City of Twin Falls v. Koehler

• Decision Date: 14 March 1942
• Docket Number: 6983
• Citation: 123 P.2d 715,63 Idaho 562
• Parties: CITY OF TWIN FALLS, a Municipal Corporation and Body Politic and Corporate, within Twin Falls County, State of Idaho, upon and out of the Relationship of H. L. CANNON, Appellant, v. JOE KOEHLER, PAUL R. TABER, CARL E. RITCHEY, LIONEL A. DEAN and LEONARD F. AVANT, Respondents
• Court: Idaho Supreme Court

123 P.2d 715

63 Idaho 562

CITY OF TWIN FALLS, a Municipal Corporation and Body Politic and Corporate, within Twin Falls County, State of Idaho, upon and out of the Relationship of H. L. CANNON, Appellant, v. JOE KOEHLER, PAUL R. TABER, CARL E. RITCHEY, LIONEL A. DEAN and LEONARD F. AVANT, Respondents

No. 6983

Supreme Court of Idaho

March 14, 1942

MUNICIPAL CORPORATIONS-CHANGE IN SALARIES OF OFFICIALS-NATIONAL CENSUS EFFECTIVE DATE-EVIDENCE-JUDICIAL NOTICE.

1. Judicial notice was taken of the requirement for and taking of federal decennial census, and of fact that no official state census had been taken for particular year. (U. S.C. A Const. art. 1, sec. 2; 13 U.S. C. A. sec. 201 et seq.; I. C A. sec. 16-101, subd. 2.)

2. The statute requiring census to be taken "as of" first day of April manifests congressional intent to require the count or enumeration of population as it actually existed as a fact on the first day of April, despite realization that the count could not be actually completed in one day. (13 U.S. C. A. secs. 201, 206.)

3. Difficulty or delay in obtaining proof of a fact does not preclude its existence and operation, and record of many occurrences and transactions is evidence of what existed at time of happening of the event, though record is not available for many days or months afterwards. (I. C. A. secs 31-309, 38-214, 61-102, 61-306.)

4. Public officers and courts should not disclaim knowledge of what everybody else knows.

5. It is common knowledge that municipal officers, chambers of commerce and local civic organizations are always watching closely the taking of the census, and that newspapers publish result of the enumeration as soon as it is completed.

6. In determining date on which 1940 federal census became effective, court could not say that there was no way of acquiring knowledge of such census until director of census caused official bulletin to be filed. (13 U.S. C. A. secs. 202, 218.)

7. Where federal census showed increase in population of City of Twin Falls as of April 1, 1940, mayor and councilmen were entitled to salary increase beginning with May, 1940, though result of census was not officially published until December, 1940. (I. C. A. secs. 16-101, subd. 2; 49-3210; U.S. C. A. Const. art. 1, sec. 2, 13 U.S. C. A. secs. 201 et seq., 202.)

8. The statute prohibiting change in salary of officers during their term of office does not apply to salaries of elective officers under commission form of government. (I. C. A. secs. 49-1809, 49-3210.)

9. Compilers of the annotated Code could not change or amend the statute governing change of salaries of officers as they found it, nor make it apply to any other form of municipal government than that for which it was enacted. (I. C. A. sec. 49-3210.)

10. Where statute specifically providing for a sliding scale of salaries for mayor and councilmen, dependent upon results of national census, was in force when particular mayor and councilmen were elected, fixing of their salaries was legislative and self-operative, and not dependent upon their action or non-action, and hence was operative irrespective of statute prohibiting change in officers' salary during their terms of office. (I. C. A. secs. 49-1809, 49-3210.)

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. James W. Porter, Judge.

Action for recovery of money alleged to have been illegally and unlawfully paid as increase of salaries for city officials. From judgment and decree dismissing the action, plaintiff appeals. Affirmed.

Judgment of the trial court affirmed. Costs to respondents.

Witham & Kinney, for Appellant.

Inhibition: "The emoluments of no officer whose election * * * is required by this title (Title 49 I. C. A.) shall increase or decrease during the term for which he shall have been elected * * *" (Section 49-1809 I. C. A.)

This inhibition is specifically made a part of the commission form of city government act itself. (Section 49-3007.)

"Where the statutes adopt particular provisions of another by specific descriptive reference to statute or provisions adopted, effect is the same as though the statute or provision adopted had been incorporated bodily into the adopting statute." (Nampa & Irr. District v. Barker, 39 Idaho 529; Boise City v. Baxter, 41 Idaho 369.)

Increase of salary during term of office, of an elective officer, violates the statutory inhibition. (James v. McMillan, 194 P. 823; State v. Cornwell, 270 P. 306; Commonwealth v. Walter, 118 A. 510.)

Harry Benoit, for Respondents.

The census of the population of the United States shall be taken as of the 1st day of April of the year in which the same is taken. (Title 13 U.S.C. A., Section 206.)

1940 census became effective as of April 1, 1940. (Underwood v. Hickman (Tenn.) 39 S.W.2d 1034; Puterbaugh v. Wadham (Cal.) 123 P. 804; People v. Wong Wang (Cal.) 28 P. 270.)

The increase of salaries of the mayor and councilmen was not in violation of law. Yuma County v. Sturges (Ariz.) 140 P. 504; Board of Commissioners of St. Joseph County v. Crowe (Ind.) 15 N.E.2d 1016; Crowe v. Board of Commissioners (Ind.) 3 N.E.2d 76; State v. Linville (Mo.) 300 S.W. 1066.)

AILSHIE, J. Givens, C.J., Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

Twin Falls is a municipal corporation of the second class, operating under the "Commission Form of Government." (Chaps. 30 to 36, inclusive, Title 49, I. C. A.) Respondents, Taber and Avant, were elected in April, 1937, as city councilmen and began serving their respective four-year terms May 1, 1937. Respondents Dean and Ritchey, elected in April, 1939, began serving like terms May 1, 1939. Koehler, also a respondent, was elected mayor of the city April 25, 1939, and began his two-year term of office, May 1, 1939.

At the time of the election of the above named officials, the city of Twin Falls had a population of more than 7,000 and less than 10,000; as shown by the national 1930 census,--8,787. The statute (sec. 49-3210, I. C. A.), prescribing "Salaries of mayor and council," provides as follows:

"The total compensation of the mayor and councilmen shall be as follows:

In cities having, by the last preceding state or national census, a population of 2500 and less than 7000, the mayor's annual salary shall be $ 300.00 and each councilman's annual salary shall be $ 150.00.

In cities having, by such census, a population of 7000 and less than 10,000, the mayor's annual salary shall be $ 600.00, and the annual salary of each councilman shall be $ 450.00.

In cities having, by such census, a population of 10,000 and less than 15,000, the mayor's annual salary shall be $ 1200, and the annual salary of each councilman shall be $ 900.00. . . .

Such salaries shall be payable in equal monthly installments: provided, that the above salaries may be increased or decreased at any time by means of the initiative power in this act conferred."

Without the initiative power being exercised, or any other action being taken, the mayor and members of the council filed their verified claims for salaries beginning with the month of May, 1940, claiming the salaries specified by statute for a city with a population of 10,000 and less than 15,000. Their claims were allowed and paid. Thereafter, demand in writing was made of the city officials, to return the increase of these payments to the city treasury. They refused to comply with the demand; whereupon, appellant, by and through H. L. Cannon, as realtor, instituted this action, to recover the money as illegally and unlawfully paid out of the treasury. From a judgment and decree dismissing the action, plaintiff has appealed.

The question with which we are confronted on this appeal is: Upon what date does the salary of mayor and councilman change or become fixed, under the provisions of the foregoing statute? (Sec. 49-3210, I. C. A.)

We take judicial notice of the requirement for, and the taking of, the Federal decennial census. (U. S. Const., Art. I, sec. 2; 13 U.S.C. A., chap. 4; Sec. 16-101, I. C. A., subd. 2; State ex rel Graham v. Enking, 59 Idaho 321, 343, 82 P.2d 649, 658; Ervin v. State 119 Tex. Crim. 204, 44 S.W.2d 380, 383.) We also take notice of the fact that no official "state census" has been taken for the year 1940.

This reduces our inquiry to the simple question, as to the date on which the "national census" for 1940 was taken or became effective.

The Federal statute (Act of June 18, 1929, chap. 28, 46 Stat. 21), providing for the census of population for the year 1930 "and every ten years thereafter," (13 U.S.C. A., sec. 201) provides, inter alia: (13 U.S.C. A., chap. 4, sec. 206.)

"The census of the population and of agriculture required by sec. 201 of this title shall be taken as of the 1st day of April, and it shall be the duty of each enumerator to commence the enumeration of his district on the day following unless the Director of the Census in his discretion shall change the date of commencement of the enumeration in said district by reason of climatic or other conditions which would materially interfere with the proper conduct of the work; but in any event it shall be the duty of each enumerator to prepare the returns hereinbefore required to be made and to forward the same to the supervisor of his district within thirty days from the commencement of the enumeration of his district: Provided, that in any city having two thousand five hundred inhabitants or more under the preceding census the enumeration of the population shall be completed within two weeks from the commencement thereof."

The actual count and record of the population (16th Census) was required to begin on the 2d day of April, unless the director of the census changed the...