Landis v. Lincoln County

• Decision Date: 25 October 1897
• Parties: LANDIS v. LINCOLN COUNTY et al.
• Court: Oregon Supreme Court

50 P. 530

31 Or. 424

LANDIS v. LINCOLN COUNTY et al.

Supreme Court of Oregon

October 25, 1897

Appeal from circuit court, Lincoln county; J.C. Fullerton, Judge.

Action by George A. Landis against Lincoln county and others for mandamus. From a judgment for defendants, plaintiff appeals. Affirmed.

W.S Hufford and J.K. Weatherford, for appellant.

M.L Pipes, for respondents.

WOLVERTON J.

This is a proceeding by mandamus instituted by the sheriff of Lincoln county to compel the county court of said county to audit and allow his claim for services as such sheriff for the months of August, September, October, and November of the year 1896 amounting to the sum of $666.66. There was a demurrer to the alternative writ, which being overruled, judgment was rendered against plaintiff, dismissing the action, from which he appeals.

The solution of the sole question in this case depends entirely upon the construction to be given the following clause contained in an act entitled "An act to create the county of Lincoln and to fix the salaries of county judge and treasurer thereof," viz.: "The sheriff and county clerk of said county shall receive the same fees as are now allowed by law to the sheriff and county clerk of Benton county." Acts 1893, p. 69. At the time the act passed both houses and received the signatures of the presiding officers, there was pending an act to change in part the compensation and mode of payment of certain county officers including clerks and sheriffs. This latter act (Acts 1893, p. 163) was first introduced, but passed both houses and received the signatures of the presiding officers two days later. By section 12 thereof it was provided that the provisions of the act should not apply to the clerks, sheriffs, and recorders of conveyances then in office, and all acts and parts of acts in conflict therewith were repealed. The act further provided that the sheriff of Benton county should receive an annual salary of $2,000, which, together with the salaries of other county officers established in like manner, should be audited and paid by the several counties to the respective parties entitled thereto in monthly payments, and in the same manner that other county charges are paid. It also established a salary for the sheriff and clerk of every other county in the state, except Lincoln, which act was amended in 1895, but not as it pertains to any matters here alluded to.

It is contended that the two acts should be construed in pari materia, in determining the compensation of the sheriff of Lincoln county, and that the word "fees," used in the Lincoln county act, should be construed to signify compensation, and should take the form of the compensation received by the sheriff of Benton county, whether by the receipt of fees, under the old law, up to the first Monday in July, 1894, or by a fixed salary thereafter, as established by the act of 1893. By the ordinary acceptation of the term "fees," as heretofore and now used in the statute we understand it to signify compensation or remuneration for particular acts or services rendered by public officers in the line of their duties, to be paid by the parties, whether persons or municipalities, obtaining the benefit of the acts, or receiving the services, or at whose instance they were performed ( Musser v. Good, 11 Serg. & R. 247; Tillman v. Wood, 58 Ala. 578), while the term "salary" denotes a recompense or consideration to be paid a public officer for continuous, as contradistinguished from particular, services, and may be denominated "annual or periodical wages or pay" ( Cowdin v. Huff, 10 Ind. 83; Black, Law Dict.). Lexicographers and some authorities class "salary" and "wages" as synonymous (see Webster, and Rap. & L.Law Dict., and Com. v. Butler, 99 Pa.St. 535); but not so with the terms "salary" and "fees," as they appear generally to be distinguished very much as is indicated above. But the interpretation of the acts in question does not depend so much upon the technical definition of the terms as upon the sense in which they were used by the legislature. The real intention of that body in calling them into requisition as agencies for the expression of its legislative will ought to and will control. The term "fees" is not so inflexible as that it may not have been used in the sense of "salary" or "wages." We may cite an instance. Section 2364, Hill's Ann.Laws Or., provides that the fees of the assessor shall be $3 per day, in certain counties $4, and that in Multnomah county he shall receive $6,000 per annum for his services. Now, it is evident that the legislature meant by the use of the term "fees," in that section, to signify the compensation to which the assessor should be entitled. But, in order to determine the legislative intent, we must look to the conditions of the old law touching the compensation of sheriffs, and the circumstances...