Minnehaha County v. Thorne

• Decision Date: 05 January 1895
• Citation: 6 S.D. 450,61 N.W. 688
• Parties: MINNEHAHA COUNTY, Plaintiff and respondent, v. ALBION THORNE, Defendant and appellant.
• Court: South Dakota Supreme Court

6 S.D. 450

61 N.W. 688

MINNEHAHA COUNTY, Plaintiff and respondent,

v.

ALBION THORNE, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Reversed Bailey & Voorhees, Sioux Falls, SD Aikens & Brown Attorneys for appellant. Opinion filed Jan. 5, 1895

FULLER, J.

This is an appeal from an order of the circuit court for Minnehaha county overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action was brought to remove said Thorne from the office of clerk of the circuit court for said county, under the provisions of § 1387, 1388, Comp. Laws; the ground of complaint being that, as such clerk, he did not account for, and pay over to the board of county commissioners, all the money received by him as fees and per diem in the years 1892 and 1893 in excess of $2,000 per annum, as required by the second proviso of section 10, c. 81, Laws 1890.

Sections 1387 and 1388 are as follows:

“Section 1387. All elective county, township and precinct officers may be charged, tried and removed from office for either of the causes following:

1. Habitual or wilful neglect of duty.

2. Gross partiality.

3. Oppression.

4. Extortion.

5. Corruption.

6. Wilful maladministration in office.

7. Habitual drunkenness.

8. For a failure to produce and account for all public funds and property in his hands at any settlement or inspection authorized by law.

“Section 1388. The board of county commissioners in the name of the county … may make such a charge and bring the action, and the circuit court shall have exclusive original jurisdiction thereof. The proceedings shall be as provided in the Codes of Civil and Criminal Procedure.”

The first objection urged to the complaint by appellant is that the complaint fails to show “that the action was brought by the board of county commissioners of Minnehaha county.” As more fully elaborated in the brief, the point is

“that there is no direct allegation that this action was authorized or brought by the board of county commissioners of Minnehaha county, or even a recital to the effect that it is brought in the name of the county, by or under the authority of the board of county commissioners. This, we contend, is a necessary allegation or recital to disclose a capacity in the respondent to sue, and to give the court jurisdiction over the action, for otherwise any state’s attorney or any private individual might maintain such an action, regardless of any authority therefor from the board of county commissioners of his county.”

It is also urged by counsel for appellant that the provisions of section 10, c. 81, Laws 1890, upon which this suit is based, and by which the annual compensation of the clerk of courts is fixed and determined according to the population of the county, is in conflict with section 34 of article 5 of our constitution, and therefore void, and to the question thus presented we will, for convenience, first direct our attention.

The argument is directed to that portion of the section which provides that in counties having a population of 10,000 or under the fees or compensation of the clerk shall be $1,500, and in counties having a population in excess of 10,000 it shall be $2,000 per annum; and the clerk is required to make a report to the board of county commissioners, on the 1st day of January of each year, of all the fees and per diem received by him during the preceding year, and to pay over to such board all moneys so received, if any, in excess of the amount of compensation allowed by law, and the board of county commissioners is authorized to pay out any moneys so returned to them by said clerk of courts for the payment of any necessary clerk hire. The constitutional provision relied upon by appellant is as follows.

“All laws relating to courts shall be general and of uniform operation throughout the state, and the organization, jurisdiction, power, proceedings and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments and decrees of such courts severally shall be uniform: provided, however, that the legislature may classify the county courts according to the population of the respective counties and fix the jurisdiction and salary of the judges thereof accordingly.”

The particular objection to the statute relied upon is that the classification and adjustment of compensation according to population is unjust, arbitrary, and obnoxious to the constitution, because it relates to courts, and is neither general nor uniform in its operation throughout the state, and because it tends to delegate to the board of county commissioners the power to fix the compensation of county officers, in violation of section 6 of article 9 of the constitution, which is as follows:

“The legislature shall provide by general law for such county, township and district officers as may be deemed necessary, and shall prescribe the duties and compensation of all county, township and district officers.”

We see nothing in the statute tending to authorize the board of county commissioners to fix the compensation of the clerk of courts, or to exercise any discretion in relation thereto; neither is there anything to indicate an intention on the part of the framers of the act to delegate legislative authority; and we conclude that such contention is without merit. The fact that section 34 of article 5 of the constitution requires all laws that relate to courts of the same class to be general and uniform regarding their organization, jurisdiction, powers, proceedings, and judgments, does not, as maintained by counsel, apply to the inferior officers of such courts, with force sufficient to invalidate section 10 of chapter 81 of the Laws of 1890; and the same has no special application to a legislative enactment which definitely fixes a uniform compensation for the clerks of such courts, which operates upon, and in the same manner affects, every person in the state who is brought within the relations and conditions for which it provides. According to the statute under consideration, the defendant is entitled to receive the maximum salary of $2,000, and is not injured by the provision that allows but $1,500 to clerks in less populous counties; and, although his right to question the constitutionality of the law may consequently be doubtful, we will give the matter our attention. It is evident that the requirements of section 34 of article 5 of the constitution have been fully met, if the statute has the same operation in all parts of the state, and applies in general terms to all counties therein, under the same circumstances and conditions. The constitution of Indiana prohibits, in express terms, the passage of any local or special laws in relation to the fees and salaries of the public officers of that state, and requires all laws relating thereto to be general and uniform in their operation; and a statute which provides for an increased salary to a county auditor where the population is over 15,000 was declared not to be in conflict with such constitutional provision. Hanlon v. Board, 53 Ind. 123; Groesch v. State, 42 Ind. 547; People v. Wright, 70 Ill. 388; State v. Wilcox, 45 Mo. 458. In McAunich v. Railroad Co., 20 Iowa, 338, the court says:

“These laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the law. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation.”

To the same effect, see Welker v. Potter, 18 Ohio St. 85; Suth. St. Const. 124. In our opinion, section 10 of chapter 81 of the Laws of 1890 is general in its application, and uniform in its operation throughout the state, and applies generally, uniformly, and equally to all persons brought within the relations and circumstances for which it makes provision, and therefore is not in contravention of section 34 of the fifth article of the constitution.

This brings us to the first objection urged by appellant’s counsel. When the action is brought in the name of the county the board of county commissioners is alone authorized to make either of the charges specified, and to institute the suit to remove a person who has...