123 Ala. 577 | Ala. | 1898
The petition upon which the court awarded the writ of mandamus alleged the following state of facts: The petitioner Denson was regularly elected circuit judge at the general election in August, 1898, and qualified as such. That on the 24th of April, 1899, he, as judge, opened and organized the circuit court of Elmore County, and was engaged in discharging the duties of his office, when on that day he received information of the serious illness of his mother which resulted in her death and burial on the 27th day of April, 1899. That he left his court after having arranged with the Governor for the appointment of a special judge to continue the holding of the court for the week. The Auditor declined to issue to him a warrant for the full amount of his salary for the month of April, but deducted therefrom the sum of $17.35 for the five days he was absent from the court, it being $3.47 per diem for each day’s absence and one-half of the salary or compensation per day allowed the petitioner by law. The justification for this deduction by the Auditor was claimed by him under the provision of sections 929 and 930 of the Code. The fact also appears from the petition that Denson filed with the Auditor on the 6th day of May his affidavit stating the fact of his absence, ili
The facts alleged in the petition which we have summarized above, were admitted to be true by the respondent White, Auditor; and the trial court upon final hearing overruled the demurrers to the petition, and rendered a judgment awarding a peremptory writ of mandamus against the Auditor, commanding him to draw a warrant on the State Treasurer in favor of Denson for the sum of $17.35.
The correctness of this judgment involves the constitutionality of section 930 of the Code. If that section is not violative of some/clause of the constitution of the •State, then confessedly the action of the Auditor in deducting the amount from the salary was right, and it was his duty to have done so. On the other hand, if the contention of the petitioner, that the authority conferred by this section upon the Auditor by the General Assembly was an exercise of their legislative prerogative in violation of the prohibition of any clause of the constitution, he true, that the petitioner was entitled to have the Auditor to draw a warrant for the amount upon the treasurer in his favor.
There are two sections in the constitution bearing upon the question, and their construction is involved in its determination. The first of these, we will consider, is found in Art. VI, section 10, and reads as follows : “The judges of the Supreme Court, circuit courts and chancellors shall, at stated times, receive for their services a' compensation which shall not be diminished during their official terms; but they shall receive no fees or perquisites, nor hold any office (except judicial offices) of profit or trust under this State or the United States, or any other power, during the term for which they have been elected. ”
The powers of the government of this State are divided into three distinct departments, each of which is confided to a separate body of magistracy; those which are legislative, to the General Assembly, those which are executive, to the Governor. Secretarv of State, State Treasurer, State Auditor, Attorney General, Superintendent of Education and a sheriff for each county; and
The duties imposed by law upon each of these separate bodies of magistracy are distinctly different and independent of those imposed upon the other. Each department, though co-ordinate in that the discharge of the functions of each with reference to the exercise of the governmental powers conferred, is necessary to the well-being of the State, is independent of the other. Neither has the right to assume the prerogatives of the other, and to do so would be a bold usurpation of power unwarranted by the constitution, and would doubtless be and should be resented by the people by whom the powers were conferred. The incumbents of each of the offices making up the three bodies of magistracy are amenable to and can be made to answer only to the people for the manner in which they discharge the duties of their respective offices so long as they do not offend those wise provisions of the constitution and the statutes for which they may be impeached. It cannot be gainsaid successfully that such a system, by which the heads of the various great departments of government are made independent the one of the other, is not only Avise; but the necessity for its recognition and maintenance is one of the elements of stability in all Republican forms of government. We do not Avish to be understood as intimating that this independency is Avithout limitations, or that the conduct of the officer of one. department may not be laAvfulW controlled and corrected by those of another department in cases where the poAver is conferred by lavv for such revision. But where no such power is conferred, the officers of one being the equal of those of the other department, his conduct cannot be a matter of official concern of the other, but the people must be looked to, to right whatever wrong, imaginary or otherwise, may have been done. It was manifestly the purpose of the constitution makers in the
This brings us to the consideration of the other provision of the constitution bearing upon this question. It is found in Art. IY, section 48, and its language is as follows: “It shall be the duty of the General Assembly to regulate by law the cases in which deductions shall be made from the salaries of public officers, for neglect of duty in their official capacities, and the amount of such deductions.”
For the purpose of giving effect to this provision as to circuit judges section 928 of the Code was enacted which provides: “If any circuit judge fails or neglects to attend any regular term of any circuit court which he takes upon himself to hold, or after attending, absents himself before the time fixed for final adjournment, unless the business is sooner disposed of, he forfeits the sum of. twenty-five dollars for each and every day he. is thus absent or fails to attend, to be deducted by the auditor from his salary; the absence or failure of such judge to be certified to the auditor by the clerk within ten days.
The only acts of a circuit judge constituting a neglect of duty in his official capacity under this section are his failure or neglect to attend any regular term of any circuit court which he takes upon himself to hold, or after attending absents himself before the time fixed for final adjournment, without disposing of the business of the court. As to whether such failure to attend or the absenting himself without disposing of the business after attending is so- firmly declared by the statutes to be a neglect of official duty as to work a forfeiture of $25 for each and every day he is absent or fails to attend without reference to what may have been -the cause of such failure or cause for absenting himself which, if he was permitted to make known, would show no' neglect of duty under the provision of the constitution quoted above, it is unnecessary here to decide. And so, too, as to whether the statute does not go beyond the terms of the provision of the clause of the constitution in making those acts per se a neglect of official duty, and not affording the judge a right to be heard before he is deprived of his compensation, which we have shown is a property right,- under our view of the issues made in this case does not arise. Nor whether the succeeding section (924) can be held to be curative of these defects,'if they exist, which provides that the deduction must not be made, if the judge makes an affidavit that his failure to attend or his absence was on account of sickness of himself or family or inevitable accidents, etc., we will not here determine. The record shows that the petitioner in this case complied fully with the latter section, and that the Auditor made the deduction under section 930 of the Code, since if the deduction had been made under section 923, the Auditor,, in order to have complied with its provision, would have been compelled to make a deduction of $25 for each da^ instead of $3.47 per diem. The provisions of the statute, in this respect, being mandatory, the deduction made by him cannot be sustained under it. It is, therefore, the constitutionality of section 930, as Ave have heretofore said, that is assailed,- for it is only
The judgment of the city court is affirmed.