Brookings County v. Murphy

• Decision Date: 21 May 1909
• Citation: 121 N.W. 793,23 S.D. 311
• Parties: COUNTY OF BROOKINGS, Plaintiff and appellant, v. P. J. MURPHY, County Auditor, Defendant and respondent.
• Court: South Dakota Supreme Court

23 S.D. 311, 121 N.W. 793 (1909)

COUNTY OF BROOKINGS, Plaintiff and appellant v P. J. MURPHY, County Auditor

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Brookings County, SD

Hon. George H. Marquis, Judge

Affirmed

Olaf Eidein

Attorneys for appellant.

Cheever & Cheever, G. A. Mathews, and Aubrey Lawrence

Attorneys for respondent.

Opinion filed, May 21, 1909.

SMITH, J.

This appeal presents the question of the constitutionality of the second proviso of chapter 207, p. 272, Laws 1903, relating to the salaries of county auditors in counties of this state having a population of 12,000 or over. By chapter 207, p. 272, Laws 1903, section 894 of the Revised Political Code, passed at the same session of the legislative assembly, was amended to read as follows:

“Sec. 894. Salaries—How Determined. The salaries of registers of deeds and county auditors shall be regulated by the value of the property in their respective counties as fixed by the state board of equalization for the preceding year, as follows: They shall be entitled to receive five mills on each dollar of the first one hundred thousand dollars; one mill on each dollar of all sums in excess of such last named sum and less than five hundred thousand dollars; one quarter of one mill on each dollar of all amounts in excess of said last named sum and less than one million five hundred thousand dollars; and one twenty-fifth of one mill on each dollar of all amounts ix excess of said last named sum; Provided, that in counties having a population not exceeding fifteen hundred or less the salaries of registers of deeds and county auditors shall be six hundred dollars per annum, and such salary shall not in any county exceed one thousand two hundred dollars; Provided, further, that in counties having a population of twelve thousand or over the board of county commissioners may in their discretion allow a salary not exceeding fifteen hundred dollars per annum to the County auditor only, which salary shall be paid quarterly by warrants on the special salary fund or on the county general fund.”

Section 6 of article 9 of the State Constitution is as follows:

“Sec. 6. The Legislature shall provide by general law for such county, township and district officers as may be deemed necessary, and shall prescribe the duties and compensation of all county, township and district officers.”

The respondent Murphy was elected auditor of Brookings county for a term of two years, beginning March 1, 1905, duly qualified and acted during said term. At its meeting in January, 1905, the board of commissioners of said county, acting under the authority of chapter 207, p. 272, Laws 1903, allowed to the county auditor a salary of $1,500 per annum. and such salary was thereafter paid to respondent during the said term of two years. Prior to and during said term said Brookings county had a population of over 12,000, and the valuation of the property in said county as fixed by the state board of equalization for the year 1904 was $7,311,464, and, as fixed by the state board fOr the year 1905, was $7,381,088. Prior to the beginning of this action, the plaintiff, Brookings county, by its state’s attorney, demanded of the defendant the sum of $600, claiming that the second proviso of chapter 207, p. 272, Laws 1903, under which the salary of $1,500 was paid respondent, is unconstitutional and void because it constitutes an unlawful delegation of legislative power to the board of county commissioners to fix the salary of $1,500; and, further, that no salary in excess of $1,200 per annum could be lawfully allowed or paid respondent by said county. It seems to be conceded by appellant’s counsel that, though the second proviso referred to may be void and unconstitutional, yet that fact would in ‘no manner affect the remaining provisions of said chapter 207, and that respondent would be entitled to receive a salary of $1,200 per annum. Therefore this action is brought to recover from defendant, respondent herein, the amount paid him as such salary in excess of the sum of $1,200 per annum during his two years’ incumbency of that office, amounting to the sum of $600. A jury trial was waived by the parties, and the action tried to the court. Findings of fact and conclusions of law were duly made by the court, and on such findings and conclusions a judgment was entered in favor of respondent and against the appellant, dismissing the action with costs.

No question is raised on this appeal as to the competency or sufficiency of the evidence to sustain the findings, nor that the findings and conclusions do not determine all the issues raised by the pleadings in the case. Certain of the findings of fact are excepted to as immaterial, but ‘need not be considered here, as the same questions are presented by appellant’s exceptions to the conclusions of law entered by the trial court. The conclusions of law to which exceptions were taken, and which present the only question raised upon this appeal, briefly stated, are that chapter 207, p. 272, Laws 1903, “is not an attempt nor does it delegate to such boards legislative powers or duties and that the acts of said board in allowing such salary was a valid use of the discretionary power vested in it by said legislative act.” Under a constitutional provision like that contained in section 6, art. 9, of our State Constitution, it may be considered as settled law that the legislative assembly cannot delegate its power to the board of county Commissioners to legislate upon the subject of the duties and compensation of county, township, or district officers. Judge Cooley in his work on Constitutional Limitations says: “One of the settled maxims in constitutional law is that the power to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of ‘the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed.” In some states, as in New York, Kansas, Michigan, Wisconsin, and Maryland, there are constitutional provisions which provide, in effect, that the legislative assembly may confer by general laws upon the boards of supervisors such further powers of local legislation and administration as the Legislature from time to time may deem expedient. In these states, as decided in State v. Wood County Supervisors, 61 Wis. 278, 21 N.W. 55, it is held that the legislative powers so conferred upon the county authorities are limited only by the statutes granting such power. In very few, if any, of the states, are to be found express constitutional provisions forbidding the delegation by the Legislature of its lawmaking power. No such provision is contained in the Constitution of this state. The only provision found in our Constitution relating thereto is that “the legislative power shall be vested in the Legislature.” But, under constitutional provisions of this character, it is held by practically all the courts that the Legislature cannot abdicate or delegate its authority, and that no legislative power can be conferred by an act of the Legislature upon any of the other departments of the government, or upon any other body or authority. And, while this rule is regarded universally as well settled, the courts have not been wholly in accord as to what constitutes a delegation of legislative powers. In discussing this question, Justice Church of the late territorial Supreme Court, in the case of Territory ex rel. Smith v. Scott, 3 Dak. 414, 20 N.W. 401, quotes with approval and adopts this language used by the Supreme Court of Illinois in People v. Reynolds, 10 Ill. 1:

“All power possessed by the Legislature is given it by the people, and yet few will be found to insist that whatever the Legislature may do it shall do, or else it shall go undone, to establish such a principle in a large state would be to almost destroy the government. … We see, then, that while the Legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly or advantageously do itself. … The object to be accomplished may be specified, and the rest left to the agency of others, with better opportunities of accomplishing the object or doing the thing understandingly.”

The Supreme Court of Ohio in the case of Crickett v. State of Ohio, 18 Ohio St. 21, in considering a constitutional provision which reads, “The General Assembly … shall fix the term of office and the compensation of all officers,” etc., says:

“The duty enjoined by this section in regard to fixing the compensation of officers does not require the General Assembly to fix the sum or amount which each officer is to receive, but only requires that it shall prescribe or ‘fix’ the rule by which such compensation is to be determined. The rule of compensation adopted by the act of 1859 was by fees for the particular service performed. The result of this uniform rate of fees was either to make the compensation of officers inadequate in the small counties, or exorbitant in the larger and more populous ones; for, if the rate was sufficiently high to yield in the aggregate an adequate compensation in the small counties, where there was but little business, though the office required all the time of the officer, the same rate, in populous counties, where there was much business, would produce a compensation unreasonably high. to obviate this evil, the Legislature, under the idea, perhaps, that the rule was required to be uniform throughout the state, adopted the mode prescribed by the acts of 1861 and 1862, creating the compensation above a certain sum according to population, and vesting in the commissioners in certain cases the power of making discretionary allowances. But neither...