Boyers v. Crane

Brown, J.

By the constitution, the office of Secretary of State was to commence on the 4th day of March, 1863, and continue for the term of two years, at a salary of 1,300 dol-'-lars per annum. And by the ordinance of February 19th, 1863, the sole object of which was to put the government into operation, the said office, though in fact beginning on the 20th day of June, 1863, was to continue and be computed from the 4th of March, 1863; and so the term of two years expired on the 4th of March, 1865, instead of 1866, as it otherwise would have done but for said ordinance. And the question is, if the term of office ip to be computed from the 4th of March, 1863, to fix its duration and end, shall or not, the term be computed from the same day to fix the salary prescribed for that term? If the language in the same sentence is to be construed to have the same meaning, whether in ascertaining the duration of the office, or the *179 computation attached to it,'then it is very clear that the term of office is to be computed from the 4th of March, 1868, and the salary likewise.

It would look a little inconsistent for the State to say to the Secretary, you shall compute from March to eke out your official term, but you shall not compute from the same date to eke out your salary prescribed by the constitution, for the same term. In other words, that the same words in the same sentence, shall be used in a different sense when applied to the duration of your office, and the salary attached to it. Such a construction would be to blow hot and cold in the same breath, and illy comport with the dignity and fame of the new commonwealth.

The strict legal right of the Secretary to his whole salary would, therefore, seem clear and unquestionable, however exceptionable may be the policy of construction, terms and salaries; though the more excusable, as it would seem, in the ordinance under consideration, because it was temporary in its nature and not to be repeated: and results from the necessity and difficulty of starting a new government into life at the same instant, with different offices beginning and ending at different times, without the results of the contingency having been foreseen, or at least specially provided against; as doubtless would have been the case if the convention that framed both the constitution and the ordinance had intended a different meaning to be attached to the same words in the same sentence, when applied to different subjects.

The record in this case shows that the salary for the period controverted was actually settled and paid by the auditor, who is the proper officer to settle and adjust all claims against the State. And being so settled and paid the State is concluded by the act of her officer. 11 Leigh, 384 . And being so settled and paid, could only be judicially reviewed by a court of competent jurisdiction, and not by the legislature. Const. West Yirginia, art. 1, sec. 4.

Again, being a claim settled and adjusted between the parties, and actually paid, it was a contract executed, and could *180 no more be violated by one party tban the other. Const. West Virginia, art. 11, sec. 1. Const. IT. S., art. 1, see. 2. Dartmouth College case, 4 Wheat.

By art. 4, sec. 1, const, of West Virginia, the legislative power is vested in the Senate and House of Delegates, and the style of their acts is required to be, “ Be it enacted, &c.” Now the joint resolution which forbids the Auditor to pay the Secretary the residue of his salary subsequent to July 1st, 1868, and which attempts to set off the amount so withheld, against the amount previously paid him, for the quarter preceding, is in conflict with all of these provisions of the organic law and is therefore void.

I am, therefore, of opinion to reverse the judgment of the circuit court and enter judgment for the petitioner.

The other judges concurred with Brown, J.

Judgment Reversed.