Dygert v. Board of County Commissioners of Caribou County, 7036

• Decision Date: 17 September 1942
• Docket Number: 7036
• Citation: 64 Idaho 161,129 P.2d 660
• Parties: ROY J. DYGERT, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF CARIBOU COUNTY, Respondent
• Court: Idaho Supreme Court

129 P.2d 660

64 Idaho 161

ROY J. DYGERT, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF CARIBOU COUNTY, Respondent

No. 7036

Supreme Court of Idaho

September 17, 1942

COUNTIES-PROSECUTING ATTORNEY-STENOGRAPHER, EMPLOYMENT OF-COMPENSATION.

1. Order of Board of County Commissioners reciting that the prosecuting attorney could employ a stenographer two days per week, which was all the time reasonably necessary, and that the stenographer's compensation was fixed at a designated weekly or monthly sum, and that the time of employment during each week was in the discretion of the prosecuting attorney was not an attempt to control the county stenographer in opposition to statute providing that such control should be in the prosecuting attorney. (I.C.A., sec. 30-2109.)

2. Under statutes providing for compensation and duties of county stenographers, the Board of County Commissioners is vested with discretion as to employment of county stenographers and as to the compensation to be paid them. (I.C.A., secs. 30-2108, 30-2109.)

3. Unless it affirmatively appeared that the Board of County Commissioners had abused its discretion in authorizing the appointment of and fixing the compensation for a part time stenographer for the county attorney, its order would not be disturbed on appeal. (I.C.A., secs. 30-2108, 30-2109.)

4. If it rests in the discretion of the county board to determine what is a reasonable compensation for county officers, the courts should not revise their action in the absence of clear evidence of such manifest abuse of power and disregard of the statute as to show that the board failed to exercise a legal discretion.

5. The entire matter of length of time necessary for employment of stenographic assistance in the prosecuting attorney's office and fixing compensation therefor is within the sound discretion of the Board of County Commissioners. (I.C.A secs. 30-2108, 30-2109.)

6. Evidence was insufficient to establish that the Board of County Commissioners had abused its discretion in authorizing employment of and fixing compensation for a part time stenographer for the county attorney, so as to authorize disturbance of the order. (I.C.A., secs. 30-2108, 30-2109.)

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. C. J. Taylor, Presiding Judge.

Judgment upholding an order of the Board of Commissioners of Caribou County, affirmed.

Judgment affirmed. Costs to respondent.

R. J. Dygert for appellant.

The salary of the prosecuting attorney is fixed by the legislature by secs. 30-2609 and 30-2610 of the I. C. A. and the same therefor cannot be considered by the commissioners or on this appeal and the authority cited by the Court in its decision are therefore not in point in this action. The petition for a county stenographer is filed under the provision of 30-2108 and 30-2109, I. C. A. Section 30-2109 provides "said stenographer shall be under the control and direction of the prosecuting attorney of the county." That portion of the order of the board of county commissioners which attempts to say that the stenographer shall be employer for only two days each week is an attempt by the board of county commissioners to control the county stenographer in direct opposition to the expressed provision of the statute as provided in sec. 30-2109 as above quoted and that portion of the order which reads, "or $ 25.00 per month" is an attempt by the board of county commissioners to control the employment of the county stenographer to the amount of two days per week and is contrary to the provision of the statute placing such control in the hands of the prosecuting attorney.

A. A. Merrill and L. H. Merrill for respondent.

The Board of County Commissioners must take into consideration the work involved, the time and amount required, the responsibilities involved, the bond required, the experience desired, and all the attendant circumstances and conditions connected with the office or employment for which they fix a salary. In using discretion it is necessary for the Board to make proper and full investigation of the offices and their requirements, and what is fair and equitable and proper. "The question is not what men could be hired for to perform these services." (Reynolds v. Board of Commissioners, 6 Idaho 738, 793; Campbell v. Board of Commissioners, 5 Idaho 53-57; Criddle v. Board of Commissioners, 42 Idaho 811; U. S. v. Doherty, 27 F. 730.)

An abuse of discretion occurs when the tribunal or board, charged with its exercise, exceeds the bounds of reason, all circumstances before it being considered. It is a discretion, exercised to an end or purpose not justified by, and clearly against reason and evidence. (Criddle v. Board of Commissioners, supra, p. 816; Williams v. Board of Education, 99 P. 216; Murray v. Buell, 41 N.W. 1010; U. S. v. Doherty, 27 F. 730, 1 Cyc, 219.)

BUDGE, J. Givens, C. J., and Morgan and Ailshie, JJ., concur. Holden, J., dissents.

OPINION

BUDGE, J.

Appellant addressed to the Board of County Commissioners of Caribou County the following undated instrument:

"TO THE HONORABLE BOARD OF COUNTY COMMISSIONERS OF CARIBOU COUNTY, IDAHO, GENTLEMEN:

"Pleased be advised that the criminal and civil business of the County and of this office requires the appointment of a competent stenographer to act as County Stenographer. That it has been necessary since I have been in office to have such a stenographer. That heretofore I have employed such a stenographer who has taken care of the County business and the County has not in 9 years made any contribution toward her compensation. For three months the County business has been so heavy as to take all of her time and this condition will probably continue for some time.

"There is now on the calendar the Coppard case and the Hayes Bond case. There is a case of Perjury that this office will need to take part in and may be required to prosecute. At this time it will be necessary that the salary of the County Stenographer be fixed at at least $ 25.00 per week in order that a competent person may be obtained.

"You are therefore respectfully requested to provide for the employment of a County Stenographer and fix the salary of such office at at least $ 25.00 per week.

"Respectfully submitted,

"R. J. Dygert,

"Prosecuting Attorney."

In the transcript, the following minute entry of the Board of County Commissioners appears:

"MINUTE ENTRY

"ORDER FOR PART TIME STENOGRAPHER FOR COUNTY ATTORNEY AND FIXING COMPENSATION:

"WHEREAS, R. J. Dygert, prosecuting attorney of Caribou County, Idaho, has petitioned the Board of County Commissioners for a County Stenographer; and

"WHEREAS, the Board of County Commissioners has thoroughly investigated the amount of stenographic work necessary in the Prosecuting Attorney's office finds that the work in said Prosecuting Attorney's office is not sufficient for the employment of a full time stenographer, but that a stenographer employed on the basis of two days out of each week can reasonably handle all necessary work in said office;

"NOW, THEREFORE, IT IS ORDERED that R. J. Dygert, Prosecuting Attorney be, and he is hereby authorized to employ a County Stenographer under and by virtue of Section 30-2108 ^[1], 30-2109 ^[2], I. C. A. 1932 not to exceed a total of two days out of each week, the time of employment during said week to be at the discretion of the said Prosecuting Attorney.

"IT IS FURTHER ORDERED that the compensation of said part time Stenographer shall be, and the same is hereby fixed at $ 6.25 per week, or $ 25.00 per month.

"Dated this 11th day of February, 1942.

"Board of County Commissioners."

From the above order, appellant appealed to the district court of the fifth judicial district. On March 24, 1942, the cause came on regularly for hearing before C. J. Taylor, presiding judge, whereupon evidence was presented by both appellant and respondent. At the conclusion thereof, the court made the following findings of fact and conclusion of law:

"1. At a meeting of the Board of County Commissioners of Caribou County, regularly and legally held on the 11th day of February, 1942, the said Board, in the exercise of its discretion, determined that it was not necessary to employ a county stenographer for full time, 'but that a stenographer employed on the basis of two days out of each week can reasonably handle all necessary work in' the office of the prosecuting attorney.

"2. At said meeting the said Board further authorized the prosecuting attorney to employ a county stenographer not to exceed a total of two days each week, the time of employment during the week to be at the discretion of the prosecuting attorney.

"3. At...