Taxpayers' League of Carbon County v. McPherson

• Decision Date: 11 February 1936
• Docket Number: 1951
• Citation: 54 P.2d 897,49 Wyo. 251
• Parties: TAXPAYERS' LEAGUE OF CARBON COUNTY, WYOMING v. McPHERSON, ET AL
• Court: Wyoming Supreme Court

54 P.2d 897

49 Wyo. 251

TAXPAYERS' LEAGUE OF CARBON COUNTY, WYOMING v. McPHERSON, ET AL

No. 1951

Supreme Court of Wyoming

February 11, 1936

RESERVED QUESTIONS from the District Court of Carbon County V. J. TIDBALL, Judge.

Action by Taxpayers' League of Carbon County, Wyoming, against John McPherson and the United States Fidelity & Guaranty Company. On reserved questions.

For the plaintiff there was a brief and oral argument by N. R Greenfield and Harold M. Johnson, of Rawlins.

Pertinent sections of the State Constitution are Article III, Sec. 32; Article XIV, Sections 1-3. The salaries of sheriffs are fixed by Section 30-802 and Sections 30-803, 804, 805, 806. See also Laws 1921, Chapter 103; Laws 1933, Chapter 66 and Section 30-113 and 30-118, R. S. 1931. The term "official emolument" is defined in the case of Reals v. Smith, 8 Wyo. 159. If the statute allowing county officers compensation for the use of their private automobiles in the performance of their official duties intended that such officers should derive a gain or profit such statute violates Section I, Article XIV of the Constitution. Board v. Burns, (Wyo.) 29 P. 894; see also Davis v. Commissioners, (Wyo.) 35 P. 467; Guthrie v. Commissioners, (Wyo.) 60 P. 229; Commissioners v. Mulholland, 136 P. 112; Nickerson v. Winslow, 22 Wyo. 126; State v. Bernweiser, 30 Wyo. 314. As to inspection fees, see Messinger v. Board, (Wyo.) 117 P. 126, also Board v. Blakely, (Wyo.) 123 P. 72. Mileage allowed by law is not a fee or emolument, but a reimbursement of expenses incurred, but not to add to or subtract from the officer's salary. Bouvier's Law Dict. The statute of 1933 provides that an official should not collect to "exceed" eight cents per mile, meaning that he can collect only his actual and necessary traveling expenses. Constitutional prohibitions against changing the compensation of public officers during their terms are not intended as limitations upon legislative authority to increase or diminish expenses of such officials. State v. Thomason, 221 S.W. 491 and cases cited. The Constitution allows the sheriff a salary of $ 2,000 per year, and statutory fees received from the party for whom services are rendered in civil cases. So, the county cannot be called upon to pay more than the $ 2,000 annual salary and his actual official expenses in the performance of his duties. All the authorities hold that it was the salary for officials' services to be rendered and not the incidental expenses of the office that the legislature is forbidden by Section 32, Article III of our Constitution to change. State v. Clausen, (Wash.) 253 P. 805; Fergus v. Russel, (Ill.) 110 N.E. 887; State v. Turner, (Kan.) 233 P. 510; State v. Raine, (Ohio) 31 N.E. 741; Leckenby v. Company, (Colo.) 176 P. 490; Reed v. Gallet, (Idaho) 299 P. 337; Dougherty v. Austin, (Cal.) 28 P. 834; Red Willow Co. v. Smith, (Nebr.) 93 N.W. 151; Houser v. County, (Ore.) 49 P. 867. An under-sheriff has no term of office. Delfelder v. Company, (Wyo.) 24 P.2d 702. A deputy or under-sheriff is probably a public officer. 22 R. C. L. 583. But he is not such a public officer as contemplated by the constitution with respect to a change in salary or emoluments after his appointment. A deputy or under-sheriff is removable at the pleasure of the appointing sheriff. The rule as to changing his compensation is stated in 37 L. R. A. (N. S.) 389; also State v. Gordon, (Mo.) 142 S.W. 315; Throop on Public Officers, Sec. 304; Somers v. State, 58 N.W. 804. Other cases sustaining the rule are: Bayley v. Garrison, (Cal.) 214 P. 871; Com'rs. v. Hart, (Okla.) 119 P. 132; State v. Gordon, (Mo.) 142 S.W. 315; Bowers v. City, (N. M.) 200 P. 421; Quernheim v. Asselmeier, (Ill.) 129 N.E. 828; People v. Stong, (Colo.) 189 P. 27; Reagon v. United States, 182 U.S. 414; State v. Hedrick, (Mo.) 241 S.W. 403; State v. Neal, (W. Va.) 139 S.E. 757. Chapter 54 of the Laws of 1931, amending Chapter 103, Section 1 of the Laws of 1921, provides for compensation for use of automobiles by state and county officers, and Chapter 66 of the Laws of 1933, amending the Act of 1931, did not increase or diminish the salary or emoluments of any state or county officers.

For the defendant, there was a brief and oral argument by R. R. Rose, of Casper.

The statutory provisions involved are Chapter 54 of the Laws of 1931 and Chapter 66 of the Laws of 1933. The Act of 1931 attempted to reduce the compensation for the use of privately owned vehicles of officers from fifteen cents to ten cents per mile and is unconstitutional. The Act of 1933 is also unconstitutional, so far as it attempts to affect the compensation of the defendant for the use of his vehicle during his term of office. Article III, Section 32 of Constitution. Compensation allowed an officer for the use of his privately owned vehicle is an emolument within the meaning of Article III, Section 32. Article XIV, Section 1 of the Constitution, with the exceptions noted therein, provides that public officers shall be paid fixed and definite salaries. The right to receive emoluments exists and is not prohibited. Reals v. Smith, (Wyo.) 56 P. 690. Emoluments of office may exist in this state (Art. III, Sec. 2) notwithstanding the requirement of Sec. 1 of Article XIV of the Constitution providing that public officers shall receive fixed and definite salaries. Board v. Burns, 3 Wyo. 691. The boarding of prisoners is an emolument, Sec. 30-819, R. S. 1931, and a free residence is likewise an emolument. The emolument in this case is similar to that growing out of statutory provisions allowing a fixed per diem for feeding prisoners, which was held in Apple v. County, (Penn.) 51 Am. Rep. 205, to be an emolument which could not be changed during the term in view of a constitutional provision similar to our Sec. 32 of Article III of the Constitution. We are unable to see wherein the case of Scharrenbroish v. County, 83 P. 482 is even persuasive in the present case. Nor are the Wyoming cases of State v. Bernweiser, 39 Wyo. 314; Messinger v. Board, 19 Wyo. 209 and Board v. Blakely, 20 Wyo. 259 applicable to the present controversy. It seems evident that an under-sheriff is appointed for a definite term. First, the appointment of an under-sheriff is mandatory under the provisions of Sec. 30-807, R. S. 1931. Second, he is to succeed to the office of sheriff in case of death, resignation or other disability of the incumbent. Third, he has a fixed annual salary. Fourth, as a matter of fact, the appointment of a deputy sheriff on file in the office of the county clerk recites that it is made for a term of two years. The Constitution clearly prohibits the increase or decrease of an officer's salary after his election or appointment. Article XIV, Sec. 3; see Harrold v. Barnum, 96 P. 104; Speed v. Crawford, 3 Metc. 207; State v. Johnson, (Mo.) 27 S.W. 399; State v. Galushi, (Nebr.) 104 N.W. 201; Somers v. State, (S. D.) 58 N.W. 204; County v. Hart, (Okla.) 119 P. 132; Matlock v. City, 134 P. 58; State v. Gordon, (Mo.) 142 S.W. 315. Most of the authorities cited by plaintiff are based upon constitutions and statutes differing from ours. This is noticeable when the cases are carefully read. Counsel for plaintiff concede that a deputy or under-sheriff in Wyoming is probably a public officer. 22 R. C. L. 583. The duties of a sheriff may be exercised by him or his deputies. Section 1389, 1473, 1474, W. C. S. 1920. We are dealing here with a statute relating to compensation for the use of property and not with mileage expenses at all. It is the duty of the state to secure the efficient administration of government by providing necessary expenses as may enable the officer to discharge his duties. State v. Thomason, 221 S.W. 491. It appears to be clear that the under-sheriff, sheriff and deputy sheriff are public officers within the meaning of Article XIV, Sec. 3 of the Constitution; that the right of such officers to use their privately owned automobiles in the discharge of their duties, and receive for such use fifteen cents under the 1921 statute, and ten cents under the 1931 statute, for each mile necessarily traveled in the discharge of their duties, is an emolument which cannot be changed after the election and appointment of the officers mentioned. Whether an under-sheriff is appointed for a definite time is immaterial, since the Constitution forbids a change in the salaries or emoluments of public officers, after their election or appointment.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J. , concur.

OPINION

RINER, Justice.

Constitutional questions reserved and certified by the district court of Carbon County on its own motion, under the procedure indicated by Sections 89-5001 to 89-5003, inclusive, of the Wyoming Revised Statutes, 1931, bring this case here prior to its final disposition in that court. The pleadings in the cause are simply the petition of the plaintiff, which seeks to recover of the defendants certain sums of money, which upon the facts therein alleged are claimed to have been unlawfully received from Carbon County by both the defendant McPherson, as sheriff of that county, and by his Deputy and Under-sheriff E. R. Watson, and rightfully should be repaid by the said McPherson and the United States Fidelity and Guaranty Company as surety on his official bond as such sheriff, and the general denial separate answers of each of the defendants.

It was stipulated by the parties that the action should be tried upon an Agreed Statement of Facts, which has been duly certified in the record now before us. From that statement we take those facts only which we deem necessary and material to be considered in disposing of the constitutional questions submitted, and briefly stated these are:

The preceding November the defendant...