State ex rel. Rusch v. Board of Com'rs of Yellowstone County

• Decision Date: 06 March 1948
• Docket Number: 8793.
• Parties: STATE ex rel. RUSCH v. BOARD OF COUNTY COM'RS OF YELLOWSTONE COUNTY et al.
• Court: Montana Supreme Court

191 P.2d 670

121 Mont. 162

STATE ex rel. RUSCH v. BOARD OF COUNTY COM'RS OF YELLOWSTONE COUNTY et al.

No. 8793.

Supreme Court of Montana

March 6, 1948

Rehearing Denied April 20, 1948.

Appeal from District Court, Thirteenth District, Yellowstone County Ben Harwood, Judge.

Mandamus proceeding by the State, on the relation of C. H. Rusch, to compel the Board of County Commissioners of Yellowstone County and Charles E. Wicks, as Chairman of said Board, to pay the salary due him as a deputy sheriff during a period of illness. From the judgment, relator appeals.

Judgment affirmed.

Stanley E. Felt and James R. Felt, both of Billings, for appellant.

R. V Bottomly, Atty. Gen., Clarence Hanley, Asst. Atty. Gen., and Melvin E. Hoiness, County Atty., and E. E Collins, Deputy County Atty., both of Billings, for respondents.

GIBSON Justice.

The appellant was appointed as a deputy sheriff of Yellowstone county on February 20, 1945. His appointment had not been revoked on October 21, 1946, when his amended affidavit and application for writ of mandamus was filed in the district court. He rendered no service and performed no duty as such deputy during the months of April, May and June of 1945. This was because of sickness that incapacitated him from performing any service.

He was paid the salary fixed by the board of county commissioners for sheriffs' deputies for the time prior to and after the three months' period in which he did not act and rendered no service. From his affidavit for the writ it appears that it was not until January 1946 that he demanded of the board of county commissioners payment of salary for the three months' period in which he was unable to act as deputy sheriff, and this demand was refused on August 31, 1946. Thereafter he filed in the district court his affidavit and application for writ of mandamus to compel the board of county commissioners to issue an order to the proper disbursing officers of Yellowstone county directing the issuance of a warrant or warrants to appellant, relator in said proceeding, 'for the payment of the salary due this applicant for the months of April, May and June, 1945.' The respondent board of commissioners filed demurrer to the affidavit and application for the writ and motion to quash the alternative writ. The demurrer was sustained, the motion to quash the writ granted and judgment of dismissal of the proceeding entered. The appeal from the judgment brings the matter here.

The question presented is the narrow one, 'Does the rule, that the salary fixed by law for compensation to a public officer is an incident to the office and belongs to the one who holds the legal title to the office, apply to a deputy sheriff?' This general rule is announced in 43 Am.Jur. 136, and in 46 C.J. 1015. It is the rule in Montana. Wynne v. City of Butte, 45 Mont. 417, 123 P. 531.

But is a deputy sheriff a 'public officer' within the meaning of this rule? It has been aptly said that 'the words 'public office' are used in so many senses that the courts have affirmed that it is hardly possible to undertake a precise definition which will adequately and effectively cover every situation.' 21 Cal.Jur. 819.

This court said, 'Courts and text-writers have undertaken to define the term 'public office,' and to prescribe certain criteria by which to determine whether, in a given instance, a public office is involved, but their efforts have been expended with rather indifferent success. The tests applied and found sufficient in one case have proved altogether inapplicable in another.' State ex rel. Boyle v. Hall, 53 Mont. 595, 165 P. 757.

A definition that embraces the idea of a pubic officer as one who occupies an office through which the state thinks, acts and administers the laws, as distinguished from those subordinates, assistants and helpers who act only through and under their principal, is given by the Pennsylvania court as follows: 'Where, however, the officer exercises important public duties, and has delegated to him some of the functions of government, and his office is for a fixed term, and the powers, duties, and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a 'public officer." Richie v. City of Philadelphia, 225 Pa. 511, 74 A. 430, 431, 26 L.R.A.,N.S., 289.

The Constitution of Montana provides that 'Except as otherwise provided in this constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment.' Sec. 31, art. V. It was held that deputies and assistant county officials are not 'public officers' within the meaning of the term as used in the Constitution. Adami v. County of Lewis & Clark, 114 Mont. 557, 138 P.2d 969. And it is held also, that one who holds a position at the will of the appointing power is not usually classed as a public officer. State ex rel. Boyle v. hall, supra; State ex rel. Nagle v. Page, 98 Mont. 14, 37 P.2d 575; State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583.

As the term is used in the rule referred to and relied upon by appellant, a deputy is not a 'public officer.' He holds only at the pleasure of the appointing power. Sec. 422, Rev.Codes of Montana 1935. 'When the number of such deputies or subordinate officers is not fixed by law, it is limited only by the discretion of the appointing power.' Sec. 421, Rev.Codes. These subordinates are not officers within the sense of the term as employed in the Constitution, or in statutes enacted pursuant thereto, nor as used by the courts in announcing the rule that the salary attached to the public office shall belong to the de jure public officer. It is true that 'the distinction between a public office and a public employment is not always clearly marked in judicial expression' (editorial comment, 150 A.L.R. 101), but the statutes and decisions in Montana relating to the status of deputies necessitate the holding that such subordinates and not 'public officers' who may receive the compensation prescribed for their services merely by virtue of their appointment, without regard to whether they render service in the position or not. A few fundamental definitions and a consideration of the applicable statutes appear to settle the question.

A deputy is one who is 'appointed as the substitute of another, and empowered to act for him, in his name, or on his behalf.' Merriam-Webster's International Dictionary. Thus a deputy sheriff is not the sheriff; he is merely the substitute of the sheriff; he can only act in the name of the sheriff; he performs no independent function of office. The office of sheriff is not his office. He is but the agent of the officer, deputed by him to act in his name and by his authority. He holds no term of office. His right and authority to act as substitute or deputy for the sheriff is at the pleasure of that officer. Sec. 422, Rev.Codes. It may be revoked at any time, with or without cause. 'Term' when applied to the holding of a public office, refers to a fixed and definite period of time.

It is also held that permenency or continuity of the tenure is an element necessary to make the holder of a position a public officer. State ex rel. Nagle v. Stafford, 97 Mont. 275, 34 P.2d 372; State ex rel. Nagle v. Kelsey, 102 Mont. 8, 55 P.2d 685.

The boards of county commissioners are given power, within limits set in the statute, to fix compensation allowed any deputy or assistant, and wide discretion to fix and determine the number of deputy county officers and assistants that may be 'needed for the faithful and prompt discharge of the duties of any county office.' Sec. 4874, Rev.Codes 1935, as amended.

It is also in said statute provided that 'Where any deputy or assistant is employed for a period of less than one year the compensation of such deputy or assistant shall be for the time so employed.' This appears to consider the service of deputies and assistants as an 'employment.'

Section 4878, Revised Codes 1935, also provides that the board of county commissioners in each county is authorized 'to allow the several county officers to appoint a greater number of deputies than the maximum number allowed by law when, in the judgment of the board of county commissioners, such greater number of deputies is needed for the faithful and prompt discharge of the duties of any county office, and to fix the salary of such deputies * * * provided, such salary shall not exceed the maximum salary of deputies provided by law.'

Section 4891 of the Revised Codes provides that the board of county commissioners 'must not order the payment of the compensation of any deputy until he has signed and filed with the county clerk the following affidavit: * * * I do swear that I have rendered services as deputy _____ for the month of _____, 19__, and that I am entitled to receive the full sum of my compensation for the same for my own use and benefit, and that I have not paid, deposited, or assigned, nor contracted to pay, deposit, or assign any part of such compensation for the use of any other person, * * *.'

The affidavit and application of relator says that he 'has filed the affidavit with the county clerk and recorder of said county, required by section 4891 of the Revised Codes of the State of Montana.' It is not stated therein, however that relator rendered any services or performed any duty as deputy sheriff for the months of April, May and June, 1945. In his brief he alleges that he filed the affidavit 'through an abundance of caution,' but admits that he did not render service as deputy sheriff for the three months' period of his serious illness, basing his claim for compensation squarely upon the proposition that ...