Baker v. Board of County Commissioners of Crook County

• Decision Date: 17 January 1900
• Parties: BAKER v. BOARD OF COUNTY COMMISSIONERS OF CROOK COUNTY
• Court: Wyoming Supreme Court

59 P. 797

9 Wyo. 51

BAKER v. BOARD OF COUNTY COMMISSIONERS OF CROOK COUNTY

Supreme Court of Wyoming

January 17, 1900

RESERVED questions from the District Court, Crook County HON. JOSEPH L. STOTTS, Judge.

The case and question is stated in the opinion.

Affirmed.

Nichols & Adams, for the plaintiff.

The lucrativeness of an office does not depend upon the amount of the compensation attached to it. The office of coroner is a lucrative office. (Ency. L., Vol. 13, 1192; Dailey v State, 8 Blackf., 329; Howard v. Shoemaker, 35 Ind. 111; Grd. Island Gas Co. v. West, 28 Neb. 852; McElhinney v. City, 32 Neb. 744. The contract in the case is in violation of Sec. 129 of the Crimes Act (R. S., § 5095) and therefore ultra vires. It is against public policy to permit the parties to enter into such a contract. See Greenhood Pub. Pol., 337, 338; 15 Law. Rep. Ann., 521; Mullaly v. N. Y., 3 Hun., 661; 62 N.Y. 636; McGregor v. Logansport, 79 Ind. 166; Ft. Wayne v. Rosenthal, 75 id., 156; 39 Am. Rep., 127; Macon v. Huff, 60 Ga. 221.)

J. D. Skaggs, Co. Attorney, for defendant.

The office of coroner is not a lucrative one. The perquisites of the office are very small, and practically nothing in small counties. In order for the contract complained of to violate the statutes, the coroner must have the power of appointment, and the power to let contracts, which he has not. The contract does not concern public buildings. The interest implied in the last clause of the statute is such an one as would enable the officer to receive drawbacks, etc. The office of coroner will not conflict with that of county physician. The statute does not at all apply to the contract under consideration. Counsel cited on various questions discussed, the following: (Hays v. Alrichs, 22 So. 265; 32 P. 237; 36 id., 780; 37 N. W., 936; High on Inj., 763-785, 786, 797; Steffens v. Moran, 36 N. W., 76).

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

This case is before us upon a question reserved by the judge of the District Court of Crook County. The question is as follows: "Can the Board of County Commissioners legally enter into a contract with, or employ, the coroner of the county (who is a practicing physician) for a period of one year, at a reasonable compensation, to furnish medicine and medical attendance for the poor and paupers of the county?"

The question as to the power of the board arises mainly upon the construction of Sec. 5095, Revised Statutes, which is as follows: "Any State officer, county commissioner, trustee of any school district, mayor, councilman, or trustee of any city or town, or any person holding any appointing power, or any person holding a lucrative office under the laws of this State, who shall, during the time he may occupy such office or hold such appointing power and discharge the duties thereof, be interested, directly or indirectly, in any contract for the construction of any State building, courthouse, schoolhouse, bridge, public building, or work of any kind, erected or built for the use of the State, or any county, school district, city or town in the State, in which he exercises any official jurisdiction; or who shall bargain for or receive any percentage, drawback, premium, or profits, or money whatever on any contract or for the letting of any contract, or making any appointment wherein the State, or any county, school district, city or town, is concerned, shall be fined not more than five thousand dollars nor less than one hundred dollars."

The plaintiff contends that the office of coroner is a lucrative office, and that, by virtue of the statute, the incumbent is disqualified from entering into any contract with the county. The defendant upon the other hand insists that the office of coroner is not a lucrative office, and that, even if so, the contract in question does not come within the purview of the statute, and is not illegal.

What is a lucrative office seems to be very well settled upon reason and authority. Mr. Mechem says: "An office to which salary, compensation, or fees are attached is a lucrative office, or, as it is frequently called, an office of profit. The amount of the salary or compensation attached is not material. The amount attached is supposed to be an adequate compensation and fixes the character of the office as a lucrative one, or an office of profit." Mechem on Public Officers, Sec. 13. Dailey v. State, 8 Blackf. (Ind.), 329; 13 Am. Eng. Ency., 1192. The coroner is a county officer, elected by the people, and by Sec. 1183, Rev. Stat., it is provided that he shall receive, for holding an inquest, five dollars per day and mileage at the rate of ten cents per mile, and for performing the duties of sheriff, when the latter is disqualified, the same fees as may be allowed the sheriff. We think, therefore, the office is, very clearly, a lucrative one, under the statute, and the fact that the compensation may not ordinarily be large does not affect its character in this respect.

No such office as that of county physician is provided for by our laws, but the employment of a physician by the various counties to render a certain class of services by the year and for an agreed annual compensation is a common, and perhaps uniform, practice in the State. The statutes recognize such employment, and the person employed is referred to in the statutes as county physician. Rev. Stat., Secs. 1260, 4300, 4885. As the county physician is not legally an officer of the county, no question is presented of incompatibility of offices which would forbid the incumbency of the two positions of coroner and county physician by the same person.

The intent and purpose of Section 5095, above quoted, we think is reasonably clear. The first clause forbids any person holding any appointing power, or any lucrative office, to be interested in a certain class of contracts. The class of contracts forbidden is such as are "for the construction of any State building, courthouse, schoolhouse, bridge, public building, or work of any kind, erected or built for the use of the State, or any county, school district, city or town, in the State, in which he exercises any official jurisdiction." It is evident that the character of services contemplated in the employment of a physician is not included in any of the enumerated contracts which this clause prohibits, and the words, "or work of any kind," must be restricted to works of like kind with those specially enumerated. The rule of construction is that when a specific enumeration concludes...