Davis v. Board of Commissioners of Sweetwater County

• Decision Date: 16 January 1894
• Citation: 4 Wyo. 477,35 P. 467
• Parties: DAVIS v. BOARD OF COMMISSIONERS OF SWEETWATER COUNTY
• Court: Wyoming Supreme Court

35 P. 467

4 Wyo. 477

DAVIS v. BOARD OF COMMISSIONERS OF SWEETWATER COUNTY

Supreme Court of Wyoming

January 16, 1894

Commenced in District Court April 3, 1893.

ERROR to the District Court of Sweetwater County, HON. JESSE KNIGHT, Judge.

This was an action brought by Thomas E. Davis, as a resident taxpayer of Sweetwater county against the board of the county commissioners of Sweetwater county, to restrain the payment of a salary to Robert Smith, a justice of the peace of a precinct in Rock Springs. Judgment was for defendant and the plaintiff prosecuted error. The material facts appear fully stated in the opinion.

Judgment affirmed.

E. E Enterline and John F. Mail, for plaintiff in error.

Counsel for plaintiff in error argued and contended that the order of the board declaring the precinct in which the justice had been elected, a salaried one was improperly made, that it was retroactive and therefore void. That the presumption under the statute was that the population of the precinct was less than 1,500 until overcome by competent evidence, and that, as the officer after his qualification, for a month, at least had received fees, and the salary exceeded the fees of the office, the order had the effect to increase his salary during his term, and was therefore void as in violation of Sec. 32, Art. 3, of the Constitution; and cited the following authorities. (Board v. Burns, 3 Wyo. 691; Gulding v. Schuylkill Co., 149 Pa. 210; Larew v. Newman, 81 Cal. 588; Barnes v. Williams, 13 S. W., 845; Dougherty v. Austin, 94 Cal. 601; Welsh v. Bramlet, 98 Cal. 219.)

Louis J. Palmer and Clarence C. Hamlin, for defendant in error.

In a proceeding in error the findings of fact will not be reversed. The appellate tribunal will not disturb the finding of the lower court unless it is clear that such court has erred as to the law. (Hawes Jur. of Courts, Sec. 257.) The order of the board was made at its first regular meeting after the qualification of its members. The compensation of the officer was not increased or diminished during his term. The order was based upon the condition of affairs antecedent to his election.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

Robert Smith was elected one of the justices of the peace for Sweetwater County, Wyoming, in one of the justice's and constable's precincts of said county, also designated as election district number three, which comprised two election or polling precincts. The justice's precinct was established by order of the county commissioners on the 6th day of October, 1892, and the election was held November 8, 1892. Said Smith qualified as such justice of the peace on or about the 4th day of January, 1893, and on the 7th day of February, 1893, the board of county commissioners of the county adopted the following order: "On motion made by Thos. Sutton and seconded by E. P. Maxon, Rock Springs justice precinct Nos. 1 and 2--district number three--are hereby made a salaried precinct from Feb. 1st, 1893." At the same meeting, the county board audited and allowed the bill of said Robert Smith, the justice of the peace of said precinct, for the sum of $ 15.00 for office rent for the month of February, 1893. The action brought by the plaintiff in error was, in effect, to enjoin the board from making the precinct a salaried precinct and from making any further payment of office rent to said justice of the peace. The district court gave judgment for the plaintiff in error upon the pleadings, as to the second cause of action of his petition, containing this allegation of the unlawful allowance for office rent, and enjoined the board of county commissioners from auditing and allowing any bill presented by the said Robert Smith, justice of the peace for office rent, but overruled the motion for judgment on the pleadings as to the first cause of action seeking an injunction against any future action of the board in acting upon its order making the precinct a salaried precinct. The court also overruled the demurrer of plaintiff in error to the answer of the defendant in error. Upon trial on the issues joined as to said first cause of action of the petition, the court found for the defendant in error, and the plaintiff in error seeks a reversal of that judgment.

The action of the court below in disposing of the motion for judgment on the first cause of action for the plaintiff, and in overruling his demurrer to the answer of the defendant may be reviewed with the evidence, as merely the questions of law involved in the case were passed upon by the trial court in the disposition of the preliminary questions, and the facts alleged in the pleadings are substantially those proven on the trial. It appears that the dispute in this case is as to the effect of the order of the board of county commissioners, and also its validity. It is insisted that the order of the board was an attempt to increase the emoluments of the said Robert Smith as a public officer after his election and appointment, in violation of the inhibition contained in Sec. 32 of Art. 3 of the Constitution, to that effect, and the case of Board of Commissioners v. Burns, 3 Wyo. 691, is invoked as decisive of the case at bar. It is further maintained that the order of the board was retroactive and indefinite, and void for uncertainty.

While the order of the board of commissioners declaring the precinct a salaried precinct is not precise or exact in its terms, as it does not state the population of the precinct or determine the amount of the salary of Smith as justice of the peace, the subsequent action of the board determines that. His salary fixed was evidently allowed at the rate of $ 750 per annum, the lowest amount fixed by statute as a salary in any precinct. Under the terms of the constitution, justices of the peace must be paid fixed and definite salaries in precincts having a population of 1,500 or more, but in precincts containing less than that population they are to receive fees. Where a salary is received by a public officer he must account for and pay into the county treasury of the proper county all fees received by him in the discharge of his official duties. Con. Wyo. Art. 14, Secs. 1-2. The statute enacted to carry into effect this constitutional provision provides fees for justices of the...