Messenger v. Board of County Commissioners of Converse County

• Decision Date: 14 June 1911
• Docket Number: 648
• Citation: 19 Wyo. 309,117 P. 126
• Parties: MESSENGER v. BOARD OF COUNTY COMMISSIONERS OF CONVERSE COUNTY
• Court: Wyoming Supreme Court

117 P. 126

19 Wyo. 309

MESSENGER v. BOARD OF COUNTY COMMISSIONERS OF CONVERSE COUNTY

No. 648

Supreme Court of Wyoming

June 14, 1911

ERROR to the District Court, Converse County; HON. RODERICK N MATSON, Judge.

The material facts are stated in the opinion.

Affirmed.

H Donzelmann and Kinkead & Mentzer, for plaintiff in error.

The right of the sheriff to the fees in question primarily depends upon the meaning of the term "civil cases" as used in Section 2 of Article XIV of the Constitution. We contend that said term was used in its ordinary meaning and acceptation, and that it should not be given a strained or contracted construction. By the statute making the sheriff the inspecting officer, and requiring him as such to inspect horses about to be transported and driven out of the state the legislature imposed upon the sheriff a service in a civil matter, as distinguished from a criminal case. It is not our contention that the legislature may not impose a duty upon a sheriff in a civil matter without providing adequate compensation therefor. But when the sheriff is required to perform services in civil matters, and a compensation therefor is fixed, then the constitution declares that the fees so provided shall belong to the sheriff, and neither the county nor state could be made the beneficiary thereof. It is not a question whether the services were rendered for the county, nor whether the legislature intended that the sheriff should retain the fees, for if such fees come within the meaning of the term "services performed in civil cases" as used in Section 2 of Article XIV of the constitution, then the fees must belong to the sheriff, and cannot be lawfully claimed by the county.

"Civil cases," as used in the constitutional provision aforesaid, must be held to include all matters coming within the duties of a sheriff which are distinguished from criminal matters, and it cannot be given the restrictive meaning of civil action in court. The term is a much more comprehensive one than the expression "civil actions." (Carpenter v. Jones, 121 Cal. 362; In re. District Atty., 23 F. 26; U. S. v. Volz, 14 Blatch. 15; Scott v. Lasell, 71 Ia. 180.) A different rule should apply in construing provisions of the constitution than in the construction of statutes, for the reason that such a document is one that has been given careful consideration and calculated for permanent endurance. (Wolcott v. Wigton, 7 Ind. 44; Greencastle v. Black, 5 Ind. 557; Newell v. People, 7 N.Y. 9; Cooley's Const. Lim. (6th Ed.) 75; 8 Cyc. 731.) A constitution should be given a practical interpretation and one that will give it life and usefulness, if such a meaning can be given to it without violence to the words employed. But the words and terms of a constitution, like those of a statute, are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense. (Miller v. Dunn, 72 Cal. 462; People v. May, 3 Mich. 598; Charleston v. Oliver, 16 S.C. 47.) What would be the situation if the constitutional provision aforesaid is so construed as to exclude all services, which may now or hereafter be imposed upon the sheriff in other than "civil actions"? The sheriff is in some cases required to preside over juries in condemnation proceedings, acts of fence viewers, may foreclose chattel mortgages and trust deeds by notice and sale, and in numerous other ways is authorized to act in matters than those growing out of "civil actions." Can it be said that the fees collected for such services would belong to the county, or that any part of such fees should be paid into the county treasury? Yet, such would be the logical conclusion if the term "civil cases" as used in the constitutional provision aforesaid is to be restricted to "civil actions." Section 1113, Revised Statutes 1899, provides for fees to be paid to the sheriff for the drawing of jurors and talesmen, and yet that is a service performed peculiarly for the county. This is a legislative construction of that which the constitution has intended to be compensated for by the sheriff's salary. It interprets the constitution as allowing the sheriff all fees in all civil matters, whether the service be performed for county or an individual. A practical construction by the legislature of a doubtful constitutional provision will be followed by the courts if that can be done without violence to a fair meaning of the words used. (State v. Stingley, 24 Utah 25; McPherson v. Secretary, 92 Mich. 377.)

The amendment in 1903 of the Act of 1901 is quite significant, and lends force to the proposition that the legislature intended the sheriff to be paid for his services as inspector, and that the fees provided for were collected for the purpose of re-imbursing the sheriff for his personal services and expenses. Again, Section 8 of the act provides that the fee shall be "in full compensation" for all services rendered in making the inspection. This indicates that it was intended to be received by the sheriff as compensation. It is true that the statute finds its justification in the police power of the state, yet the services to be performed by the inspector are not performed for the county. They may result in benefit to the county indirectly, and may serve to discover and punish crime, but the services are performed for the shipper, since he cannot ship his horses from the state until they have been inspected, and he has received a certificate to that effect. The shipper demands the services, receives the exclusive benefit thereof, and pays the fee provided by the statute. It is a purely civil matter between the shipper and the sheriff. It is therefore submitted that the fees earned by the sheriff under the statute come within the meaning of the constitutional provisions allowing him to receive fees in civil cases in addition to his salary. If the sheriff is not entitled to retain the fees so collected, then by the same reasoning he would be compelled to personally bear all the expenses in performing the acts of inspection. But it is evident from Section 1116, Revised Statutes 1899, that it is the policy of the state to re-imburse the sheriff for all money expended by him in the performance of his duties. (Bringolf v. Polk Co., 41 Ia. 554.)

Henry C. Miller, for defendant in error.

The service of the sheriff under the horse inspection law is rendered in the interest of the county and the public, in the performance of a police measure, and is such a service as is compensated for by the fixed salary provided for by law. The purpose of the inspection law was to protect the rightful owners of horses against clandestine removals. (Faith v. State, 32 Tex. 374; Houston v. State, 13 Tex.App. 600.)

The service is demanded by the shipper, not in his own interest, but because the law requires him to do so, and inflicts a penalty upon him if he neglects such duty. It would be difficult to believe that the services to be performed by the inspector, and the duties imposed upon the shipper, are not for the benefit of the public. The reason for such a law is apparent. The terms "civil cases," "civil causes," and "civil actions," are used in the constitution with reference to matters in court. And the term "civil cases" is defined as "a suit at law to redress the violation of some contract, or to repair some injury to the property, or to the person or personal rights of individuals." (7 Cyc. 153; Converse v. R. Co., 18 Mich. 459.) "Cases" and "causes" are used as synonymous in statutes and judicial decisions, each meaning a proceeding in court; a suit; an action. (Blyn v. U.S. 80 U.S. 581; Theisen v. Johns, 72 Mich. 285; Erwin v. U.S. 37 F. 470.) A civil action is a proceeding in a court of justice by one party against another for the enforcement or protection of a private right, or for the redress and prevention of a private wrong. (Brown v. Crego, 29 Ia. 321; Iowa v. Ry. Co., 37 F. 497; Jefferson v. Philpot, 66 Ark. 233.) "Cases" is used synonymous with "causes" or "action." (Beecher v. Allen, 5 Barb. 169.) If the intent to allow the inspector the inspection fees by way of compensation is present in the statute, it is there only by inference, for it is not so specifically declared. Fees allowed to public officers are matters of strict law, depending upon the provisions of the statute. (U. S. v. Shields, 153 U.S. 88.) It is not the province of the court to read into the law something which will make the fees belong to the inspector. The constitutional debates show that civil actions in court were in the mind of the convention when framing Section 2 of Article XIV of the Constitution with reference to the salary and fees of the sheriff; and they show that it was intended that the sheriff should be compensated by a salary for all his public services rendered to the county.

POTTER, JUSTICE. BEARD, C. J., concurs. SCOTT, J., did not sit.

OPINION

POTTER, JUSTICE.

The plaintiff, Charles Messenger, alleging that he was and had been since January 1, 1906, the sheriff of Converse county commenced this action in the district court in that county on April 7, 1908, to recover from the county certain fees amounting to $ 340.30 collected by him as provided by law for the inspection of horses; the said fees having been paid into the county treasury, as alleged in the petition, under an oral agreement with the county commissioners that the same should be held in a separate fund pending a judicial determination of the right of the plaintiff and defendant respectively to the fees so collected. The petition was demurred to on the specific ground that the fees belong to the county, and that it was the duty of the plaintiff to account for and pay the...