Merwin v. Board of Com'rs of Boulder County

• Decision Date: 02 December 1901
• Citation: 29 Colo. 169,67 P. 285
• Parties: MERWIN v. BOARD OF COM'RS OF BOULDER COUNTY.
• Court: Colorado Supreme Court

67 P. 285

29 Colo. 169

MERWIN v. BOARD OF COM'RS OF BOULDER COUNTY.

Supreme Court of Colorado

December 2, 1901

Error to district court, Boulder county.

Action by James D. Merwin against the board of county commissioners of Boulder county. From a judgment for defendant, plaintiff brings error. Affirmed.

Action by plaintiff, Merwin, deputy district attorney of Boulder county, against the board of county commissioners of that county, to recover compensation for services performed by him in his official capacity in trying criminal causes and conducting preliminary examinations before justices of the peace. The defendant denies liability, and relies upon the last clause of section 8 of an act entitled 'An act concerning fees,' etc. (Sess. Laws 1891, pp. 213, 214) and subdivision 6 of section 1 of an act concerning fees of district attorneys (Id. p. 223). The district court sustained a demurrer to the complaint, and entered judgment for defendant, to review which this writ of error is prosecuted. The first part of section 8, above mentioned, fixes the compensation of members of boards of county commissioners as such, and the extra allowance to the chairman of the board for services as superintendent of the poor. The concluding portion, material here, reads: 'And provided, further that the county commissioners may, in their discretion disallow any charges against the county for fees or costs of district attorneys, or other persons, for the trial or examination of any criminal case, before any justice of the peace, police magistrate, police judge, or any court not being a court of record. They, in counties of the first and second classes, shall not allow any fees for district attorneys, or deputies, or attorney attendance before justices of the peace in misdemeanors.' Subdivision 6 referred to is: 'The deputies of district attorneys shall be entitled to such compensation for services rendered by them, as the board of county commissioners in the county in which the deputy or deputies reside, shall direct, not exceeding the sum of fifteen hundred dollars annually to each deputy, payable out of fees herein provided,' etc.

A. C. Patton and James D. Merwin, for plaintiff in error.

Lewis S. Young and Frank J. Annis, for defendant in error.

CAMPBELL, J. (after stating the facts).

On the threshold plaintiff in error is confronted by former decisions of this court and our court of appeals wherein a construction of the same or a similar statute has been given adverse to his contention. Board v. Graham, 4 Colo. 201; Sargent v. Board, 21 Colo. 158, 40 P. 366; Pitkin Co. v Sanders (Colo. Sup.) 59 P. 402; Otero Co. v. Wood, 11 Colo.App. 19, 52 P. 214. To invoke the jurisdiction of this court to review the judgment before us he seeks to raise some constitutional questions which appear not to have been suggested when the foregoing cases were considered. It is not entirely clear that any of them is fairly debatable, or necessary to a decision of the case, but for the purposes of the opinion we shall treat them as fairly before us, and assume, without so deciding, that plaintiff is a public officer.

1. The title of the act in which section 8 is found is 'An act concerning fees,' etc. It is said that the provision empowering county commissioners in their discretion to disallow fees in criminal trials and examinations before a justice of the peace is wholly foreign to the title. To our mind, it is too plain for argument that this title 'concerning fees' clearly covers the subject-matter of the section.

2. Plaintiff further says that he has been deprived of his property without due process of law, which is forbidden by section 25, art. 2, of our constitution. His argument is thus summarized by his counsel: (1) When, as deputy district attorney, he prosecutes a case before a justice of the peace, and has sworn to a bill alleging his services, and filed the same with the clerk of the board of county commissioners, he is thereby vested in a property right and interest in and to the fees provided by law for such services; and (2) that the arbitrary action of the board in disallowing these fees, and the refusal of the district court to review this action, operate to deprive him of his property without due process of law. It is difficult to understand how this constitutional question is in the case, any more than it would be involved in any action where a court rules against a party who is seeking a judgment. The first proposition assumes that the law has absolutely and unconditionally provided him as compensation certain fees; and the second that the board, in disallowing them, acted arbitrarily, and the district court, in declining to review its action, denied to plaintiff some right guarantied by the constitution. If the statute giving to the board discretion over the allowance of fees is not, for some other reason, invalid or nugatory, it is not void because it conflicts with this section. Plaintiff has merely been unable to collect a fee, the allowance of which the statute has left to the discretion of the board.

3. But it is said that, inasmuch as section 1 of article 6 of the constitution vests judicial power in specified courts, which do not and cannot include boards of county commissioners, the statute in question contravenes this section when it purports to confer upon such boards power to allow or disallow fees of a public officer. This statute has already been recognized as valid by this court, and similar statutes under similar constitutions have been by other courts upheld. Not every act that involves the ascertainment of a fact is a judicial act, and passing on claims against the county is an administrative or legislative, rather than a judicial, act.

4. Section 7 of article 14 of the constitution provides that the compensation of all county and precinct officers shall be as provided by law, and section 15 that the general assembly shall, for the purpose of providing for and regulating the compensation of county and precinct officers, classify the several counties according to propulation and grade, and fix the compensation of officers according to such population. These provisions, it is said, are violated by section 8 and subdivision 6 of the statutes, since the legislature, instead of fixing by general law the compensation of deputy district attorneys, has unlawfully attempted to delegate to county commissioners power to do what it, and it alone, may do. A district attorney is not a county or precinct, but a district, officer; and, if his deputy is an 'officer' at all, he is, like his principal, a district officer; therefore not within the purview of the constitutional provision relied on.

5. Section 30 of article 5 of the constitution forbids the enactment of a law which increases or diminishes the salary or emoluments of a public officer after his election or appointment. After Merwin was appointed to his office, and some of the services were performed for which recovery is sought, the board fixed his salary at $1 a year. The general fee act, which prescribes certain fees for district attorneys, was in force when plaintiff was appointed. The argument is now made that the fees pertaining to the office of district attorney, and to which plaintiff says he would be entitled in the absence of a salary fixed for him by the board, would amount to more than the salary fixed after he entered upon the discharge of his duties hence, in effect, his salary was diminished after his appointment. The point is not good for several reasons. Nowhere do we find that fees have been fixed for deputy district attorneys, though fee for district attorneys have been (Sess. Laws 1891, p. 221) prescribed. But plaintiff is not suing for fees belonging to his principal. Unless the board of commissioners has fixed the deputy's salary, or, in its discretion, allowed certain fees for the deputy's services, he is entitled to nothing. In other words, unless the board makes him an allowance of fees, or gives him a salary, there is no provision of law for his compensation. Neither the act of 1885 (Sess. Laws 1885, p. 176) nor of 1889 (Sess. Laws 1889, p. 150), which are the only statutes authorizing the appointment of deputy district attorneys, fixes a salary, or provides a compensation or fee;...