Nickerson v. Winslow
| Decision Date | 03 February 1914 |
| Docket Number | 765 |
| Citation | 138 P. 184,22 Wyo. 259 |
| Parties | NICKERSON ET AL. v. WINSLOW, AS COUNTY AND PROSECUTING ATTORNEY |
| Court | Wyoming Supreme Court |
Rehearing Denied May 15, 1914, Reported at: 22 Wyo. 259 at 270.
ERROR to the District Court, Fremont County; HON. CHARLES E WINTER, Judge.
The action was brought by H. G. Nickerson and others, as taxpayers of Fremont County, and in behalf of all the taxpayers of the County, to recover from Loren E. Winslow, an alleged excess of salary received by him as County and Prosecuting Attorney of said County. From a judgment in favor of the defendant the plaintiffs brought error.
Affirmed.
John J Spriggs, for plaintiffs in error.
The defendant's salary is fixed by the salary act of February 17, 1911. Section 1 of Article 14 of the Constitution expressly authorizes an act for that purpose. That provision is mandatory and requires that the Legislature shall "from time to time" fix or readjust salaries in proportion to the value of services rendered and the duty performed, which means in proportion to the ability of the people to pay. (Comm'rs. v. Burns, 3 Wyo. 703, 704). The criterion of the ability of the people to pay being wealth, the spirit and mandate of the constitutional provision is that a county classified as a second-class county is able to pay a salary fixed to be paid by second-class counties. Changes in the methods of assessment immediately prior to the act of 1911, which caused a great increase in the assessed valuation of all counties, without a corresponding increase in actual wealth, was the occasion, and sufficient reason, for the change made by the amendatory act. Courts cannot interfere with the operation of a statute, or nullify it unless the subject matter is unconstitutional. (Hillborne v. Nye, (Cal.) 114 P. 803). All presumptions are in favor of the constitutionality of the statute, and it must appear beyond doubt that the subject matter of the act is unconstitutional before it will be so held. (Daugherty v. Austin, (Cal.) 29 P. 1099; Swan v. U.S. 3 Wyo. 150; Miller v. Henry, (Ore.) 124 P. 197; Patterson v. State, (Okl.) 124 P. 942). The subject matter of the act of 1911 is admittedly constitutional. The theory of the constitutional provision (Sec. 32, Art. 3) prohibiting an increase or decrease in the compensation of a public officer after election is to forbid any change by subsequent act, as by design or scheme which would change the salary from that which the official understood it to be when he was elected. Such an evil is not possible by upholding the act of 1911, and applying it to the salary of the defendant. (Comm'rs. v. Burns, supra; State v. Burdick, 4 Wyo. 272). The Constitution intends that there shall be a fixed and definite salary for the term. The act of 1911 does not change that. It was clearly the intention of the Legislature to provide for a change in salaries commencing with the next official term, and to continue during that term. An officer accepting a public office with a fixed salary must perform the duties of that office for that compensation even though it may prove to be inadequate. (Moore v. Nation, 103 P. 113; Evans v. Trenton, 24 N. J. L. 764). The act aforesaid noes not change the defendant's salary after his election within the meaning of the constitutional inhibition. (Davis v. Comm'rs., 4 Wyo. 477; Guldin v. Schuylkill, (Pa.) 24 A. 171). The change was automatic and not a result of the law taking effect, for the law does not fix the salary directly but only upon the basis of the classification of the county according to assessed valuation from time to time. (See Smith v. Mathews, 103 P. 199). The act of 1911 should be held to apply to defendant's salary since it took effect before the commencement of his term and was clearly intended to apply to that term. (Puterbaugh v. Wadham, 123 P. 604; McNew v. Comm., (Ky.) 93 S.W. 1047, 100 S.W. 324; Stuhr v. Hoboken, 47 N. J. L. 147; Crockett v. Mathews, 106 P. 575; Smith v. Mathews, 103 P. 199; Applestill v. Gary, 123 P. 228; Williams v. Gary, 127 P. 825). The function of the court in the case at bar is purely one of construction, and the statute should be construed as plainly intended, that is, to make a provision as to salary so as not to affect incumbents, but those who might be elected for the new term to commence in January, 1913. Nothing else could have been intended. In the matter of construction of the statute the letter must give way to the spirit. (Hicks v. Krigbaum, 108 P. 482, 484; Frisbe v. State, 127 P. 1097). The assessed valuation was determined before election. The act was passed two years prior to the election. The only change in the act so far as this case is concerned is in raising the amount of the valuation to constitute a first-class county. The resulting change in the salary is therefore not by a law passed after election, nor by a change during the term caused by a change in the assessed valuation--which would be equivalent to a law passed after election. The act therefore does not violate the constitutional inhibition as to a change in salary. The intent must govern the construction of the staute. (State v. Ducker, 127 P. 993; State v. High, 130 P. 614; Odell v. Rihn, 127 P. 802; Ex parte Russell, 126 P. 876; Ex parte Hunnicutt, 123 P. 119; Richardson v. El. & P. Co., 118 P. 985; Ins. Co. v. Hattabaugh, 123 P. 82; Broomfield v. Holland, 114 P. 891; State v. Long, 117 P. 104; Schaake v. Dolley, 118 P. 80, 84; Est. of Chadbourne, 114 P. 1014; People v. Earl, 124 P. 183; State v. Hamilton, 111 P. 1027; State v. Radford, 109 P. 284; Uxell v. Lunney, 104 P. 949; Burton v. U. P. Coal Co., (Wyo.) 107 P. 397; Young v. Regents &c., 124 P. 156). It must not be presumed that the Legislature intended an unreasonable result or one violative of the Constitution. (State v. Hooker, 109 P. 448; Comm'rs. v. Woods, (Wyo.) 107 P. 754; State v. Duis, 116 N.W. 751). Every citizen is charged with notice of the taking effect of all laws. The statute in question was notice of the change to occur when the act should take effect. (State v. Ry. Co., 212 Mo. 658, 111 S.W. 500; State v. Ry. Co., 136 Wis. 407, 117 N.W. 686).
Loren E. Winslow, for defendant in error.
The act of 1911 changing the classification of counties for the purpose of fixing the compensation of county officers did not take effect or go in force until December 31, 1912, and therefore it was not a law until that time, but until then, it was a nullity. . It was then inoperative as to the salary of the defendant in error or county officers elected or appointed before that day, because of the constitutional provision that no law shall increase or diminish the salary of a public officer after his election or appointment. (Comm'rs. v. Burns, 3 Wyo. 691; State ex rel. v. Burdick, 4 Wyo. 272; Davis v. Comm'rs. 4 Wyo. 477; Guthrie v. Comm'rs., 7 Wyo. 95; Comm'rs. v. Mulholland, 136 P. 112; Harrison v. Colgan, supra; Woods v. Potter, 95 P. 1125; Smith v. Mathews, 103 P. 199; McNew v. Nichols Co., (Ky.) 100 S.W. 324; James v. Barry, 128 S.W. 1070; Comm'rs. v. Henry, (Okl.) 126 P. 761). There was no change in the assessed valuation that caused the supposed change in the salary, but if any change was made in the salary it was the result of a law which took effect after the election, and is to be construed as though it was enacted on the day that it took effect. The argument by opposing counsel with reference to the ability of the county to pay salaries entering into the theory of the constitutional provision respecting limitations upon salaries is beside the question and inapplicable in any discussion of the statute here involved.
POTTER, J., did not sit.
The parties to this action were respectively plaintiffs and defendant in the court below, and will be so referred to here. The plaintiffs were taxpayers and brought this action in the county for and on behalf of all the taxpayers of said county in the District Court of Fremont County to recover from the defendant for excess in salary as County and Prosecuting Attorney, charged, allowed and received by him as it is alleged contrary to the statute fixing his salary. It is admitted that the defendant was elected to that office at the general election held November 5, 1912, and qualified as such officer on January 6, 1913, and that plaintiff claimed and was drawing from the county as compensation for his services the sum of $ 125 per month, and had drawn such sum for the months of January, February, March and April prior to the time of the commencement of this action. It is alleged in the petition that the county became and was a county of the second class from and after December 31, 1912 under and by virtue of the amount of the assessed valuation of said county and the provision of law of the State. It is alleged in the answer and denied in the reply that the last assessment roll of said county made and returned before defendant's election shows the assessed valuation of said county to be the sum of $ 10,286,368.82, and it is claimed that upon such assessment the County of Fremont was under the law in force at the time of his election a county of the first class, and that for that reason defendant was entitled under the law to charge and receive as salary for his services the sum of $ 1500 per year, or $ 125 per month, that being the...
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