Kellogg v. Story Cnty.

• Decision Date: 11 December 1934
• Docket Number: No. 42421.,42421.
• Citation: Kellogg v. Story Cnty., 219 Iowa 399, 257 N.W. 778 (Iowa 1934)
• Parties: KELLOGG v. STORY COUNTY et al.
• Court: Iowa Supreme Court

219 Iowa 399

257 N.W. 778

KELLOGG

v.STORY COUNTY et al.

No. 42421.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from Municipal Court of Ames; John Y. Luke, Judge.

Action at law to recover a sum alleged to be due the plaintiff, a public officer, as salary. Trial was had to the municipal court of the city of Ames without a jury resulting in a judgment for the plaintiff. The defendants appeal.

Affirmed.

KINTZINGER, J., dissenting.

Jeffrey C. Hougen, Co. Atty., of Nevada, Iowa, and Earle S. Smith, of Ames, for appellants.

C. A. Smedal, of Ames, for appellee.

PER CURIAM.

Appellee George H. Kellogg was elected county superintendent of Story county for a three-year term commencing September 1, 1930. He duly qualified as by law required. On January 30, 1931, the board of supervisors, at a regular meeting thereof, fixed his salary at $2,100 per year for the three-year term for which he had been elected. Subsequently and on March 1, 1932, the appellant board of supervisors at a regular meeting adopted a resolution reducing the salary of appellee from $2,100 to $1,800 per year, making the same effective as of March 1, 1932. This action is to recover the difference between $2,100 and $1,800 from March 31, 1932, to September 1, 1933.

It is the contention of appellants that by the provisions of subdivision 10 of section 5130 of the Code of 1931, boards of supervisors are authorized to fix the compensation for county and township officers where not otherwise provided by law at any general meeting of the board and to provide for the payment thereof. It is provided by section 5232 of the Code that each county superintendent of schools shall receive an annual salary of not less than $1,800 per year and such additional compensation as may be allowed by the board of supervisors in each particular county.

[1][2] The question is strictly one of statutory construction. It is true that both the words “salary” and “compensation” are used in section 5232. They are, it seems to the court, used without differentiation. The compensation to be awarded to the county superintendent is in the nature of salary, and any amount added by the board to the minimum provided by the statute must be treated as a part of such salary. It is the thought of appellants that the authority conferred upon boards of supervisors by subdivision 10 of section 5130 is plenary and confers specific authority upon such boards to alter, change, and fix the salary of county superintendents at any regular meeting thereof. Such could hardly have been the intention of the Legislature. Such authority would introduce confusion and uncertainty in the matter of salaries. The power obviously intended to be conferred by the Legislature upon boards of supervisors is to, at any regular meeting of the board, fix the salary of the county superintendent and others, not that it may be fixed at the will of the board at any or at each successive regular meeting thereof. When once fixed for the term, the power of the board of supervisors was at an end. Holmes v. Lucas County, 53 Iowa, 211, 4 N. W. 918;Goetzman v. Whitaker, 81 Iowa, 527, 46 N. W. 1058. Having at a prior regular meeting of the board of supervisors fixed the salary of the appellee county superintendent at $2,100 per year, it could not, at any subsequent or on successive regular meetings of such board, alter or change the salary thus fixed during the term of office for which appellee was elected. Such construction of the statute removes doubt and uncertainty as to the salaries of officers referred to in the statute. Section 5130 covers a variety of matter of which subdivision 10 is a small part. The construction adopted would seem best calculated to give effect to the intention of the lawmakers. The judgment entered below is, accordingly, affirmed.

Affirmed.

ANDERSON, ALBERT, DONEGAN, and EVANS, JJ., concur.

KINTZINGER, Justice (dissenting).

The question for consideration is whether or not the board had the power to reduce the salary of the superintendent after once fixing it at $2,100 per year, in January, 1931.

In the absence of any prohibition or restrictions by the Constitution or statutes of the state, the compensation of a municipal officer may be changed by the proper authorities, and such change may apply to officers then serving as well as those thereafter elected. 43 C. J. 699, § 1163; Iowa City v. Foster, 10 Iowa, 189.

When, however, restrictions against changing the salaries exist, either in the constitution or the statutes, the compensation of the public officer fixed by law cannot be diminished during the term of office. 43 C. J. 701, § 1169; Purdy v. Independence, 75 Iowa, 356, 39 N. W. 641.

It is conceded there is no constitutional or statutory provision prohibiting the board from raising or lowering the salary of the county superintendent of schools during his term of office. It may also be assumed that the board of supervisors under the statute has authority to fix the annual salary of the county superintendent of schools at any regular meeting of the board. Code, §§ 5232 and 5130. Section 5232 provides that: “Each county superintendent of schools shall receive an annual salary of not less than eighteen hundred dollars, and such additional compensation as may be allowed by the board of supervisors in each particular county, but in no case to exceed three thousand dollars.”

Subdivision 10 of section 5130 provides that: “The board of supervisors at any regular meeting shall have power: * * * To fix the compensation for all services of county and township officers not otherwise provided by law, and to provide for the payment of the same.” (Italics ours.)

These two provisions clearly indicate that where a salary exceeds $1,800 per year, it is not “otherwise provided by law.” Therefore the fixing of such salary comes within the provisions of section 5130, subd. 10, and section 5232, under which the board has power to fix the same “ at any regular meeting.”

The Constitution and statutes of this state prohibit increasing or reducing the salaries of certain public officers in this state during their term of office. Const. art. 5, § 9; art. 3, § 25; Code, § 5672. The salaries of the officers included within these constitutional and statutory provisions cannot be changed during the term of office. These provisions clearly imply that the Legislature, board of supervisors, city council, or other boards, having the authority to employ officers and fix salaries, are not prevented from increasing or reducing the salaries of public officers not included within those inhibitions.

It is the general rule that where the power to fix the compensation of public officers had been delegated to a county board, in the absence of any constitutional or statutory prohibition, the compensation of such officers may be changed during their term of office. 46 C. J. 1020; 22 R. C. L. 553; Iowa City v. Foster, 10 Iowa, 189;Knappen v. Barry County Sup'rs, 46 Mich. 22, 8 N. W. 579;State v. Hill, 32 Minn. 275, 20 N. W. 196;Douglas County v. Timme, 32 Neb. 272, 49 N. W. 266;State v. Kennard, 38 N. D. 612, 166 N. W. 514;Shaw v. Smith County (Tex. Com. App.) 29 S.W.(2d) 1000, 70 A. L. R. 1046;Kollock v. Dodge, 105 Wis. 187, 80 N. W. 608;Yuma County v. Sturges, 15 Ariz. 538, 140 P. 504;Warrenton v. Bradshaw, 27 Ga. App. 298, 108 S. E. 167;Hall County v. Quillian, 32 Ga. App. 586, 124 S. E. 143;Whitthorne, County Judge, v. Turner, 155 Tenn. 303, 293 S. W. 147;Diedrich v. Warren, 213 App. Div. 406, 210 N. Y. S. 49;People ex rel. Smith v. Board of Police Com'rs, 55 Hun, 611, 8 N. Y. S. 725; State ex rel. Mial v. Ellington, 134 N. C. 131, 46 S. E. 961, 65 L. R. A. 697;Butler v. Pennsylvania, 10 How. 402, 13 L. Ed. 472;Carver v. Wheeler County (Tex. Civ. App.) 200 S. W. 537.

It is contended by appellee that the fixing of plaintiff's salary in January, 1931, and the rendering of the services during his term of office constituted a contract between the board of supervisors and himself under which he is entitled to recover the amount of the salary first fixed, and that having fixed the salary at a time when the board was authorized so to do, its power to change the same during the term was exhausted. It is the general rule, however, that the performance of services required by the duties of a public office are not in their nature contractual. Butler v. Pennsylvania, 10 How. 402, 13 L. Ed. 472, and other cases hereinabove cited.

This doctrine was recognized by this court in Iowa City v. Foster, 10 Iowa, 189. In that case we said: “The principal question presented * * * is whether the council of Iowa City had the authority * * * to change the compensation of the treasurer * * * during the term of office for which he had been elected. The answer to this question depends upon another, which is, whether he is a public officer, or an officer of a public corporation, or whether he is the officer of a private corporation. That a town or city is a public corporation, there can be no doubt. Nor can there be any that the office and the compensation of such officers are subject to the control of the body which creates or controls the office and the officer, such as the legislature, or the municipal council, or the like, according to the nature of the case. The principle is that public officers, and the officers of public corporations, are created for the public benefit, and that they and their offices, duties and emoluments, are governed by considerations relating to the common good, and that there is nothing of the nature of contract pertaining to them, in the sense of the constitution. * * * The compensation to which Foster was entitled, therefore, was subject to the action of the local legislature or council of the city.” (Italics ours.)

In Purdy v. Independence, 75 Iowa, 356, 39 N. W. 641, 642, this court said: “It was insisted, however, that plaintiff rendered the services under the contract, and as a consequence he is entitled to no...