Douglas Cnty. v. Timme

• Decision Date: 30 June 1891
• Citation: 49 N.W. 266,32 Neb. 272
• Parties: DOUGLAS COUNTY v. TIMME.
• Court: Nebraska Supreme Court

32 Neb. 272

49 N.W. 266

DOUGLAS COUNTY

v.TIMME.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

1. In the absence of any consitutional prohibition or affirmative provision fixing the term

of office of any officer, or his compensation, the legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected.

2. Where an office is created by the constitution, the compensation of the officer can neither be increased nor diminished during his term of office.

Error to district court, Douglas county; DOANE, Judge.

T. J. Mahoney, for plaintiff in error.

Cowin & McHugh and Wm. Leese, for defendant in error.

MAXWELL, J.

The defendant in error was elected county commissioner of Douglas county; his term commencing in January, 1886, and terminating January, 1888. At the time he was elected the compensation of county commissioner was fixed by statute at three dollars per day for each day necessarily employed in the duties of said office, and five cents per mile as fees for going to and returning from the county-seat. On the 31st of March, 1887, an act was passed by the legislature which provided that in all counties having over 70,000 inhabitants each county commissioner should receive a salary of $1,800 per annum. This act applied to Douglas county. This act was in force at least six months before the termination of the term of office of the defendant in error. The defendant in error claimed that he was entitled to compensation under the new law, and presented his claim to the county board of Douglas county, which rejected it. He then appealed to the district court, where judgment was rendered in his favor. The question presented is one of law, and was before this court in the case of State v. Whittemore, 12 Neb. 254, 11 N. W. Rep. 310, and State v. Ream, 16 Neb. 681, 21 N. W. Rep. 398; and the act was sustained as being constitutional. It is claimed by the plaintiff in error that the legislature had no power to increase the compensation of the county commissioner during his term of office; that he is entitled to the compensation fixed by law at the time of his election, and when he entered upon the duties of his office. This contention is based upon section 16, art. 3, of the constitution, which provides, in substance, that the compensation of a public officer will not be increased nor diminished during his term of office. That provision, in our view, applies alone to those officers whose offices were created by the constitution. As to all such officers, the salary or compensation fixed by law when the officer is elected, and enters upon the duties of his office, can neither be increased in any form nor diminished during...