Stookey v. Board of Com'rs of Nez Perce County

• Decision Date: 09 May 1899
• Citation: 57 P. 312,6 Idaho 542
• Parties: STOOKEY v. BOARD OF COUNTY COMMISSIONERS OF NEZ PERCES COUNTY
• Court: Idaho Supreme Court

57 P. 312

6 Idaho 542

STOOKEY v. BOARD OF COUNTY COMMISSIONERS OF NEZ PERCES COUNTY

Supreme Court of Idaho

May 9, 1899

CONSTITUTIONAL LAW-SALARIES-COUNTY OFFICERS-PUBLIC POLICY. The legislature has authority to provide by statute the maximum and minimum salary of county officers, and may vest in the boards of county commissioners the discretionary authority of determining the amount of salary of county officers within the limit of such maximum and minimum salary, except the salary of such county commissioners. Public policy forbids that any officer be empowered to fix his own compensation.

(Syllabus by the court.)

An original proceeding supreme court.

Writ denied. Costs awarded to neither party.

C. J Orland and James W. Reid, for Plaintiff.

Section 7 of article 18 of the constitution provides that the salaries of county officers shall be "a fixed annual salary." The legislature might perhaps have been nearer the constitutional requirement had it provided that the salaries be fixed annually. It would then have had an annually fixed salary, which it now has not. Instead of having a fixed salary, by this act we have a fluctuating salary, according to the whim, extravagance, parsimony or political prejudice which may control the minds and acts of men, and more especially is this true if the present board of commissioners can fix the salaries of the present officers. By section 1 of article 3 of the constitution the legislative power of the state is vested in a Senate and House of Representatives, and by section 5 of article 18 it is provided that "The legislature shall establish . . . . a system of county governments." By the provisions of section 1 of article 3, all legislative power is vested in the bodies provided for, and by section 5 of article 18, this body is expressly charged with certain duties as to counties. These sections do not provide, nor by any implication can they be construed as authorizing the legislature to delegate or shift the burden of legislation to the several counties of the state, as to their system of government or any part of it, which this act directly attempts to do. It delegates to the board of county commissioners of the several counties to legislate or enact a law as to the compensation which shall be paid themselves for the next two years, and all other of the county officers now in office, and also for the county officers to be elected for the next two years, and every two years thereafter the boards resolve themselves into a legislature and proceed to enact salary laws for their successors. By the clearest implication the legislature would be prohibited from conferring authority upon such boards to fix the salaries of other county officers. (Page v Allen, 58 Pa. St. 338, 98 Am. Dec. 272.) The usual and elementary construction of constitutions require uniformity and ours is no exception to the rule. The expression is repeatedly used, and by necessary implication must be so (Miller v. Kister, 68 Cal. 142, 8 P. 813; Smith v. Judge, 17 Cal. 554.) Local and special laws are expressly prohibited by the constitution with reference to officers' salaries during their term of office. (Section 19 of article 3, last paragraph of constitution; Smith v. McDermott, 93 Cal. 421, 29 P. 34; People v. Central Pacific Ry., 83 Cal. 393, 23 P. 303; Am. & Eng. Ency. of Law, 1st ed., 695.) This is an attempt at clear delegation of legislative authority by the legislature to twenty-one boards of county commissioners or twenty-one legislative bodies, who, if their act is valid, are authorized to exercise important functions. We claim that such power cannot be delegated. (State v. Simons, 32 Minn. 540, 21 N.W. 750; Commonwealth v. Addams, 95 Ky. 588, 26 S.W. 581; Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N.W. 738; State v. Young, 29 Minn. 474, 9 N.W. 754; Ex parte Wall, 48 Cal. 315, 17 Am. Rep. 425; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495; Dougherty v. Austin, 94 Cal. 601, 28 P. 834, 29 P. 1092.) This act by reason of its operation is special, as it is to be applied to each of the counties of the state, at the arbitrary discretion of the boards of county commissioners of each county, and will act upon each county in an independent manner without any regard to uniformity or classification, and its effect in each county is to that county alone. (City of Topeka v. Gillett, 32 Kan. 431, 4 P. 800.) The salaries of the officers of counties is a part of the county government. (Longan v. County of Solano, 65 Cal. 123, 3 P. 463.) Under the provisions of section 5 of article 18, the constitution must be uniform throughout the state, and which has been conclusively demonstrated by the actions of the various boards, in the fixing of the salaries, has not been obtained, and of necessity cannot be, and is therefore in violation of this section of the constitution. (State v. Boyd, 19 Nev. 43, 5 P. 735; Dougherty v. Austin, 94 Cal. 603, 28 P. 834, 29 P. 1092; Miller v. Kister, 68 Cal. 142, 8 P. 813; Smith v. Judge, 17 Cal. 554.)

S. H. Hays, Attorney General, for Defendants.

It is true that few laws of exactly this kind have been before the courts for adjudication, but this argument is the same which is usually most strenuously advanced against laws which classify counties, either by population or taxable property, it being contended in those cases that the legislature, knowing the population or taxable property of each county and fixing the classification on that basis, might as well have named each county specifically. The argument is as valid against the classification system as against the one in question. The classification system has, however, been held to be clearly constitutional. (Harwood v. Wentworth, 162 U.S. 547, 16 S.Ct. 890; Seabolt v. Commissioners, 187 Pa. St. 318, 41 A. 22.) Special laws are those made for individual cases, or for less than a class requiring laws appropriate to its peculiar condition and circumstances; local laws are special as to place. (Sutherland on Statutory Construction, sec. 127; Tulare Co. v. May, 118 Cal. 303, 50 P. 427; Stone v. Wilson, 19 Ky. Law Rep. 126, 39 S.W. 49; People v. Onahan, 170 Ill. 449, 48 N.E. 1003; Fleckenstein v. Placer Co. (Cal.), 37 P. 931; Johnson v. Mocabee, 1 Okla. 204, 32 P. 336; McInerney v. City of Denver, 17 Colo. 302, 29 P. 516; People v. Dunn, 157 N.Y. 528, 52 N.E. 572.) It has been the policy of our laws for many years to empower county boards to fix the salaries of county officers. (Ryan v. Outagamie County, 80 Wis. 336, 50 N.W. 340; Staples v. Llano County, 9 Tex. Civ. App. 203, 28, S.W. 569; Stanfield v. State, 83 Tex. 317, 18 S.W. 577; Stone v. Wilson, 19 Ky. Law Rep. 126, 39 S.W. 49.) In a constitutional sense, however, these duties cannot be said to be legislative, executive or judicial, but, as modern law-writers term them, they are purely administrative. Administrative duties of this kind are frequently imposed upon boards. (Board of Commissioners v. Smith, 22 Colo. 534, 45 P. 357; Board of Directors v. Collins, 46 Neb. 411, 64 N.W. 1086; Nelson v. Troy, 11 Wash. 435, 39 P. 974; Board of Law Library Trustees v. Board of Supervisors, 99 Cal. 571, 34 P. 244; 8 Am. & Eng. Ency, of Law, 911; People v. Kipley, 171 Ill. 44, 49 N.E. 229; 6 Am. & Eng. of Law, 2d ed., 1029; Miller v. State, 149 Ind. 607, 49 N.E. 894.) The fact that an alternative is open to the commissioners in administering the law is no proof of lack, of uniformity. (Hellman v. Shoulters, 114 Cal. 136 (146), 44 P. 915, 45 P. 1057.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This is an original proceeding, commenced by the plaintiff, who is clerk of the district court and ex-officio auditor and recorder in and for Nez Perces county, to obtain a writ of prohibition prohibiting the defendants, as commissioners of said county, from fixing the salary of the plaintiff as said officer for the years 1899 and 1900. The contention upon which this proceeding is based is that the act of March 7 1899, known as the "County Salary Bill," is in contravention of the constitution and void. By joint resolution submitted to the electors of the state by the legislature at its fourth session, 1897, and adopted at the general election in November, 1898, section 7, article 18, of the constitution was amended so as to read as follows: "Sec. 7. All county officers, and deputies when allowed, shall receive, as full compensation for their services, fixed annual salaries, to be paid quarterly out of the county treasury, as other expenses are paid. All actual and necessary expenses, incurred by any county officer or deputy in the performance of his official duties, shall be a legal charge against the county, and may be retained by him out of any fees which may come into his hands. All fees, which may come into his hands from whatever source, over and above his actual and necessary expenses, shall be turned into the county treasury at the end of each quarter. He shall, at the end of each quarter, file with the clerk of the board of county commissioners a sworn statement, accompanied by proper vouchers, showing all expenses incurred and all fees received, which must be audited by the board, as other accounts." The act of March 7, 1899, was enacted for the purpose of carrying into effect the above provision of the constitution. Said act...