Jobb v. Meagher County

• Decision Date: 31 January 1898
• Citation: 51 P. 1034,20 Mont. 424
• Parties: JOBB v. MEAGHER COUNTY.
• Court: Montana Supreme Court

51 P. 1034

20 Mont. 424

JOBB v. MEAGHER COUNTY.

Supreme Court of Montana

January 31, 1898

Appeal from district court, Meagher county; F. K. Armstrong, Judge.

Action by L. B. Jobb against the county of Meagher. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought to recover $225, claimed to be due the plaintiff from defendant for services rendered by him as deputy sheriff and jailer of Meagher county, Mont., for the three months immediately preceding September 1, 1897, the facts being these: Plaintiff was on January 4, 1897 appointed by the sheriff of Meagher county to the office of deputy sheriff. He qualified and performed the duties of such officer, and those of jailer of the county, until the September following. Meagher county was a county of the seventh class, and plaintiff was the only deputy sheriff aside from the undersheriff of that county. At the June 1897, meeting, the board of county commissioners passed a resolution refusing to thereafter allow the sheriff any deputy other than the undersheriff, of which resolution the sheriff and the plaintiff were immediately notified. The board disallowed plaintiff's claim, as not a proper charge against the county. From January 4, 1897, to the time of the passage of the resolution, plaintiff received from defendant $75 each month for his services. No order was ever made by the board fixing the amount of his compensation. It was agreed that, if entitled to recover, he should receive $225. The district court rendered judgment dismissing the action, from which plaintiff appeals.

Lyter & Gormley and H. S. Hepner, for appellant.

C. B Nolan, Atty. Gen., for respondent.

PIGOTT J. (after stating the facts).

By this appeal the question is presented whether the board of county commissioners possesses the power to determine, within the maximum limits prescribed by law, the number and compensation of deputies allowed the sheriff. If the board has such power, the judgment of the trial court was right. We shall briefly review the legislation upon the subject.

The First legislative assembly of the territory of Montana, by section 4 of article 4 of an act approved February 9, 1865, entitled "An act relating to counties and county officers," provided: "Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts, and those of his undersheriff, he shall be responsible; and may revoke such appointments at his pleasure; and persons may also be deputized by such sheriff or undersheriff, in writing, to do particular acts; and the sheriff and his sureties shall be responsible on his official bond, for the default or misconduct of his undersheriff and deputies." Bannack St. p. 510. This section was continued in force by the succeeding legislatures until the act of March 12, 1885 (Laws 1885, p. 62), went into effect. From the act of February 9, 1865, to that of March 12, 1885, the sheriff was compensated by fees, and not by salary, and his deputies received nothing from the county. The act of March 6, 1891, was entitled "An act concerning compensation of county, district and township officers," and provided, among other things, that all fees, costs, and other perquisites, except mileage and board of prisoners, of the sheriff, should be received by him for the sole use of the county; and, in lieu of the fees to which he had been theretofore entitled, he was allowed a salary, the salary being fixed by the class in which he belonged. There were three classes, consisting, respectively, of sheriffs of counties whose assessed valuation was $8,000,000 or over, of sheriffs of counties whose assessed valuation was $4,000,000 and less than $8,000,000, and of sheriffs of counties whose assessed valuation was less than $4,000,000. Section 4 provided and limited the maximum annual compensation which should be allowed to any deputy sheriff, and declared: "The number of deputies and their compensation allowed to county officers within the maximum limits named in this act shall be determined by the board of county commissioners." All acts inconsistent with the provisions of that act were expressly repealed. On March 2, 1893, sections 3 and 4 of the act of 1891 were amended in particulars not material to this case, but the power conferred upon the board of commissioners was again expressed; and upon March 9, 1893, section 4 of the act of 1891 was again amended, in a matter not pertinent to the subject before us, the authority of the board of commissioners to determine the number of deputies and their compensation being again declared.

The Political Code was acted upon by the legislature as it had been reported by the code commission in 1892. It was passed in the form reported, and as a whole, and was approved February 25, 1895. Among its sections were the following:

"Sec. 3133. The county officers are entitled to receive as annual compensation, or salary, for services, according to the following classification, to wit: First class. *** Sheriff, four thousand dollars. *** Second class. *** Sheriff, three thousand dollars. *** Third class. *** Sheriff, twenty-seven hundred dollars. ***"

"Sec. 3136. If at any time in the judgment of the board of county commissioners, the salary of any county officer provided in this chapter is inadequate for the services required of him, and he is unable to perform the duties of the office, the board may allow such officer a deputy or such number of deputies as in its judgment may be required to do the business and perform the duties of the office, in connection with the principal, for such time as may be necessary, and at a salary not exceeding the amount stated in the next preceding section, subject to the qualifications prescribed in the following sections.

"Sec. 3137. *** The sheriff in each of the counties must appoint one undersheriff as provided in section 2982 of this Code, and such appointment may be made without the consent of the board of county commissioners. The whole number of deputies allowed the sheriff in addition to the undersheriff, must not exceed in counties of the first class where there are more than one judge of the district court, four, otherwise three; in counties of the second class not to exceed two, and in counties of the third class not to exceed one. The sheriff, undersheriff or one of the deputies must act as jailer."

"Sec. 3139. The number of deputies allowed to county officers and their compensation must be determined by the board of county commissioners, within the maximum limits prescribed in this chapter, and no deputy must be allowed to a county officer unless the actual necessities of the office require it. The salaries must be allowed and paid quarterly upon the order of the board of county commissioners and paid out of the contingent fund."

In the Political Code, as officially published, are the following sections, which are also original Code provisions, the numbering having been changed in compilation:

"Sec. 991. All assistants, deputies, and other subordinate officers, whose appointments are not otherwise provided for, must be appointed by the officer or body to whom they are respectively subordinate.

"Sec. 992. When the number of such deputies or subordinate officers is not fixed by law. It is limited only by the discretion of the appointing power."

"Sec. 4318. Every county and township officer, except county commissioner and justice of the peace, may appoint as many deputies as may be necessary for the faithful and prompt discharge of the duties of his office, but no compensation or salary must be allowed any deputy except as provided in this Code.

"Sec. 4319. The appointment of deputies, clerks and subordinate officers of counties, districts and townships must be made in writing and filed in the office of the county clerk."

"Sec. 4382. The sheriff must, as soon as may be after he enters upon the duties of his office, appoint some person undersheriff to hold during the pleasure of the sheriff. Such undersheriff has the same powers and duties as a deputy sheriff."

The act of March 13, 1895 (sections 5181, 5184, and 5186), provides that all acts of the Third and Fourth sessions of the assembly (1891 and 1893) shall be and remain in full force and effect in like manner as if enacted after the adoption of the Code; and that if any acts or parts of acts enumerated are in conflict with, or are inconsistent with, any of the provisions of the Code, the acts or parts of acts so enumerated (the acts of March 2 and 9, 1893, being among them) are to be considered and construed as amendments to the Code, "it being intended hereby that all of the acts or parts of acts herein enumerated shall be the law of the state of Montana, upon the respective subjects, so far as they are inconsistent with the said Codes, or any of them, except as herein provided"; and declares the acts of March 2 and 9, 1893, to be in full force and effect, except as in the Code otherwise provided. The act of March 13, 1895, further declares:

"Sec. 5185. That if any of the acts or parts of acts herein enumerated (those of March 2 and 9, 1893, being among them) are in conflict with, or are inconsistent with, any act or acts passed by the Fourth legislative assembly of the state of Montana, the acts or parts of acts passed by the Fourth legislative assembly shall be considered and construed as repealing such acts or parts of acts herein enumerated."

The act of March 18, 1895 (section 4328), classified the counties according to assessed valuation, there being eight classes.

Upon March 19, 1895, "An act to amend sections 3133, 3135, 3137, 3138 and 3139, and to repeal section 3136, of the Political Code," was approved, and appears in the Code as sections 4594, 4596, ...