Board of Com'rs of Teller County v. Trowbridge

• Decision Date: 02 March 1908
• Citation: 95 P. 554,42 Colo. 449
• Parties: BOARD OF COM'RS OF TELLER COUNTY v. TROWBRIDGE, Dist. Atty.
• Court: Colorado Supreme Court

95 P. 554

42 Colo. 449

BOARD OF COM'RS OF TELLER COUNTY v. TROWBRIDGE, Dist. Atty.

Supreme Court of Colorado, En Banc.

March 2, 1908

Rehearing Denied May 4, 1908.

Error to District Court, Teller County; Jas. L. Russell, Judge.

Action by the board of county commissioners of Teller county against Henry Trowbridge, district attorney of the Fourth judicial district. From the judgment the county commissioners bring error, and the district attorney assigns cross-erros. Affirmed in part, and reversed in part, and remanded, with directions.

Campbell and Bailey, JJ., dissenting in part.

Harvey Riddle, for plaintiff in error.

C. D Hayt and Fred R. Wright, for defendant in error.

MAXWELL J.

By an agreed statement of facts two questions were propounded to the court below for solution: '(1) Is the district attorney of the Fourth judicial district entitled to $4,000 as the maximum limit of compensation as such district attorney for the year 1901, or is he entitled to the sum of $3,000 as such maximum limit of compensation? (2) Is such district attorney entitled to deduct from the fees of his office the amounts or any part thereof, necessarily incurred and expended by him as such district attorney for office rent, clerk hire stenographer, telephone, postage, letter files, and stationery?' The court found that the district attorney was entitled to the sum of $4,000 as the maximum limit of compensation for the year 1901, and was not entitled to deduct from the fees of his office any of the amounts incurred and expended by him for office rent stenographer, telephone, postage, letter files, or stationery, and rendered judgment accordingly.

The assignments of error of the county commissioners assail the judgment allowing the district attorney the sum of $4,000 as the maximum limit of his compensation, and the cross-errors of the district attorney assail the judgment disallowing the amounts necessarily expended by him for office rent, clerk hire, stenographer, telephone, postage, letter files, and sationery. Prior to 1891, district attorneys were paid a salary of $800 by the state and were allowed to collect and retain certain fees, provided by section 7 of chapter 38, Gen. St. 1883, being general section 1418. The county commissioners contend that by the act approved April 6, 1891, entitled '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' (Sess. Laws 1891, p. 307), it was provided, by section 2 thereof, that in districts presided over by one judge only, district attorneys should receive $4,000 and in districts presided over by more than one judge, district attorneys should receive $5,000, the surplus fees by him collected to be accounted for as therein provided, and that the section relating to salaries was amended by the act of April 11, 1899 (Sess. Laws 1899, p. 331, c. 134), so that the salary of the district attorney of the Fourth judicial district was fixed at $3,000 per annum, and therefore the court erred in allowing the district attorney a salary of $4,000 for the year 1901. The district attorney contends that paragraph 5, § 1, of the act of April 20, 1891 (Sess. Laws 1891, p. 221), repealed section 2 of the act of April 6, 1891, it being a later act of the same session, and that the act of April 11, 1899, is of no validity as to the question here presented, in that it is an attempt to amend a section of a law which had been repealed. The commissioners meet this contention by saying that paragraph 5, § 1, of the act of April 20, 1891, is itself of no validity, because the subject-matter of such paragraph is not embraced within the title of the act. The matter therefore resolves itself into this one question: Does paragraph 5, § 1, of the act of April 20, 1891, repeal section 2 of the act of April 6, 1891?

Section 21, art. 5, of the Constitution of Colorado, is: 'No bill * * * shall be passed containing more than one subject, which shall be clearly expressed in its title. But if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' It is the settled doctrine of this court that the above section of the Constitution of this state contains a mandatory declaration of an essential condition to the validity of legislative enactments, and that so much of any act as is not directly germance to the subject expressed in the title is without force. People v. Flemming, 7 Colo. 230, 3 P. 70; People v. Hall, 8 Colo. 485, 9 P. 34; In re Breene, 14 Colo. 401, 24 P. 3. The title of the act of April 20, 1891, is: 'An act to amend section seven (7) of chapter xxxviii of the general statutes of the state of Colorado, entitled 'Fees' the same being general section one thousand four hundred and eighteen (1418) of said statutes as the same was amended April 20, 1889.' The title of the act of 1877, of which section 1418, Gen. St. 1883, is a part, is: 'An act to fix and regulate fees chargeable by county precinct and other officers.' Gen. Laws 1877, p. 427. Section 7 of this act (Gen. Laws, 1877, § 1167) relates to the fees of district attorneys, and is entirely silent as to salaries of such officers, and therefore in its final analysis the question presented is: Does an act which purports to amend a particular section of an existing statute, the title of which relates to 'fees,' and the section attempted to be amended covering the subject of fees only, violate section 21, art. 5, of the Constitution, by incorporating therein a paragraph fixing the salary to be paid to the officer who receives the fees, upon the ground that the subject is not clearly expressed in the title, and is not germane to the subject expressed in the title? In other words, is the subject 'salary' directly germane to the subject 'fees'?

Salary: 'A periodical allowance made as compensation to a person for his official or professional services, or for his regular work,' Standard Dictionary. Fee: 'A payment for services done or to be done, usually for professional or special service, the amount being sometimes fixed by law or custom and sometimes optional.' Id. The distinction between salary and fees recognized by all the authorities is this: A salary is a fixed compensation for regular work, while fees are compensation for particular services rendered at irregular periods, payable at the time the services are rendered. Our Constitution recognized this distinction. Section 15, art. 14, Const. It is there provided for a classification of counties by population, for the purpose of establishing the fees to be charged by certain officers for services to be performed by them, and, where salaries are provided by law, the same shall be paid out of the fees collected. In Landis v. Lincoln Co., 31 Or. 424, 426, 50 P. 530, it is said: 'By the ordinary acceptation of the term 'fees,' as heretofore and now used in the statute, we understand it to signify compensation or remuneration for particular acts or services rendered by public officers in the line of their duties, to be paid by the parties, whether persons or municipalities, obtaining the benefit of the acts, or receiving the services, or at whose instance they were performed (Musser v. Good, 11 Serg. & R. [Pa.] 247; Tillman v. Wood, 58 Ala. 578), while the term 'salary' denotes a recompense or consideration to be paid a public officer for continuous, as contradistinguished from particular, services, and may be denominated 'annual or periodical wages or pay.' * * * Lexicographers and some authorities class 'salary' and 'wages' as synonymous. * * * But not so with the terms 'salary' and 'fees,' and they appear generally to be distinguished very much as indicated above.' In Cowdin v. Huff, 10 Ind. 83, 85, it is said: 'There are now, and were, at the adoption of our Constitution, at least three modes in use of compensating persons engaged in the public service, viz., fees, salaries, and wages. These modes are all different, each from the other, and the difference between them has been immemorially well understood. Fees are compensation for particular acts or services; as the fees of clerks, sheriffs, lawyers, physicians, etc. Wages are the compensation paid, or to be paid, for services by the day, week, etc., as of laborers, commissioners, etc. Salaries are the per annum compensation to men in official and some other situations. The word 'salary' is derived from 'salarium,' which is from the word 'sal,' 'salt,' being an article in which the Roman soldiers were paid.' See, also, Board v. Wasson, 74 Ind. 133; Seiler v. State, 160 Ind. 605, N.E. 922, 66 N.E. 946, 67 N.E. 448.

On principle and authority we are forced to the conclusion that the subjects 'salary' and 'fees' are not directly germane to each other. In the former opinion announced in this case, it was held that ...