Miami County Com'rs v. Hiner

• Decision Date: 10 November 1894
• Citation: 38 P. 286,54 Kan. 334
• Parties: THE BOARD OF COMMISSIONERS OF MIAMI COUNTY v. J. P. HINER, as County Treasurer
• Court: Kansas Supreme Court

38 P. 286

54 Kan. 334

THE BOARD OF COMMISSIONERS OF MIAMI COUNTY v. J. P. HINER, as County Treasurer

Supreme Court of Kansas

November 10, 1894

Error from Miami District Court.

ACTION by J. P. Hiner, county treasurer, against the County Board for salary. Judgment for plaintiff. The defendant brings the case here. The opinion states the facts.

Judgment affirmed.

W. H Browne, county attorney, for plaintiff in error:

The court below held this special fee and salary bill to be unconstitutional, on the ground that it provided for the taking effect of said bill at different times, to wit: As to the county treasurer, October 10, 1893, and as to the other officers affected by the bill, January 8, 1894, and therefore obnoxious to § 19, article 2, of the constitution of the state of Kansas--citing Comm'rs of Cherokee Co. v. Chew 44 Kan. 162. In Harvey v. Comm'rs of Rush Co., 32 Kan. 159, salaries of county officers are held not to be a contract with the county, and that no county officer has a vested right therein. It is also held in the opinion that a law diminishing the salaries of county officers during their terms is prospective, and not retroactive.

If this special fee and salary bill for Miami county is not obnoxious to § 19, article 2, of the constitution, then said bill is valid and binding upon those affected thereby. See Comm'rs of Cherokee Co. v. Chew, 44 Kan. 162. There the court does not say such a bill would be obnoxious to the constitution, but it may be.

Sperry Baker, and Jno. C. Sheridan, for defendant in error:

Is chapter 80 of the Laws of 1893 in harmony with the organic law of this state? The district court of Miami county determined that this act conflicts with the provision of § 19 of article 2 of the constitution of the state, which provides that "the legislature shall prescribe the time when its acts shall be in force," while the act in question provides: "SEC. 5. This act shall take effect and be in force from and after its publication in the statute book and after January 8, 1894, except the county treasurer hereinbefore named, which shall take effect as to said county treasurer after October 10, 1893." The provision of the constitution above quoted clearly contemplates that the legislature shall fix some definite time, not times, when an act shall take effect, for the words "the time" manifestly forbid any other construction. And this court, in the case of Comm'rs of Cherokee Co. v. Chew, 44 Kan. 162, has very clearly indicated that this is the true construction. See, also, Supervisors v. Keady, 34 Ill. 293; Wheeler v. Chubbuck, 16 id. 361.

But the law in question now cannot be construed to take effect at one and the same time as to all the officers affected, for by the express terms of § 5 it was to take effect as to the county clerk, county attorney, superintendent and clerk of the district court after January 8, 1894, and as to the county treasurer after October 10, 1893.

JOHNSTON, J. HORTON, C. J., concurring. ALLEN, J., dissenting.

OPINION

JOHNSTON, J.:

At its last session, the legislature attempted to enact a special law fixing the fees and salaries of certain county officers in Miami county, which was approved March 9, 1893. (Laws of 1893, ch. 80.) It purports to regulate the compensation of the county treasurer, county clerk, county attorney, county superintendent, and clerk of the district court, and provides that some of them shall report all the fees that they receive in an official capacity, and these are to be paid into the county treasury and credited to the general county fund. There is a further provision that a failure to account for the fees, or the making of a false or fraudulent statement with reference to them, shall be deemed a misdemeanor, for which a certain punishment is prescribed. The last section, fixing the time when the special act shall become a law, is as follows:

"This act shall take effect and be in force from and after its publication in the statute book, and after January 8, 1894, except the county treasurer hereinbefore named, which shall take effect as to said county treasurer after October 10, 1893."

On the 4th of January, 1894, J. P. Hiner presented his claim for salary and compensation from October 1, 1893, to December 31, 1893, under the general law, but the county commissioners, assuming that the special law was in force as to the county treasurer from October 10, 1893, only allowed so much as would be due under its provisions. An appeal was taken to the district court, where it was admitted that the claim presented was just and correct, provided the old law was in force, and that the amount allowed by the commissioners was correct, provided the new or special act was in force. The decision of the district court was that the special act is unconstitutional and void, for the reason that it did not prescribe the time when it should be in force as required by § 19 of article 2 of the state constitution, and judgment was accordingly given in favor of the treasurer.

The constitutional limitation referred to provides that "the legislature shall prescribe the time when its acts shall be in force." This provision plainly requires that the legislature shall fix a single definite time when its act as an entirety shall become a law. According to the practice and legislative course in this state, the last section of every act fixes a definite time when the act as a whole shall go into effect. It is sometimes by publication in a newspaper in the statute book, or at some fixed time after a publication has been made. It was not intended that one section or provision of an act should become a law, while other sections or provisions of the same act were in an inchoate and embryonic stage. A legislative act, whether general or special, is passed as an entirety, approved as an entirety, and the generally accepted interpretation of the constitutional limitation is that it must become a law as an entirety. This was the view taken in Comm'rs of Cherokee Co. v. Chew, 44 Kan. 162, where it was held that an act should go into effect at a fixed time, and not by piecemeal. ...