Howard v. Stafford
| Decision Date | 09 February 1942 |
| Docket Number | 4-6706 |
| Citation | 158 S.W.2d 929,203 Ark. 736 |
| Parties | HOWARD, COUNTY TREASURER, v. STAFFORD, COUNTY JUDGE |
| Court | Arkansas Supreme Court |
Appeal from Carroll Circuit Court, Eastern District; Jas. W Trimble, Judge; affirmed.
Affirmed.
F O. Butt, for appellant.
John K. Butt, for appellee.
Bob Bailey, Charles Mehaffy, J. F. Quillin and Fuller & Russell, amici curiae.
OPINION
Act No. 78 of 1941, entitled "An Act to Fix the Fees of County Treasurers, and for Other Purposes," provides:
Section 1 of said Act 78 is an exact copy of § 1 of Act No. 146 of 1939, except it omits the last sentence of the latter, as follows: "The provisions of this act shall not apply to or be in force in any county now or hereafter having a treasurer who is paid a salary instead of fees, as provided for by legislative or initiative salary acts relating to any county officials."
Appellant is drawing a salary, as county treasurer of Carroll county, of $ 100 per month under the provisions of Act 93 of the Acts of 1929, p. 497. He filed the claim here involved, based on said Act 78 of 1941, from January 1, 1941 to and including October 31, 1941, that is two per cent. of the total revenue accruing to the county for said period exclusive of the funds excluded in said Act, less his salary for 11 months at $ 100 per month, in the sum of $ 1,203.40. The county court disallowed the claim. He appealed to the circuit court, where his claim was again disallowed, and he has appealed to this court.
The question presented to us is whether Act 78 of 1941 is a general salary Act which, of its own force and effect, repeals all previous laws on the subject, either general, special or local, or local initiated county salary acts. Our investigation discloses that there are 18 counties in the state, operating under local initiated salary acts, adopted by a vote of the people, and that there are 13 counties in the state, operating under legislative local salary acts. Was it the purpose of the legislature, in the enactment of said Act 78, to overturn or upset the fiscal affairs of these 31 counties by repealing the acts fixing the compensation of all county treasurers and other officers in many counties, and of treasurers in others? Act 78 does not purport in express terms to repeal anything. It has no repealing clause. If it does repeal any other act, it does so by implication. It appears to us that the legislature had in mind, or was so advised, that Act 146 of 1939 was unconstitutional and void, because of the clause above quoted, which exempted 31 counties of the state from its provisions and that it re-enacted said Act 146, by Act 78 of 1941, omitting the exemption clause, to make it a general act and, therefore, constitutional. Whether this was the purpose or not, we think it had the effect of repealing Act 146 of 1939, whether constitutional or not, but that it did not repeal any other Act, either legislative or initiative, fixing the salary of county treasurers.
Act 78 of 1941 does not purport to be a salary Act or other compensatory act for county treasurers. It is entitled "An Act to Fix the Fees of County Treasurers and for Other Purposes." Section 1 provides: "The county treasurers shall be allowed fees as follows: Two per centum on all funds coming into their hands as treasurers and to be paid out of the respective funds," except certain funds specified. There is no provision in the act that intimates that all such fees accruing to the office shall be paid to the treasurers as salary or other compensation. We think what the legislature intended to do was to create a source of revenue accruing to such office from which the salary of the incumbent could be paid. This is borne out, we think, conclusively, from the language of Act 93 of 1929, the Act under which appellant is now being paid a salary of $ 1,200 per year. Section 1 of said act provides for said salary and, further, "the same to be paid him out of the fees, commissions and emoluments of the office now allowed by law or hereafter allowed to a county treasurer of this state." Section 2 of said act provides that if such commissions and emoluments of the office in any one year shall exceed $ 1,200, "such surplus or sums in excess thereof shall be pro-rated or apportioned to the various funds entitled thereto as provided by law." Similar provisions are contained in all county salary initiated acts and generally in the legislative salary acts. The whole purpose of Act 78 of 1941 was to provide a fund out of which salaries of treasurers could be paid, and was not, in any sense, a salary or compensation act in itself. Therefore, the circuit court, as also the county court, correctly denied appellant's claim.
We do not now determine whether Act 93 of 1929 is a valid and constitutional Act, and, if so, under what Act appellant would draw his pay. What we do hold is that Act 78 of 1941 is not itself a salary Act and that it does not repeal any legislative or initiated salary act fixing salaries of county treasurers. In this connection compare Warfield v. Chotard, 202 Ark. 837, 153 S.W.2d 168. Appellant and other treasurers of Carroll county have been drawing compensation under said Act 93 of 1929 at the rate of $ 1,200 per year, and that Act has not been repealed by said Act 78.
Affirmed.
SMITH J., (dissenting). It may have been unwise, if not improvident, to fix the compensation of all county treasurers at two per centum of all funds coming into their hands as treasurers, to be paid out of the respective funds, with certain funds excepted. But we are not concerned with that question. That act 78 of the Acts of 1941 does fix those fees appears to me to be indubitable, and the power of the General Assembly to fix that compensation is also indubitable.
Now the act does not contain a repealing clause, yet the majority say it repealed act 146 of the Acts of 1939. Certainly it did. And if it repealed that act, it repealed all other...
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Terry v. Thorntion
...between the two cases, and is in no sense a weakening of the Austin case. (c) Howard v. Stafford, 203 Ark. 736, 158 S.W.2d 929, is cited. The Howard case held that the Act 78 of 1941 (providing that county treasurers should be allowed as fees 2 per cent. on certain funds coming into their h......
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Terry v. Thornton
...the Austin case are: Marable v. State, 175 Ark. 589, 2 S.W.2d 690; Page v. McCuing, 201 Ark. 890, 148 S.W.2d 308; and Howard v. Stafford, 203 Ark. 736, 158 S.W.2d 929. Appellants' contentions therefore necessitate (1) a review of the Austin case; and (2) a study of the cases said to weaken ......
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