from the appeal cannot prevent the moral support which the rendition of the judgment may give to the other directors, or form the basis of an injunction against them, nor can it be invoked to prevent the respondent from committing a trespass against the appellant. Its only effect is to leave the parties in the same situation, with reference to the rights involved in the action, as they were prior to the rendition of the judgment. They still have, notwithstanding the appeal, the same right to assert, outside of the court, or in any other proceeding, their respective rights, as they had prior thereto. While this proceeding was pending in the court below, that court had no authority, by virtue thereof, to enjoin Dulin from assuming to act as a director, and, after it had adjudged that he had been duly elected one of the directors, there would have been a manifest inconsistency in enjoining him from acting as such director. The appeal from that judgment cannot confer upon Clugston any greater right to an injunction against Dulin than he had prior to its rendition. The court limited its action to ascertaining the result of the election, and did not grant any relief in the premises other than to confirm the election of Dulin, and to declare that Clugston was not elected. No other proceedings have been had or attempted in the court below upon this judgment, and the judgment itself does not contemplate or authorize any other proceedings, or any process to enforce it. The motion is denied.

Const. art. 3, § 35, provides that, "except for interest on [the] public debt, money shall be paid out of the treasury only on appropriations made by the legislature." Article 16, § 7, provides that "no money shall be paid out of the state treasury, except upon appropriations by law." Held, that Sess. Laws 1890-91, c. 84. § 27, providing that "the state examiner shall receive an annual salary of $2,000, and a contingent fund of not to exceed $1.400 for the incidental expenses of his office, which same shall be paid by the treasurer of the state in the same manner as other salaries and expenses of state officers are paid," passed in conformity to Const. art. 4, § 14, providing for the appointment of a state examiner, and that "his compensation shall be fixed by law," operates as an appropriation act, and it does not require any other legislation, or a special appropriation at each regular session of the legislature, to keep it alive.

Petition on the relation of Harry B. Henderson for a writ of mandamus to compel Charles W. Burdick, state auditor, to draw a warrant on the state treasurer in payment of relator's claim for salary as state examiner. Writ allowed.

Lacey & Van Devanter, for relator. Charles N. Potter, Atty. Gen., for respond

ent.

GROESBECK, C. J. This proceeding invokes the original jurisdiction of this court, and is submitted on the petition of the relator for the writ, and the demurrer thereto. The following facts appear from the petition: The relator is the duly and regularly appointed and qualified state examiner of the state of Wyoming, and was such during the entire month of April, 1893. On the 18th day of May, 1893, he presented to the auditor of the state his bill and voucher, duly verified, against the state, for the sum of $166.66, the amount of his salary as state examiner for the month of April last past, and demanded a warrant upon the state treasurer in payment of the same. The auditor disallowed said claim, indorsing thereon, as cause for disallowance, that there was no appropriation by the second state legislature with which to pay said salary for the said month of April, 1893. Under section 27 of the act providing for the office of state examiner, defining his powers and duties, prescribing his bond, and fixing his compensation, approved January 10, 1891, (chapter 84, Sess. Laws 1890-91,) it is provided that the state examiner shall receive an annual salary of $2,000, which sum shall be paid by the treasurer in the same manner as other salaries and expenses of other state officers are paid. The salaries of other state officers, except such as are specifically required by law to be paid quarterly, are allowed by the auditor and paid by the treasurer of the state monthly. It is alleged in the petition that, in and by said section 27 of the act referred to, the sum of $2,000 per annum is appropriated by the legislature and by law for the purpose of paying the salary of the state examiner, and so an amount of money sufficient to pay said salary due to the relator for said month of April, 1893, is in the treasury, and has been regularly appropriated by the legislature of the state, and by law, as required by the constitution of the state. The constitutional provision for this office is in the following words: "The legislature shall provide for a state examiner, who shall be appointed by the governor and confirmed by the senate. His duty shall be to examine the accounts of [the] state treasurer, supreme court clerks, district court clerks, and all county treasurers, and treasurers of such other public institutions as the law may require, and [he] shall perform such other duties as the legislature may prescribe. He shall report at least once а year, and oftener, if required, to such officers as are designated by the legislature. His compensation shall be fixed by law." Const. Wyo. art. 4, § 14. The act referred to, creating the office, (chapter 84, Sess. Laws 1890-91,) fixes the compensation in the fol

of legislation. To use the language of Justice Story, (volume 3, Comm. § 1342,) its purpose is to secure regularity, punctuality, and fidelity in the disbursements of the public money.' And, as said by Judge Tucker in his Commentaries, 'all the expenses of the government being paid by the people, it is the right of the people, not only not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money.' Such a provision, says the same learned writer, forms a salutary check, not only upon the extravagance and profusion in which the executive department might indulge itself, and its adherents and dependents, but also against any misappropriation which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sum he thinks proper, and would deem it sedition against him and his government if any account were required of him in what manner he had disposed of any part of them. Such is the difference between governments where there is responsibility and where there is none."" Thomas v. Owens, 4 Md. 225. This opinion, which has been much cited, then proceeds to show that the constitutional provision in that state, that the comptroller "shall receive” an annual salary of $2,500, | was the expression of the will of the people in their written constitution, and must be obeyed, as the fiat of their supreme will. The constitution of Maryland inhibited the legislature from diminishing the salary of state officers, and on this point the court say: "Were it not for such a provision, the whole government would exist only by permission of the legislature. It can only be carried on through the instrumentality of individuals, and their services can only be obtained by being paid for. The framers of the constitution and the people who adopted it, aware of this, determined not to submit the durability of their work to the caprice, passion, or prejudice which possibly might, at times of great excitement, triumphantly rule the action of the legislature, and therefore wisely did the work themselves by ingrafting in the organic law a provision for the protection of those who should be charged with its execution; in other words, they made the appropriation.”

In our state constitution, salaries provided for certain state officers, the governor, secretary of state, auditor, and treasurer, are temporarily fixed, "until otherwise provided by law," with the rule,-repeated in almost every instance where salaries are mentioned, -that such salaries shall not be increased or diminished during the period for which such officers were elected or appointed; and, in addition to this, there is the general rule prescribed that no law shall increase or diminish the salary of any public officer after his election or appointment. Article

3, 32. This was intended to secure offi cial independence, and to prevent the legis lature from being assailed by the demands of importunate officials, to the detriment of public business. The stability and permanence of the salaries of public officials were guarantied by the constitution, after once fixed, secure during the official term from legislative control. Board of Com'rs V. Burns, 3 Wyo. 704-718, 29 Pac. Rep. 894, and 30 Pac. Rep. 415. Although some courts seem to distinguish between salaries fixed by the constitution and those fixed by an unrepealed statute, it seems that this is a distinction more nice than wise. In either case, the people have given their assent to the measure,-in one method by their or ganic law, which they have accepted, adopted, and ratified by their votes, and in the other by their representatives in the legislature. The salaries are to be fixed by law, and all such officers, whether of the state, county, city, town, or school, "shall be paid fixed and definite salaries." Article 14, § 1, Const. Wyo. The law relating to the state examiner provides that he "shall receive" an annual salary of $2,000, and the constitution requires that his compensation shall be fixed by law, and shall be a fixed and definite salary, which shall not be increased or diminished after his election or appointment. It will be conceded that the second legislature could not have reduced his salary during his term, either by a direct act for that purpose or in an appropriation bill. It is equally clear that they could not take it away, directly or indirectly. An imperative direction to create the office is found in the constitution, and the same authority is bestowed in that instrument to fix the compensation. The first state legislature, in obedience to that mandate, did create the office, and fix the compensation of the officer. This law has not been repealed. If the constitution had fixed the salary, and the time and manner of payment, there would have been no doubt, under the great weight of authority, that this would have been an appropriation made by "law," as the supreme law had so provided, and an act of the legislature, it seems, would have been unnecessary. State v. Hickman, 9 Mont. 370, 23 Fac. Rep. 740; citing, in support of this proposition, Thomas v. Owens, 4 Md. 189; Green v. Purnell, 12 Md. 333; State v. Weston, 4 Neb. 216. In this case (State v. Hickman) the Montana supreme court say upon this point: "We do not know of any rule to the contrary where the same constitutional provisions exist which are embodied in the supreme law of the state. An illustration of the principles which are applied where salaries of the officers are not prescribed by the constitution, and the case of Thomas v. Owens, supra, is not followed, may be found in Myers v. English, 9 Cal. 348." And, again: "We cannot add anything to the discussion of this vital proposition. The

doctrines which were announced in Thomas v. Owens, supra, have been accepted for years without a question, and have remained inflexible under every test." In the California case (Myers v. English, 9 Cal. 348) the court declined to follow the ruling in Thomas v. Owens, but Field, J., did not concur with the other two judges in the opinion, although he did not expressly dissent. The court in the Montana case seems to think there was a difference in applying a direct constitutional provision providing for salaries of state officers and one made by a statute in force; but the California court held differently, and say: "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." And, further: "But, with all due deference to the learned and distinguished jurists who decided the case of Thomas v. Owens, we are compelled to arrive at a different conclusion."

The opinions of the California supreme court have not been consistent on this subject, as appears in the note to the case of Carr v. State, taken from 127 Ind. 204, 26 N. E. Rep. 778, found in 22 Amer. St. Rep. 638. In the case of McCauley v. Brooks, 16 Cal. 11, at page 28, the court announce this doctrine: "When the constitution, therefore, says that no money shall be drawn from the treasury but in consequence of appropriations made by law,' it only means that no money shall be drawn except in pursuance of law." This decision was evidently not in harmony with Redding v. Bell, 4 Cal. 333, and Myers v. English, 9 Cal. 348, and it was apparently overruled in Stratton v. Green, 45 Cal. 149, where the rule announced in Redding v. Bell was "preferred;" but the later cases in that state are in harmony with the case of McCauley v. Brooks, Proll v. Dunn, 80 Cal. 220, 22 Pac. Rep. 143, and Humbert v. Dunn, 84 Cal. 57, 24 Pac. Rep. 111. See State v. Kenney, (Mont.) 26 Pac. Rep. 197. In the case of Humbert v. Dunn the relator was a member of an examining commission on rivers and harbors, and asked for a writ of mandate commanding the comptroller of the state to draw a warrant in favor of relator for $200 for salary as a member of said commission for the month of November, 1889, the same having been presented to the state board of examiners, and by them audited, allowed, and approved, and ordered paid out of any money in the state treasury not otherwise appropriated; the comptroller having refused to draw his warrant therefor. The court say that the usual formula, "There is hereby appropriated the sum of dollars out of any moneys 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 was clearly manifested in the language used, which was that "each

member

shall receive a salary of two thousand four hundred dollars per annum, payable monthly," and that it was to be paid out of any money in the state treasury not otherwise appropriated; and it held that there was was nothing in such language indicating any intention to postpone the payment of the salaries of the commission until the next session of the legislature. In this case, as in the case of McCauley v. Brooks, it was held that it is not essential to the validity of an appropriation that the usual formula, "There is hereby appropriated the sum," etc., or any of them, should be used, if the legislature fixed the amount of the claim, and designated its payment out of a certain fund. In Campbell v. Board, etc., 115 Ind. 594, 18 N. E. Rep. 33, an act of the state legislature appropriating $200,000 for the erection of a soldiers' and sailors' monument, and providing a compensation for the commissioners and their secretary, was under consideration. It was held that the sum ap propriated must be applied to the structural work of the monument, excluding incidentas expenses and the compensation of the officers, and that these expenses and compensation could be paid under another statute, authorizing the auditor of state to draw warrants on the treasury for all moneys directed by law to be paid out of the treasury to public officers, or for any other object whatever, as the same become payable. The court say: "It is true, as claimed, that no money can be rightfully drawn from the treasury, except in pursuance of an appropriation made by law; but such an appropriation may be made impliedly, as well as expressly, and in general, as well as specific, terms. It may also be a continuing or fixed appropriation, as well as one for a temporary purpose or a limited period. The use of technical words in a statute making an appropriation is not necessary. There may be an appropriation of public moneys to a given purpose without in any manner designating the act as an appropriation. It may be said, generally, that a direction to the proper officer or officers to pay money out of the treasury on a given claim or class of claims, or for a given object, may by implication be held to be an appropriation of a sufficient amount of money to make the required payments. Ristine v. State, 20 Ind. 328." This case was affirmed in Henderson v. Board, etc., (Ind. Sup.) 28 N. E. Rep. 127. In State v. Weston, 6 Neb. 16, it was held that, as the provisions of the constitution of Nebraska were that no money could be drawn from the treasury except in pursuance of a "specific" appropriation made by law, there was no such specific appropriation made by a statute which provided for the compensation of an officer, or the incidental expenses of his office, and when they were to be paid, as the manner of payment and out of what particular fund they were to be paid was not mentioned, the statute being

silent in that respect. A ruling to the same effect may be found in State v. Kenney, (Mont.) 26 Pac. Rep. 388; and the syllabus to the case indicates that the constitutional limitation in Montana is about the same as that of Nebraska. The word "specific" is omitted in the provision in our constitution; but, if it were, not, the reasoning in the case of State v. Bordelon, 6 La. Ann. 68, seems to me to be clearer. It is said in the judgment of the district court, a view which was adopted by the supreme court: "Is the appropriation specific in the intent of the constitution? It is specific in the amount to be paid, two thousand five hundred dollars a year. It is specific in the person to whom it is to be paid,-one or the other of the named officers, as the case may be. It is specific as to the time when the money is to be paid,-in each year during two years. It is specific as to the purpose for which it shall be used, the maintenance of the Legion, [of the Louisiana militia] and certain other volunteer companies. It is specific as to the money out of which the same shall be paid, any moneys in the treasury not otherwise appropriated. In what other respects an appropriation could be constitutionally required to be specific has not been suggested by counsel, nor does it occur to the court. In the only sense, then, in which the words of the constitution can have any meaning, so as to distinguish a specific appropriation from any other appropriation, the present act seems to be as specific as it can possibly be made."

It was said in Reynolds v. Taylor, 43 Ala. 430, where the law fixing the compensation of marshal of the supreme court declared, "The annual salary of the marshal is two thousand dollars," and a general section of the Code provided, in effect, that the salaries of all officers are payable monthly, notwithstanding the fact that the legislature had made an appropriation in another and later act for such officer at the rate of $1,000 per annum, it was held, under the authority of a case decided 30 years previous, (Nichols v. Comptroller, 4 Stew. & P. 154,) that, in order to authorize the comptroller to issue his warrant on the treasury for the amount of the salary, it was not necessary that there should be a special annual appropriation by act of the legislature, where there was a general law fixing the amount of the salary, and prescribing its payment at particular periods; and the court observe: "We are not aware that this decision has been doubted from that day to the present time." It has been no unusual thing for a legislature to adjourn without making appropriations for the salaries of state officials, or some of them, either through intention or mistake. In Colorado it was held by the attorney general that a law fixing the salary of the adjutant general at $1,800 per year, payable monthly, the same as a general provision as to other state officers, constituted an approv.33P.no.3-9

priation, within the meaning of the constitution of that state, which closely resembles in this particular our fundamental law. This opinion says that "the case of People v. Spruance, 8 Colo. 530, 9 Pac. Rep. 628, might appear, from a casual reading, to be opposed to the proposition above, but a careful reading of this decision shows that it does not apply to any case of fixed salaries, such salaries being guarantied by the constitution." Rep. Atty. Gen. Colo. 1890-91, p. 60, followed by the next attorney general of that state, (Rep. 1891-92, p. 23.) The Indiana legislature failed to make any appropriation for the fiscal year ending October 31, 1888. The attorney general of that state held that a general act providing that the officers named therein should be entitled to receive and charge for their services as such officers the salaries, fees, and compensation allowed and set out in the act, and this and other statutes, either "expressly appropriated the sums named, or provided that the officer shall receive the sum named as his salary. thereby creating an appropriation by force of the language used," according to the rules laid down in the opinion deduced from the decisions of the courts. Rep. and Ops. Atty. Gen. Ind. 1888, p. 155. These views of the law departments of these states seem to have been accepted without question and without a struggle in the courts.

But we have a ruling in this jurisdiction, made at an early day, which is directly in point. The legislature had failed to make a direct appropriation for the transportation of criminals. The supreme court of the territory held that a general law providing that the county commissioners, when it became necessary to transport, or to transport and provide for, any idiot, lunatic, insane, blind, deaf, deaf-mute, or criminal to any eastern asylum, school, or prison, should apply to the governor for pecuniary or other aid in such case; and, if the governor approved the application, he was authorized to call upon the auditor for a warrant upon the treasurer, in favor of the board of county commissioners, sufficient for the purpose, and it should be placed in the hands of the county commissioners, who should be officially and personally responsible for the proper application of such funds, as far as they might be able, -was a sufficient authority to compel the auditor to audit the proper account for the same, and to compel the treasurer either to pay the account when audited, or to certify that there were no funds in the treasury to pay the same. Donnellan v. Nichols, 1 Wyo. 61. It was in effect held that the general statute met such emergencies as the one presented,-the failure of the legislature to appropriate moneys for such purposes in an appropriation bill. In the general appropriation act of the second legislature, making appropriations until March 31, 1895, which fails to provide for the salary