82 Wis. 39 | Wis. | 1892
The circumstances under which this court will take original jurisdiction of a suit brought by the attorney general in the name of the state upon the relation of a citizen and taxpayer, as here, have been so fully considered and defined by my brothers ORTON and PiNkey in the recent Gerrymander Case, so called, as to require nothing additional at the present time. State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440. It was -there in effect held that this court had such jurisdiction in a suit so brought to control the official action of this defendant by mandamus or injunction as to matters purely ministerial, and in doing so to determine the validity of an act of the legislature imposing upon him such ministerial duties. For the reasons given in those opinions we must here hold that this court has the jurisdiction to determine, and by this action it has become its duty to determine, whether the warrants drawn and threatened to be drawn by the defendant, as such officer, in favor of Wells, as state superintendent, for clerk hire and traveling expenses as indicated in the foregoing statement, are in violation of law or in accordance with law. This conclusion necessarily overrules the first and third grounds of demurrer. It only remains to
The office of state superintendent of public instruction is one of the most important of any in the gift of the people of the state. It was created by the constitution forty-four years ago. The section of that instrument creating the office “provided that his compensation shall not exceed the sum of twelve hundred dollars annually.” Sec. 1, art. X. By the same instrument the governor’s salary was fixed at $1,250 per year, and the lieutenant governor and the members of the legislature at a small per diem, while the compensation of other officials was, with certain limitations, left to legislative discretion, and fixed at amounts correspondingly small. It was the period of small wages, cheap living, and limited opportunities and still more limited means. Sincé that period all salaries and compensations have been greatly increased, except that of state superintendent. Then there were only abou.t 80,000 children of school age within the state. Now there are over 600,000. Then public instruction was confined mostly to the common schools. Now there are 190 high schools in the state, and all or nearly all are engaged in fitting students to enter the regular courses in colleges and the university. Besides, there are five normal schools engaged in fitting students especially for the work of teaching. Then the school buildings were frequently rude and uninviting. Now they are mostly comfortable and commodious. Then the value of public school property in the state was probably less than $50,000. Now it is over $10,000,000, besides the state university. In 1851 there was raised by taxes for public school purposes only $43,568.31, and there was disbursed for such purposes less than $92^000, and three years before such disbursement was probably not much more than half that amount. Now there is annually disbursed for such purposes more than $4,000,000, besides what is paid to the
While the section of the constitution cited prohibited the legislature from increasing the compensation of that officer beyond the amount named, yet it expressly authorized them to increase his duties and enlarge his powers and responsibilities ad libitum. This authority of the legislature has been from time to time freely exercised by especially enjoining new duties and imposing new and more onerous responsibilities. Sec. 166, R. S., as amended. To perform such duties and discharge such responsibilities in a satisfactory manner in a state with such a heterogeneous populartion, and to keep our public schools abreast of the advanced thought and moral standards of the times, not only requires the requisite learning, but large administrative experience and an especial adaptation to the work. Such a man will readily command a salary very much larger than the limit thus fixed by the constitution. True, the high honor of being at the head of such a department naturally has its attractions, but that can hardly be relied upon to secure the requisite talents. Besides, there are other fields of equal attractions for such a man.
It is contended, in effect, that the legislature, impressed with the inadequacy of the compensation of the state superintendent as fixed by the constitution, appropriated to him the $1,000 as and for clerk hire, and the $1,500 as and for traveling expenses, mentioned in the foregoing statement, with a design that he should convert the same to his own use as paid to him in monthly instalments, regardless of whether he paid out any money or incurred any liability by reason of such, expenses or clerk hire. Manifestly, whatever he may retain from either of those amounts over and above what he may actually expend or become personally liable for, must be regarded as so ' retained by vir
But the section of the constitution cited does not contemplate that the state superintendent shall perform all the services and be chargeable with all the responsibilities of his office or his department. On the contrary, it expressly declares that “ the supervision of public instruction shall be vested in a state superintendent, and such other officers as the legislature shall direct.” Sec. 1, art. X. This left the legislature free to prescribe such assistants and clerks as may be deemed essential. The office of assistant superintendent was created many years ago.
It remains to be considered whether the statutes men
The power of the legislature to thus provide assistants and clerks in the office and department of the state superintendent, if not expressly given in the constitutional provision quoted, is certainly nowhere prohibited; and it is a' maxim, in construing a state constitution, that the legislature is authorized to exercise any and all legislative powers not delegated to the general government nor expressly nor by necessary implication prohibited by the national or state constitution. While such legislative power is sufficiently broad to authorize the payment of such employees, clerks, and assistants, and such expenses, from the public treasury, in the manner prescribed, yet it gives no authority for the increase of the compensation of the state superintendent under the guise of clerk hire performed by himself or not at all, nor for traveling expenses never made or incurred.
An argument is sought to be based upon the precedent in the respective offices. While such an argument may have weight in construing a doubtful or ambiguous provision, yet it has no force as against the plain language of the clause in question. A customary violation of the plain language of the law gives no authority for continuing such violation.
It is claimed that the legislature had the exclusive authority to determine in advance the amounts of money the superintendent should expend during each year for such
There are several answers to this argument. It would give to the legislature the same power over a subject upon which it is forbidden to act at all that it would have over a subject upon which it is expressly authorized to act or left without any restriction. From the very nature of things, legislative discretion can never extend beyond the limits of legislative power, and hence never exists as to any subject, or any phase of any subject, upon which the legislature is prohibited from acting. Again, the legislature nowhere undertakes to appropriate any sum to the state superintendent personally, aside from his salary, hut merely to reimburse him for moneys expended in travel, or to pay him for liabilities incurred for such clerk hire. The compensation for such clerk hire would not be drawn from the treasury in advance, but, at most, would only “ be payable monthly, at the end of each month, for the service rendered during such month.” Sec. 171, R. S.
Again, the defendant, as the secretary of state, is made by the constitution “ ex officio auditor ” of the state. Sec. 2, art. YI, Const. As such, he is expressly required to examine, determine, and audit the claims of all persons against the state; keep a record of all accounts audited by him, showing the name of the claimant, the amount claimed, the amount allowed thereon, the number, date, and amount of the warrant therefor drawn. Sec. 144, R. S. All accounts and claims against the state, when payment thereof is provided by law to be paid out of the state treasury, and the
For the reasons given, the demurrer to the -complaint is overruled, with leave to answer within twenty days.
By the Court.— Ordered accordingly.