At the time the present constitution took éffect William Steele was adjutant-general of the state, the law theretofore in force prescribing of that officer that “ His salary shall be three thousand dollars per annum.” Pasch. Dig., art. 7143. He continued to hold that office up to January 28, 1879, but after August, 1876, only $2,500 per annum was appropriated by the acts making appropriations for the support of the state government, for the salary of the adjutant-general, and Gen. Steele, of course, received only the amount so appropriated. This suit was brought under authority of an act approved April 4,1881, authorizing the institution of suit against the state to ascertain “ what amount, if any, is due” him as adjutant-general between September 1,1876, and January 28,1879. The argument in support of the claim that Gen. Steele was entitled to $3,000 per annum during that period is, that the law fixing the salary at $3,000 continued in force under the present constitution, which says: “All laws and parts of laws now in force in the state of Texas, which are not repugnant to the constitution of the United States or to this constitution, shall continue and remain in full force as the laws of this state, until they expire by their own limitation, or shall be amended or repealed by the legislature.” Const., art. 16, sec. 48.
It is denied that the law fixing the salary at $3,000 was repealed by the acts making appropriations for the support of the state government, for it is said there is no express repeal, nor is there any manifest repugnancy in those laws. Reasons might exist for appropriating less than was known to be due, or the deficiency of the appropriation might be the result of mistake. It is not the policy of the law to leave the salaries of state officials to be fixed only where the appropriations are made for their payment. Hor is it consistent with constitutional requirements to allow the law declaring that the salary of the adjutant-general shall be $3,000 per annum, to be amended so as to make the amount $2,500, unless the section as amended “ be re-enacted and published at length.” Const., art. 3, sec. 36. These considerations tend strongly to' the conclusion that the failure of the legislature to make ade*204quate appropriations for the salary of the adjutant-general as fixed hy law, did not operate a repeal or amendment of that law, or defeat that officer’s right to the full salary as fixed by the statute.
On the-other side, reference is made to the constitution, sec. 44, art. 3, as follows: “ The legislature shall provide by law for the compensation of all officers, servants,' agents and public contractors, not provided for in this constitution, but shall not . . . grant by apprQpria,tion or otherwise any amount of money out of the treasury of the state, to any individual, on a claim, real or pretended, where the same shall not have been provided for by pre-existing law; nor employ any one • in the name of the state, unless authorized by pre-existing laws.” As the constitution is silent about the adjutant-general and his salary, and as no other law, previous to the Bevised Statutes, was enacted, under the constitution, fixing the compensation of the adjutant-general, it is said that the salary of that officer must be fixed by the appropriation acts. The constitution, it is said, adopted a system of reduced salaries, and it devolved on the legislature the duty of conforming the compensation of officers not provided for in the constitution to the same economical standard. This argument is not without force. But plainly in cases where the legislature failed to enact laws changing the compensation of officers whose pay was not specified in the constitution, that compensation remained as fixed by former laws. We are left to conclude that the legislature has simply been tardy in conforming the compensation of the adjutant-general to the standard of the constitution, or, on the other hand, to give to the appropriation acts a construction and effect not in accordance with the policy of fixing the compensation of officials by pre-existing law, as indicated in the section of that instrument last cited, and in contravention of the mode prescribed for the amendment of statutes. In our opinion, the latter alternative must be rejected, and the conclusion adopted that the law fixing the salary of the ádjutant-generaí at $3,000 per annum remained in force until the Bevised Statutes reduced the salary to $2,000. R. S., art. 4667
It is deemed unnecessary to notice the objections to the service further than to say that the court did not err in holding that the state was properly brought into court hy service on the governor and attorney general. Wheeler v. State, 8 Tex., 230; Chisolm v. Georgia, 2 Dall., 419-452. Bor do -we think it important to sa,y anything further in regard to the defense of estoppel, than that it was manifestly insufficient. The judgment is affirmed.
Affiehed.
[Opinion delivered June 2, 1882.]