Taylor v. Board of Commissioners of Big Horn County

• Citation: 11 Wyo. 106,70 P. 835
• Parties: TAYLOR v. BOARD OF COMMISSIONERS OF BIG HORN COUNTY
• Decision Date: 09 December 1902
• Court: Wyoming Supreme Court

70 P. 835

11 Wyo. 106

TAYLOR v. BOARD OF COMMISSIONERS OF BIG HORN COUNTY

Supreme Court of Wyoming

December 9, 1902

RESERVED questions from the District Court, Big Horn County HON. JOSEPH L. STOTTS, Judge.

Action against the Board of the County Commissioners of the County of Big Horn by William E. Taylor, clerk of the commissioners appointed to organize said county, to recover compensation for his services as such clerk, and certain expenditures made by him in procuring supplies for the conduct of his office. The facts are stated in the opinion.

Gustave E. A. Moeller and Parmalee & Hill, for plaintiffs.

It is contended by the plaintiffs that Lampman is entitled to the salary and per diem of a county commissioner, as provided by Section 1072, Revised Statutes, and that Taylor is entitled to the salary of a County Clerk of a county of the fourth class, which Big Horn County was, as provided by Section 1138, Revised Statutes.

The salary is an incident to the office, and the right to receive the compensation attached to an office accrues to the incumbent as a matter of course. (Ward v. Marshal, 96 Cal. 155; 31 Am. St., 198; 19 Ency. of Law, 525, and cases.) This proposition is plain, and will scarcely need elucidation. The argument of the defendants will rest rather we imagine, upon the contention that these plaintiffs were not, in contemplation of law, county officers, and therefore, not entitled to the compensation provided for such. It is asserted that the law under which Lampman was appointed commissioner, and Taylor clerk, provides no salary and that, therefore, none can be implied. It is true that no compensation is provided for under the exact statute by virtue of which these officers were appointed, but it is equally true that the salary of County Clerks in organized counties is regulated by an entirely different statute from that providing for their election.

It is manifest from this that the real question to be considered is, whether Lampman was a County Commissioner and Taylor a County Clerk of Big Horn County, for if they were they are entitled to the salary appertaining to those offices. It is objected at the outset by the defendants that they could not have been officers of the County of Big Horn, for the county was not then organized. The premise is true, but the conclusion does not follow. While Big Horn County was unorganized during the period from March 12, 1890, to January 4, 1897, it was nevertheless a county formed, created and actually existing for all purposes except judicial, revenue and election purposes, and representation in the Legislature. (Session Laws 1890, Chap. 48, Secs. 4, 5; Commissioners of Fremont County v. Perkins, 5 Wyo., 166, 177.)

It is true these officers were appointed by the Governor, but they do not thereby become state officers. Their functions are limited to the administration of county affairs. They were "electors, residing within the county," and their services were rendered to the county. A public officer is one upon whom devolve by law the exercise of certain governmental functions. If these functions are those of state government, such officer is a state officer; if of a county, a county officer. In view of the purposes for which these persons were appointed, and the duties imposed on them by statute, it would be straining both the spirit and the letter of the law to contend that they were not county officers. Seemingly, the only quetison remaining is, whether they were such county officers as are designated by general law to receive a salary--in short, was Lampman a County Commissioner, and was Taylor a County Clerk?

For the determination of this quetsion, we must, of course, look to the statute. The law under which these officers were appointed speaks of "commissioners to organize such county," and thereafter refers to them as "such commissioners," or "the commissioners," but never as "County Commissioners." It also provides for the appointment of a "clerk," and afterward refers to him as "such clerk," "said clerk," or "the clerk," but does not specifically name him as "County Clerk." Half of the plaintiffs' contention would seem to be established by the terms of the statute, but it will no doubt be argued in respect to the other half, that because the statute does not expressly say County Commissioner, and County Clerk, the officers appointed to organize the county are not such officers, and not entitled to the compensation provided for the same. To bear out this argument, it should be true that, in speaking of the commissioners of a county, the law should uniformly refer to them as County Commissioners. But the contrary is the fact. Chapter 7, Title 10, Division 1, Revised Statutes, which contains the law in relation to commissioners, refers with seeming indifference to "County Commissioners," and "commissioners." In that chapter we read of the "Board of County Commissioners, " and also of the "Board of Commissioners." If the chapter on County Clerks is more specific and repeats both words each time, there is a special reason for that use, in that there are, in organized counties, two officers known as "clerk," the County Clerk and the Clerk of the District Court. To prevent confusion, the clerk is generally designated in the statutes "County Clerk," when the official is meant.

But in the case of unorganized counties no such reason exists, as there is not clerk of court provided for, and hence "clerk" is a sufficient title.

What the officer really is must be determined by the duties to be performed by such officer. The makers of our constitution foresaw that some Legislature might seek to avoid the provisions of the constitution in regard to the compensation of officers, by changing the title of the office. The constitution has, therefore, effectually prevented such injustice by requiring the test as to an officer's compensation to be the nature of the work performed by him, and not the title by which his office may happen to be designated. (Art. 14, Sec. 5.)

The nature of these services is indicated by the statute in two ways: first, by the specific duties prescribed, and, second, by the oath required of the officers. The law providing for the organization of counties and the appointment of commissioners and clerk, specifies certain duties to be performed by these officers. (R. S., Sec. 1009.) These duties provided by this section are the same, or analogous, mutatis mutandis, with the duties imposed by law upon commissioners and clerks, respectively, of organized counties, as far as the same relate to the conduct of elections. But another index of what the law expected and required of the officers appointed under the provisions of this chapter is found in the requirement that, in qualifying, the officers must take the oaths required respectively of County Commissioners and County Clerks. The oath thus required to be taken is to the effect, among other things, that the person will discharge the duties of his office with fidelity. (R. S., Secs. 1056, 1136, 1223; Constitution, Art. 6, Sec. 8.)

It is a familiar principle of construction that effect must be given to every part of a statute, if possible. It is not to be presumed that the Legislature indulged in a meaningless formula in requiring Mr. Lampman to take the oath of a County Commissioner, and Mr. Taylor that of a County Clerk. When Mr. Taylor made oath that he would perform the duties of County Clerk with impartiality, it is not to be presumed that this was a jejune and farcical ceremony. If the argument should be advanced that this meant simply that he would perform the duties required by the chapter providing for his appointment, a sufficient answer is found in the law itself, which provides a special oath in regard to the faithful performance of the duties required by that statute. This oath sufficiently covered such duties as might not be embraced in the oath of County Clerk. In prescribing both oaths, the Legislature must be presumed to have intended something. That intention must have been that the officer swearing that he would perform the duties of County Clerk, should in fact so perform them.

Big Horn County after its creation and until the appointment of provisional officers was a county for all purposes except judicial, revenue and election, and legislative representation. But now the county was conducting its own election, and was electing its own representatives in the Legislature. Hence at the time these officers rendered their services the county may be said to have existed for all except judicial and revenue purposes. There are other functions and duties of County Commissioners and County Clerks, aside from those connected with the judiciary and revenue. Exactly what these duties are in an unorganized county, it is aside from the question to inquire, as it is admitted that Messrs. Lampman and Taylor performed them all. That they were not inconsiderable may readily be inferred when one stops to think of the entire lack of county machinery and precedent, and that they were required to set in motion the whole affair. (See Keating v. Marble, 18 P. 189 (Kan.).

It is here contended that during the period covered by their bills Taylor was County Clerk, and Lampman was actually County Commissioner of the County of Big Horn. But whether or not this is strictly the case, and whether or not the exact legal titles above mentioned were in strictness applicable to these officers, it is nevertheless true that they were discharging the duties of those offices, and were the legal and rightful incumbents of the same, and hence were entitled to the salary belonging thereto. (State ex rel. v. La Grave, 35 L. R. A., 233; People v. Hopkins, 55 N.Y. 74; Chadwick v. Erhart, 11 Ore., 389.)

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