Board of Commissioners of Weston County v. Blakely

• Citation: 123 P. 72,20 Wyo. 259
• Decision Date: 25 April 1912
• Docket Number: 664,665,666
• Parties: BOARD OF COMMISSIONERS OF WESTON COUNTY v. BLAKELY. BOARD OF COMMISSIONERS OF WESTON COUNTY v. NOLAN. BOARD OF COMMISSIONERS OF WESTON COUNTY v. QUEST
• Court: United States State Supreme Court of Wyoming

123 P. 72

20 Wyo. 259

BOARD OF COMMISSIONERS OF WESTON COUNTY v. BLAKELY.

BOARD OF COMMISSIONERS OF WESTON COUNTY v. NOLAN.

BOARD OF COMMISSIONERS OF WESTON COUNTY v. QUEST

Nos. 664, 665, 666

Supreme Court of Wyoming

April 25, 1912

ERROR to the District Court, Weston County; HON. CARROLL H PARMELEE, Judge.

The Board of County Commissioners of Weston County brought three separate actions against J. E. Blakely, John Nolan and J. B Quest, respectively, to recover from each certain money which had been paid upon a claim presented by them respectively as per diem compensation for time employed by them as County Commissioners in going to the county seat to attend regular and special meetings of the County Board, and in returning therefrom to their respective homes. A general demurrer to the petition was sustained in each case and the actions were thereupon dismissed. From such judgments the plaintiff prosecuted error. The other material facts are stated in the opinion.

Judgment affirmed.

James O. Marts, County and Prosecuting Attorney of Weston County for plaintiff in error.

The only point in issue is whether a County Commissioner is entitled to the per diem compensation of $ 5 for each day consumed in going to the county seat to attend a regular or special meeting of the board and in returning therefrom. It is contended on behalf of plaintiff in error, the county, that the statute providing the compensation of County Commissioners (Comp. Stat. 1910, Sec. 1180) does not authorize the payment of such per diem compensation for the time employed in going to and returning from board meetings. Boards of County Commissioners are quasi corporations, the body having a perpetual existence and remaining the same, being continued by members who succeed each other. (State v. Hancock County, 11 O. St. 183; Chapman v. Commissioners, 79 Me. 267; Comm. v. Read, 2 Ashm. (Pa.) 261; 11 Cyc. 380.) An individual commissioner cannot perform the duties of his office except as a component part of the board; he may assist in causing the board to perform its duties and exercise its corporate powers. Individually he cannot discharge the duties of his office. His individuality is merged in a corporate body, that is the Board of County Commissioners. No one member of the board can alone do or perform an act by which his county will be bound. (Jordan v. Osceola County, 59 Ia. 388, 13 N.W. 344; Commissioners v. Seawell, 3 Okla. 281, 41 P. 592; Bouton v. Supervisors, 84 Ill. 384; Gardner v. Dakota County, 21 Minn. 33; Miller v. Smith, 7 Ida. 204, 61 P. 824; Ry. Co. v. Comm's., 16 Kan. 302; Rankin v. Jauman, (Ida.) 39 P. 1111.) Wherever by statute a duty is imposed or power granted in relation to the office of County Commissioner, such duty is imposed or the power granted to the board, not to the individual commissioner. Section 1165, Compiled Statutes, 1910, is sufficient to sustain the contention of the county in respect to this compensation, since it prohibits a commissioner from receiving compensation for a longer time than four days at a regular session and two days at a special session of the board. Again, Section 1180, which refers to mileage, that is, allows actual traveling expenses in going to and returning from board meetings, seems to imply a denial of the right to compensation for the time so employed. Each commissioner receives an annual salary of $ 200, and that must be considered as intended to cover every service except the number of days of board sessions for which a per diem compensation is prescribed. (Bruner v. Madison County, 111 Ill. 11; Supervisors v. Ellis, 59 N.Y. 620; Van Sicklen v. Supervisors, 32 Hun, 62; Ewing v. Ainger, 97 Mich. 381, 56 N.W. 767; Cook County v. Wren, 43 Ill.App. 388; McCollom v. Shaw, 51 N.E. 488; Miller v. Smith, supra.)

William B. Ross, for defendant in error.

In none of the cases cited in the brief of counsel for plaintiff in error was the question here involved determined. The question depends solely upon the construction of the statute. It is clear that when a commissioner is engaged in traveling to and returning from a meeting of the board he is not employed upon his own business, and the business must be that of the public. Where counties are as large as in this state, and commissioners are selected from different parts of the county, often many miles distant from the county seat, it is not to be expected that they should spend several days each month going to and returning from the county seat without compensation. The mileage, or actual expenses provided by the statute, does not compensate for the time employed in going to and returning from the meetings. Such expenses would not be provided for except upon the theory that he was engaged in performing the duties of his office while so traveling. It is one of the duties of the office of commissioner to attend board meetings, and therefore the time employed in going to and returning from the meeting is time employed in discharging the duties of his office. The small annual salary was not intended to compensate for time spent in going to and returning from the place of the board meetings. If it was so intended it would be paid only to members who resided away from the county seat. It is submitted that under a reasonable and proper construction of the statute prescribing the compensation the commissioners are entitled to the per diem for the time necessarily employed in going from their homes to and returning from each regular and special meeting of the board.

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.

OPINION

POTTER, JUSTICE.

The same question is presented in these three cases and they were argued together. Each action was brought by the County of Weston in the name by which it is authorized to sue and be sued to recover from the defendant money alleged to have been illegally paid to him out of the county treasury as compensation for his services as County Commissioner from January 6, 1907, to December 31, 1908, inclusive. In each case a general demurrer to the petition was sustained, the plaintiff thereupon elected to stand upon the petition, and a judgment was rendered dismissing the action. The cases are here on error. From the allegations of the petition, which are substantially the same in each case, it appears that during the period above mentioned the defendant was a County Commissioner of said county, and that upon a claim presented by him and allowed by the Board of County Commissioners he was paid the amount sued for as compensation at the rate of five dollars per day for the time consumed in going from his home to the county seat to attend the regular and special meetings of the board, and in returning to his home from said meetings. There being no allegation to the contrary, it is to be assumed that the time for which such payment was made was actually and necessarily employed for the purpose stated, and we understand that fact to be conceded. We understand also and shall assume that such payment was made for only once going to and returning from the county seat on the occasion of each meeting attended by the defendant. Therefore the question to be decided is whether for the time so employed a County Commissioner is entitled to the per diem compensation allowed him by statute "for each day actually employed in the discharge of the duties of his office. "

The powers of a county as a body politic and corporate are exercised by a Board of County Commissioners consisting of three qualified electors. (Comp. Stat., Secs. 1068, 1162.) The counties of the state are divided into four classes according to assessed valuation of taxable property. In first and second class counties the board is required to meet at the county seat on the first Tuesday of each month, and in third and fourth class counties on the first Tuesday of January, April, July and October, and in a county of either class at such other times as may be required by existing provisions of law. It is further provided that the board in first and second class counties shall not meet oftener than once a month, and in third and fourth class counties not oftener than once in every two months, except for the purpose of providing for the drawing of jurors, or to comply with the law relating to the assessment, levy and collection of taxes, or when in their discretion it may be necessary for the transaction of urgent county business. (Id., Secs. 1163, 1164.) The statute also provides that "such commissioners may sit four days or longer at each regular session and two days at each special session, but shall not receive any compensation for any length of time over four days at regular sessions, and over two days at special sessions." (Id. sec. 1165.) The compensation of the commissioners is prescribed as follows:

"County Commissioners shall receive an annual salary of two hundred dollars, and in addition thereto, a per diem compensation of five dollars for each day actually employed in the discharge of the duties of his office, and his actual traveling expenses, not exceeding ten cents per mile for each mile actually and necessarily traveled in going to and returning from the meetings of the board, and no other compensation whatever." (Id. sec. 1180.)

The contention that the per diem compensation received as aforesaid by these defendants was illegally paid them is based mainly upon the proposition that the commissioners can only act for the county as a board and when assembled at a meeting of the board, and that one member of the board cannot alone act for and bind the county. The rule thus relied on is stated in the brief substantially as follows: That the individual commissioner cannot perform the duties of his office, except that as a component part of the board he may...