Board of Com'rs of Converse County v. Burns

• Decision Date: 19 April 1892
• Citation: 3 Wyo. 691,29 P. 894
• Parties: BOARD OF COM'RS OF CONVERSE COUNTY v. BURNS
• Court: Wyoming Supreme Court

29 P. 894

3 Wyo. 691

BOARD OF COM'RS OF CONVERSE COUNTY v. BURNS

Supreme Court of Wyoming

April 19, 1892

3 Wyo 691 at 715.

Original Opinion of April 19, 1892, Reported at: 3 Wyo. 691.

Motion for rehearing denied.

GROESBECK C. J. MERRELL, J., concurs. CONAWAY, J., dissenting.

OPINION ON REHEARING.

(July 1, 1892.)

GROESBECK C. J.

Since the filing of the opinion in this case and the entry of judgment thereon, a motion for a rehearing was filed within the time prescribed by the rules of this court. At the suggestion of the court, counsel for defendant in error filed his brief used in the original hearing, instead of filing a new brief on the motion for rehearing. It was then understood that the motion would not be heard or set down for argument until a cause presenting the same constitutional question then pending before the supreme court of Pennsylvania should be decided by that court. The decision of the lower court in that state was directly contrary to the views expressed in the majority opinion of this court in this case, but it seemed to us that it was not in line with the decisions of the supreme court of that state. We have now this Pennsylvania case before us, (Guldin v. Schuylkill Co., 149 Pa. 210, 24 A. 171, decided May 16, 1892.) It is in harmony with our views. The plaintiff there was elected coroner of Schuylkill county at a general election held in 1889, and entered upon his official duties on the first Monday of January, 1890. At the time of his election and induction into office, the population of his county was much less than 150,000, as ascertained by the census of 1880. By the decennial federal census of 1890, taken during the first year of his official term, the county has a population exceeding 150,000. By an act of the Pennsylvania legislature passed before the election of the plaintiff, to carry into effect a constitutional pro vision, the coroner of counties having a population over that number, in common with other county officers, was to be paid a salary instead of fees. The provision of our constitution as to change in the compensation of a public officer after his election and appointment is as follows: "Except as otherwise provided in this constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment;" while the inhibition in the constitution of Pennsylvania omits, we believe, the first clause, "except as otherwise provided in this constitution." Our constitutional provision in this respect was borrowed from the Colorado constitution as originally framed and adopted. We do not see that this clause changes the situation. It is otherwise provided as to the extension of the terms of officers elected at the first state election, by adding the interval after their qualification and the beginning of the regular terms to such terms. Again, the provision might be applied to officers receiving fees instead of salaries, where there is no fixed or certain amount of compensation, but it does not seem to us that there is an exception as to county officers. They must be paid "fixed and definite" salaries by the terms of the constitution, and these words necessarily exclude the idea of a change in the salaries in the middle of an official year, or during an official term. The law regulating salaries of county officers does not assume to provide for a change according to the assessment of taxable property during an official term, or after the election of such officers; and it cannot be so construed, as every law must be so construed, if possible, as to be in harmony with the constitution, and not against its provisions. This we have done, as the act uses the same words as employed in the constitution, or those of similar import and equivalent meaning, and these must be not so enlarged as to make the act unconstitutional, either in its terms or in its...