MYERS v. ENGLISH, STATE TREASURER, 9 Cal. 341

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This case was decided at the January" Term, and on account of the great importance of the principle involved, a re-argument was had, and the subject ably discussed by the learned counsel for the plaintiff. The fifteenth

section of the sixth

article of the Constitution of this State provides that the Judges of the Supreme and District Courts shall, severally, at stated times during their continuance in office, receive for their services a compensation, to be paid out of the treasury, which shall not be increased or diminished during the time for which they shall have been elected!

It is insisted by the learned counsel for the plaintiff that this provision of the Constitution, taken in connection with the statute fixing, in advance, the amount of the salary of a Judge, and the stated, times at which that salary shall be paid, is, in fact, an appropriation of so much money in the treasury for that purpose; and that, therefore, no further appropriation is required by act of the Legislature, nor can that body defeat the payment of the prior appropriation made by the Constitution, so long as there is any money coming into the treasury. The twenty-first

section of the fifth

article contains the same provision, in reference to the salaries of the Governor and other officers of the Executive department, except that it is not stated in so many words, that the salaries shall be paid out of the treasury. The twenty-fourth

section of the fourth

article provides that: “ The members of the Legislature shall receive for their services a compensation, to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take effect during the term for which the members of either house shall have been elected. The only difference between this hlause and those relating to the compensation of the Judges and executive officers, is, that the compensation of members of the Legislature cannot bo increased, while it may be diminished, during the term.

But this difference cannot constitute any distinction in these provisions, in reference to the question of prior constitutional appropriation. We can see no difference in the principle involved. If the Constitution, taken in connection with the statute fixing the amount of the salary of a Judge, and the stated times at which it must be paid, makes the appropriation for the payment of the salary, then it does the same thing for the compensation of the officers of the executive department, and of members of the Legislature.

The provision of the Constitution is substantially the same in reference to these classes of officers. The amount of the compensation is fixed by prior law, and unchangeable, by subsequent act, (except as before stated,) in all the cases; and the fact of appropriation, by the Constitution itself, must exist as to all, or none. It is true that the provision in reference to the compensation of the executive officers doesmot state that the same shall be “paid out of the treasurybut this is the palpable meaning, and this omission is fully supplied by other provisions of the Constitution.

If these views be correct, and there is no substantial difference in the cases stated, and the appropriation by the Constitution, if it exist at all, applies to all, or none, then it follows that no legislative appropriation would be necessary for much the larger portion of the ordinary and regxilar State expenses. That provision of the Constitution which says no money shall be drawn from the treasury but in consequence of appropriations made by law, would then be comparatively useless.

But if the position contended for by the able counsel of plaintiff be true, then it would, in principle, equally apply to other cases. As for example : where an office is created by the Legislature, and the salary fixed at a specific sum, payable at stated times, no subsequent appropriation by the Legislature would be required, so long as the law creating the office remains unchanged.

The legislative will, having been already constitutionally expressed, that the office shall exist, that the officer shall be paid a given sum. at stated times, what use could there be in making any express appropriation, in this case, if such appropriation can be dispensed with in any case ?

An act of the Legislature, passed in pursuance of the Constitution, is as much the will of the people as a constitutional provision itself. The only difference between the two cases is, that they are changeable in different modes; but so long as they remain unchanged, they are equally the expressions of the public will, in the contemplation of our theory. But if we concede the principle contended for to be true, for the sake of the argument only, then it presents very serious difficulties in reference to its practical application.

It must be evident that if we could suppose that the legislative department should be so partial and unjust as to withhold the necessary appropriations for the judiciary, while the other officers of the State were paid their fixed salaries, it could only be upon the ground of hostility to this department, and a desire to bend its decisions to the views of the Legislature. If that body desired to accomplish this end, it would not seek to do this by withholding the pay of District Judges, but would withhold the appropriation for the salaries of members of this Court.

In such a case, how could we enforce our demands upon the State Treasurer ? We could not decide in our own cases, and the Constitution has made no provision for the appointment of special Justices. If, on the other hand, the Judges were placed on an equality with the other officers of the Government, and the same appropriations made as to all, then there could be no just complaint, on the ground of partiality or prejudice. So long as we are all placed upon an equal footing we must be content.

And to suppose that the Legislature would make so partial and unfair a distinction against this department, and in violation of its plain duty, is to suppose that which has happened but seldom in the history of our country. The learned counsel for the plaintiff has referred us to the decision of the Court of Appeals of the State of Maryland, in the case of Thomas v. Owen, (4 Maryland R., 190.) The Constitution of Maryland specified the amount of the annual salary of the officer; and there is, therefore, this difference between the two cases.

But we think it must be conceded that the decision is a case in point, and sustains, fully, the position taken, notwithstanding this difference. The principle involved is the same. The decision of the Court upon this point was unanimous, all the four Judges concurring. The Chief Justice, in delivering the opinion of the Court, says: “An opposite

interpretation would countenance this paradox, that a co-ordinate branch ef the government could stop its whole machinery by refusing to pay the salaries of those upon whom is devolved the discharge of the duties of the other branches.” It is very true that the Legislature possesses the power to stop the whole machinery of government, whenever it is willing to take the responsibility of doing so. That body might repeal all the existing laws, and. leave the people of the State practically without government for a time.

So the Legislature, under the Constitution of this State, at one session, can fix the compensation of members at the succeeding session; and this compensation, though merely nominal, cannot be increased by the incoming Legislature. The Legislature has the power to repeal all existing revenue laws, and thus leave the State treasury without funds. The Legislature has also the power of taxation to the extent of the value of all the property in the State. But, with all due deference to the learned and distinguished jurists who decided the case of Thomas v. Owen, we are compelled to arrive at a different conclusion.

We think the power to collect and appropriate the revenue of the State is one peculiarly within the discretion of the Legislature. It is a very delicate and responsible trust, and if not used properly by the Legislature at one session, the people will be certain to send to the next more discreet and faithful servants. It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the Courts have no means, and no power, to avoid the effects of non-action.

The Legislature being the creative element in the system, its action cannot be quickened by the other departments. Therefore, when the Legislature fails to make an appropriation, we cannot remedy that evil. It is a discretion specially confided by the Constitution to the body possessing the power of taxation. There may arise exigencies, in the progress of human affairs, when the first moneys in the treasury would be required for more pressing emergencies, and when it would be absolutely necessary to delay the ordinary appropaiations for salaries.

We must trust to the good iaitb and integrity of all the departments. Power must be placed somewhere, and confidence reposed in some one. The learned counsel for the plaintiff insists that we erred in the former opinion, in saying, “ That provision of the State Constitution which prohibits the passage of any law impairing the obligation of contracts, relates solely to contracts between individuals, not to contracts between individuals and the State.” The learned counsel has referred us to several leading cases, and among them to the case of Fletcher v.

Peek, (6 Cranch, 87.) The decision of the Supreme Court of the United States, upon a constitutional point, is binding and conclusive upon this Court. But while this is true, the reason given for the decision we are at liberty to doubt. In that case, Chief Justice Marshall says : “ The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to ro-assert that right.

A party is, therefore, always estopped by his own grant.” With the utmost deference for the opinion of the distinguished jurist, I am compelled to doubt whether he placed the decision upon the proper ground. I concede that a grant is an executed contract; but, with due respect, I submit that it has no existing obligation to be impaired. It has accomplished all that the parties intended, and therefore the obligation has ceased. The obligation of an executed contract is an element that was, and is not. The executed grant accomplished two finished purposes. 1. The extinguishment of the title of the grantor. 2.

The vesting of the title in the grantee. These two purposes being accomplished, the grantor has no more right to the thing granted, than he has to other property, to which he never had any title. But this want of present right does not arise from the estoppel of the grant, but because the title in fact passed from the grantor to the grantee.

The title, by the grant, was extinguished in one, and vested in the other party. “ An estoppel,” says Lord Coke, “ is when a man is concluded by his own act or acceptance, to say the truth.” And when A conveys land to B by a valid conveyance, he is not allowed to reclaim the estate because he is estopped, but because he has no existing title to it. Estoppels being odious, because they will not permit a man to speak the truth, the law will not base a conclusion upon that ground, when it can find a sufficient ground that is consistent with the truth.

The distinguished Chief Justice says, very truly: “ Conveyances have been made; those conveyances have vested legal estates, and, if these estates maybe seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact.” Mow, I can see no difference, in principle, between the right of the State to seize property she has once validly conveyed, and her right to seize property to which she never had any title. The question is as to her existing title, not as to the title she once had.

If she has no existing title, then the seizure is a pure violation of vested rights;- and whether those rights became vested by her act or by the act of another, they are equally vested and equally protected, because they are vested rights. A man may have a vested interest in property that he never acquired by an executed contract; and still he is protected as well as if he had so acquired it.

I cannot see why the Legislature should be prohibited from taking the property of an individual because he purchased of the State, while the property of another individual is not thus exempt, because he acquired it by his own labor. And if the latter is protected by the Constitution, it must be upon a principle equally applicable to the first; that is, upon the ground of vested right, and not upon the ground that the obligation of the contract would be impaired. Under the views we take we still adhere to the position stated in the former opinion.

That provision of the Constitution refers to contracts between individuals. It could not refer to contracts between individuals and the State, because the State cannot be sued. The provision is general, and must embrace executory contracts ; and, therefore, if it was intended to apply to the State at all, it must have embraced those contracts that have obligations to be impaired. We must adhere to our former decision. Judgment affirmed.