Humbert v. Dunn

California Supreme Court May 3, 1890 No. No. 13647Published

Before: Paterson

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Holding. The court held that the act providing for the petitioner's salary constituted a valid appropriation under the state constitution, as the legislature clearly designated the amount and the fund for payment, even without using specific appropriation language.

Issues

Whether the act providing for the petitioner's salary constitutes an 'appropriation' under the state constitution.
Whether the failure to use specific 'appropriation' language renders the act invalid.
Whether the amount of the salary appropriation is sufficiently fixed and certain.

Disposition. demurrer overruled

Quotations verified verbatim against the opinion

“it is not essential to the validity of an appropriation that those words, or any of them, should he used, if the legislature has clearly designated the amount and the fund out of which it is to be paid.”

“when the legislature has clearly indicated its will as to the claim which is to be paid and the fund from which it is to be paid, the constitutional requirement is satisfied, and no particular form of words is essential”

Synopsis

Constitutional Law—Appropriation by Legislature — Official Salary — Mandamus. — The constitutional limitation that “ no money shall be drawn from the treasury but in consequence of appropriations made by law,” is designed only to secure to the legislative department the exclusive power of deciding to what purpose the public funds shall be devoted in each fiscal year, and no particular form of legislative words is required to make an appropriation valid. An appropriation of an official salary may be prospective, and payable monthly out of any money in the treasury not otherwise appropriated, at the time when the services are performed and the monthly payments become due, and such appropriation may be made in any form of words expressing the intention of the legislature to provide for the payment of the salary as it accrues. Mandamus will lie to compel the controller of state to issue his warrant in payment of a salary so appropriated in the act establishing the office to which the salary is attached.

Paterson, J. This is an application for a writ of mandate commanding the respondent, as controller of the state, to draw a warrant in favor of petitioner for the sum of two hundred dollars, claimed to be due the latter on account of salary as a member of the examining commission on rivers and harbors. The petition shows, in substance, that the petitioner is a duly appointed, qualified, and acting member of said commission; that, by virtue of his appointment, qualification, and acts as a member of said commission, there is due to him as salary for the month of November, 1889, the sum of two hundred dollars; that his claim was duly presented to the state board of examiners, and by them audited, allowed, approved, and ordered paid out of any money in [58]the state treasury not otherwise appropriated; that the respondent refused to draw on the treasury for the amount allowed.

The attorney-general, on behalf of respondent, has filed a demurrer to the petition, on the ground that it does not state facts sufficient to constitute a cause of action.

It is not claimed that the law is against the constitution or good policy; the only point made against the right of the petitioner to receive the salary due to him. under the provisions of the act is, that no appropriation has been made out of which it can be paid.

The act in question provides that “each member of said commission shall receive a salary of two thousand four hundred dollars per annum, payable monthly, and his traveling expenses while engaged in the performance of official duties. Said salary and expenses to he paid out of any money in the state treasury not otherwise appropriated.”

The question is, whether these provisions of the act constitute an “appropriation, ” within the meaning of that term as used in section 22, article 4, of the constitution, which provides that “no money shall be drawn from the treasury but in consequence of appropriations made by law.”

It is true, the usual formula, “ there is hereby appropriated the sum of ... . dollars out of any money in the state treasury not otherwise appropriated for the payment of salaries,” etc., is not found in the act, but the intention of the legislature to provide for the payment of the salaries of the commissioners as they accrued is clearly manifested in the language used: “ Each member .... shall receive a salary of two thousand four hundred dollars per annum, payable monthly,” and-it is “to be paid out of any money in the state treasury not otherwise appropriated.” There is nothing in this language indicating an intention to postpone the payment of the salaries of the commissioners until

Humbert v. Dunn

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