Airy v. People

Decision Date20 April 1895
PartiesAIRY v. PEOPLE.
CourtColorado Supreme Court

Error to La Plata county court.

James P. Airy was convicted of failing to pay into the county treasury fees collected by him for official services, and brings error. Reversed.

Prior to the year 1891, in this state, the only compensation given to county and precinct officers, with the exception of county assessors, was the fees prescribed by the legislature, and collected by such officers in the discharge of their official duties. In response to a general demand of the people for the substitution of the salary for the fee system, and for a reduction of the fees to be collected by such officers, the Eighth general assembly passed two acts.--one relating to fees, the other to salaries. The salary act is the one in question here, but the nature of the objections urged against it is such that both must necessarily be considered in this opinion in order to make clear our position. The titles of these acts, being material to the discussion which will follow, are given here in full. That of the former is 'An act concerning fees, providing penalties for violation of this act, and to repeal all acts and parts of acts in conflict with the same.' Sess. Laws 1891, p. 200. That of the latter is 'An act to provide for the payment of salaries to certain officers, to provide for the disposition of certain fees, and to repeal all acts inconsistent therewith.' Id. p. 307. By the former act, all the counties of the state were divided into five classes according to population as ascertained by the federal census of the year 1890. The fees prescribed under each class are different from the fees under any of the others, and a material reduction in the amount of charges was made from that which theretofore prevailed. By the latter act, salaries were provided for district attorneys, and for county and precinct officers named therein. Sections 4, 5, 6, and 19 to 25 thereof relate more particularly to the subject of fees than to that of salaries. Section 20 provides that the officers named therein, while receiving salaries, shall make to the chairman of the board of county commissioners a report in writing, under oath, on the first Monday of each month, of all the fees, commissions, and emoluments of their office, of every name and description whatsoever and of all necessary expenses of clerk hire and other expenses, for the month ending at the time of said report. Section 22 provides that the fees collected by the county officers shall be paid over to the county treasurer, and shall be kept by him in separate funds, and the salaries fixed by the act shall be paid out of said funds, and no others, upon warrant drawn upon the county treasurer to the credit of the officer entitled thereto. Section 24 provides a penalty for the failure of an officer to pay over to the county treasurer the fees so collected. The plaintiff in error in this case was elected county clerk and recorder of La Plata county in 1893, and entered upon the discharge of his duties as such in January, 1894. Up to the 7th day of May, 1894, he had collected as fees of his office $1,200. At no time did he make any report, as provided by section 20; nor did he pay over to the treasurer of the county any of the fees charged and collected by him, as provided for by section 22. For failure to comply with the two sections, the district attorney filed against the plaintiff in error an information containing two counts, the first of which charged him with the violation of section 20 in that he failed to make the report therein provided for the second count charged him with the violation or section 22, in that he failed to pay over to the county treasurer the fees of his office theretofore collected by him. A demurrer to the indictment was overruled by the court, and upon trial the defendant was convicted under both counts, and sentenced under each to confinement in the county jail for 15 days.

Russell & Ritter, H. B. O'Reilly, and Joseph C. Helm, for plaintiff in error.

Eugene Engley and Byron L. Carr, Atty. Gens., and H. T. Sale, F. P. Secor, Galbreath & Searcy, and Arthur Cornforth, for the People.

CAMPBELL J. (after stating the facts).

The defendant comes here from that sentence by writ of error, his assignments of error containing numerous specifications. He is represented here by different counsel; and, while they all argue that the salary act is unconstitutional, they do not altogether agree as to what provisions of the constitution are violated, nor are they in harmony as to the reasons therefor.

It is urged by one counsel that the act is in conflict with section 15 of article 14 of the constitution, (1) in that the principle of classification laid down therein was not observed; (2) because all provisions for fees and salaries must be included in one act, and this is not complied with in the act in question. By another counsel it is contended that the act violates the same principle of classification, and that, as it contains provisions for salaries and disposition of fees, it is in violation of section 21 of article 5 of the constitution, in that not only the body of the act, but the title, contains more than one general subject. All of defendant's counsel contend that on its passage through the senate the title of the bill and the bill itself were so amended as to change the original purpose of the bill as it was introduced in the house. The three sections of the constitution, therefore, to which our attention has been called, and the determination of which must decide this case, are: First, section 21 of article 5; second, section 15 of article 14; and, third, section 17 of article 5; and they will be considered in the order named.

The substance of section 21 is that no bill shall contain more than one subject, which shall be clearly expressed in its title. Section 15 is as follows: 'For the purpose of providing for and regulating the compensation of county and precinct officers the general assembly shall by law classify the several counties of the state according to population, and shall grade and fix the compensation of the officers within the respective classes according to the population thereof. Such law shall establish scales of fees to be charged and collected by such of the county and precinct officers as may be designated therein for services to be performed by them respectively; and where salaries are provided, the same shall be payable only out of the fees actually collected in all cases where fees are prescribed. All fees, perquisites and emoluments above the amount of such salaries shall be paid into the county treasury.' Section 17 is that no bill shall be so altered or amended on its passage through either house as to change its original purpose.

Let us consider the first objection in the light both of reason and authority. We concede that, when the legislature elected to treat of fees and salaries in two separate acts, it would be more consistent with its purpose, more logical in method, and more scientific in arrangement to observe this distinction throughout in both acts, and in these particulars to maintain the order into which the general subject thus naturally divides itself. But, desirable as it is to preserve an orderly arrangement and a scientific method in our statute law, yet if, in the enactment of laws, no provision of the constitution is violated by the legislature in selecting methods which flagrantly violate the sense of mathematical accuracy and scientific classification, this court must relegate to the legislature the determination of such questions, and uphold the constitutionality of such enactments. What, then, is the general subject of which the legislature under this salary act has treated? It is clearly the compensation of the public officers named therein. In providing for the compensation of public officers, it is competent for the legislature, not only to provide for their salaries, but also to provide the means whereby such salaries may be paid. Fees and salaries therefore, are clearly but branches or subdivisions of the general subject of the compensation of public officers. An act entitled 'An act to provide for the compensation of public officers' would certainly be broad enough and specific enough to embrace not only provisions for the amount of fees which they might collect and disburse, but also provide salaries for their services to be paid out of the fees collected. If this act had read 'An act to provide for the compensation of certain officers, to fix their fees, and prescribe their salaries,' we think that only one general subject would be embraced therein, and that is the compensation of public officers, and the first clause of the title would include the other two. The title of this act is one that relates to the payment of salaries and the disposition of fees. It is a fact of which we are bound to take judicial notice that, before this act was passed, there was upon the statute books legislation which authorized officers to collect fees for certain services which, in their official capacities, they performed. The title of this act, as it was passed, provides for the payment of salaries and the disposition of fees. But we think that the act itself might properly have embraced provisions regulating the disposition of fees to be collected by such officers, even though the title itself had not contained the latter clause. We can see no objection, therefore, to one act, containing provisions not only for the payment of salaries, but provisions, also, for the disposition of fees out of which such salary shall be paid; nor can we see any objection to including in the title references to fees as well as to salaries. By way of illustration, take...

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