming, as he does in his brief, that “the annual salaries of the state officers are computed and paid with reference to the first day of the official
Plaintiff’s argument in the reply ¡brief is that, as his incumbency of office began on the 7th day of January, 1913, a .payment of one-twelfth of the annual salary became due on February 8, 1913; i. e.; upon the expiration of the first official month. The contention is that it is immaterial, so' far as the issues in this case are concerned, whether the monthly payments are made at the end of the calendar month or at the end of the official month. Counsel might be correct in his view, if the official duties of the State Auditor were controlled by the subdivisions of the official year. But we think it plain that, in the performance'of his official duties, the Auditor’s acts are controlled by the monthly subdivisions of' the fiscal year. Plaintiff says in his brief: “No claim is made for pay for any time prior to the 7th day of January, 1913.” Iiis contention then is that monthly claims for salary accrue on the 8th day of each month. This contention would make it necessary to disregard the form of the voucher submitted to the Auditor in this case, and -to assume, as counsel says in his brief, that the form of the voucher is “of no significance whatever.” But we cannot agree with the view that the form of the voucher is immaterial. The law requires the Auditor to act upon vouchers; and the very purpose of a voucher is to advise the Auditor of the extent of the claim made. It is not the date of the presentation of the voucher which advises the Auditor, of the character and extent of the claim, but the language of the voucher itself. In this case, the voucher in express terms covered and claimed payment “for salary for January, 1913.” The -fact that it was presented on February 8th did not advise the Auditor that the .claim was for salary from January 7, 1913, to February 8, 1913; nor does the Auditor seem to have been so advised until the reply brief was filed in this case. ■But, if the voucher had been so framed as to claim payment from January 7th to February 8th, the question would still remain as to
The, fiscal year within which this payment must be made began July x 1912, and will.end June 30, 1913. ; If each, monthly period begins on,.the 7th'of the month, and the.monthly installment of salary becomes payable on the 8th. of the succeeding month, me last payment in the current fiscal year would mature on the 8th day of July, 1913. That portion of the salary covering,the period from July 1st to July 8th could not be paid out of the appropriation for the fiscal year ending June 30th; and the Auditor dould not be compelled to issue,-upon a voucher for the .month of June, a warrant payable out - of appropriations for two different fiscal years.
Calendar and fiscal years coincide in monthly subdivisions. The calendar year begins January 1st, while the fiscal year begins July xst. It follows that fiscal and calendar months are identical, and that the equal monthly payments'required by the statute are intended to cover the fiscal or calendar months. ' Hence we think it clear that the Auditor is required to adjust monthly payments so that they shall coincide with the actual periods of official service in calendar months of the fiscal year. This could only be accomplished in this case by payment, upon a separate voucher, covering the period between January 7th and January 31st. The Auditor cannot -pay upon any voucher 'except .from a current available appropriation. Therefore, on the 8th day of July, 1913, it would be necessary for plaintiff to present a separate voucher covering that portion of the new fiscal year between July 1 and July 8, 1913. It seems plain, having, in mind the method of- making specific appropriations, that the legislature did not intend that a single monthly voucher should cover portions of two months, but- that the voucher or vouchers, for the equal installments of salary, should cover a whole fiscal or calendar month within which official services were rendered , by one or more persons. The statute does not require the entire “equal installment” for any fiscal month to be paid to one person, unless the official services of that person have extended through the entire month. The annual monthly installment is appropriated for the office and not for the officer. For example, one “equal installment”, of $250 salary must be.paid by the state, for the whole fiscal month of January, - to the person or persons
At the hearing, plaintiff’s counsel cited United States v. Dickson, 15 Pet. 141, 10 L. Ed. 689, as an authority sustaining his contention. On the contrary, -we are entirely clear that this decision sustains our views. In summing the discussion in that case, Justice Story says: “The object of the act of 1818 manfestly is to provide a suitable compensation for the receivers and registers of public moneys for the public lands. ' The compensation is for services to be rendered by them, officially, during their continuance in office; and up to a certain point, at least, it is in exact proportion to the extent and duration of -those services, and the responsibility incurred thereby. The compensation is. measured by years. It is to be by an annual'salary, and by a commission n-ot exceeding an 'annual amount. The words are that ‘they shall receive an annual
The same view is expressed in Dillon v. Bicknell, 116 Cal. 111, 47 Pac. 937. That case involved the salary of the district attorney, which was fixed by law at $4,000 per annum, and was paid in monthly installments, of $333.33 1-3 per month by warrants drawn upon the defendant, county treasurer. Plaintiff claimed that he had served five days more than two official years, and demanded that defendant, as auditor, issue a warrant on the county treasurer for salaiy for these five days, amounting to $54.50. The auditor had refused to issue the warrant, and the court below had rendered judgment directing a peremptory writ. From this judgment, tlie appeal was taken. The judgment appealed from was affirmed. In concluding the opinion, the court says: “Indeed, under the statute fixing the commencement and termination of the terms of county officers, it can never happen that the 'term consists of precisely two years, it being sometimes more and sometimes less; and therefore the provision fixing the compensation at an annual sum should -be construed as fixing the rate of compensation to be paid for the time the officer actually serves. This construction will do exact justice between the preceding and succeeding officers, and not increase the burden to be borne by the people.” The case is very analogous to the case at bar in its facts, and the legal' reasoning sustains our views. • The conclusion reached is ^identical with that announced in United States v. Dickson, ■ supra.
Allusion is made in plaintiff’s brief to the custom of the Auditor’s department in paying annual salaries of state officers in monthly installments measured by the official year. It is suggested,. but not shown, that such payments have not been made in accordance with the calendar year, but according to the official month and year; and it is urged that the principle of contemporaneous exposition and usage should be given weight. The same proposition
We think, however, that such considerations have no application to thé case before us, for the reason that the interpretation of the law urged by the Auditor is not adverse to, but in accordance with, the views entertained by the court in this case. We are or opinion the Auditor was right in his contention that it was not his duty to issue a warrant for $250 salary and $50 expense on a voucher covering the month of January, 1913, and that it was his duty to issue warrants, on the voucher presented, only for that portion of the month during which the plaintiff was actually in, office.
The peremptory writ must be denied, and the proceeding dismissed, but without costs to either party.