Taylor v. Canyon County

• Decision Date: 07 February 1899
• Citation: 56 P. 168,6 Idaho 466
• Parties: TAYLOR v. CANYON COUNTY
• Court: Idaho Supreme Court

56 P. 168

6 Idaho 466

TAYLOR v. CANYON COUNTY

Supreme Court of Idaho

February 7, 1899

APPOINTMENT OF DEPUTY SHERIFF-NECESSITY OF.-Before the county commissioners can legally empower the sheriff to appoint a deputy under the provisions of section 6, article 18, Idaho constitution, they must find that the business of such sheriff's office requires the appointment of a deputy.

ALLEGATIONS OF COMPLAINT-DEMURRER.-The complaint of the sheriff in an action against the county to recover the salary of a deputy must allege that the county commissioners found that the business of said sheriff's office required the appointment of a deputy.

COUNTY COMMISSIONERS-NECESSITY OF APPOINTMENT WILL NOT BE INFERRED.-That fact will not be inferred from the facts that the county commissioners, in considering said matter examined certain evidence, and, after being advised in the matter, empowered the sheriff to appoint a deputy:

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Judgment affirmed, with costs in favor of the respondent.

N. M Ruick, for Appellant.

When the constitution declares the amount to be paid an officer it is an appropriation made by law. (State v. Weston, 4 Neb. 216; Thomas v. Owens, 4 Md. 189; People v. Hoge, 55 Cal. 612-618; State v. Holladay, 64 Me. 526.) The point in this case is not the necessity of a deputy, as that is contemplated by the constitution and admitted by the pleadings, which show that a necessity does and did exist, and that the sheriff and county commissioners have complied with the law in making such appointment; but the point in question here is, Is it the sheriff, or is it the county, that is liable for the payment of such deputy hire? We believe the county is the party liable, and that the constitution plainly established that fact. Section 6, article 18 of the constitution has taken from the sheriff the right to appoint deputies as was provided for under section 1815 of the Revised Statutes, and has vested the power to grant such right in the county commissioners. Section 1815 of the Revised Statutes made the sheriff liable for the compensation of his deputies, and he paid them such compensation as he was able to contract for, and this certainly was right, for no man should be compelled to pay a price for the labor he employs other than that which he agrees to pay. Section 6, article 18, makes it mandatory for the commissioners to fix the compensation which deputies shall receive when appointed, and we do not believe the constitution should be construed as fixing the price or empowering the county commissioners to fix the price. A sheriff shall pay his deputy, if, indeed, the constitution requires the sheriff to pay his deputy, out of his own pocket.

R. E. McFarland, Attorney General, and Rice & Griffiths, for Respondent.

The complaint is silent as to whether a necessity existed for the appointment of a deputy for the sheriff's office at the time the application was made. When an application for power to appoint a deputy is made by a sheriff to the board of commissioners of a county, the board must determine the necessity therefor. When determining the question of such necessity the board acts in a semi-judicial capacity. (Campbell v. Board of Commrs., 5 Idaho 53, 46 P. 1022; Woodward v. Board of Commrs., 5 Idaho 524, 51 P. 143.) The true intent of sections 6, 7 and 8 of article 18 of the constitution is indicated by the "Address to the People of Idaho" issued by a committee of the constitutional convention, and also by the following cases decided by this court, in addition to those already cited in this brief: Hillard v. Shoshone County, 3 Idaho 107, 27 P. 680; Guheen v. Curtis, 3 Idaho 443, 31 P. 805; Meller v. Board of Commrs., 4 Idaho 44, 35 P. 712; Ada County v. Ryals, 4 Idaho 365; 39 P. 556; Ada County v. Gess, 4 Idaho 611, 43 P. 71; Eakin v. Nez Perces County, 4 Idaho 131, 36 P. 702.

SULLIVAN, J. Quarles, J., concurs. HUSTON, C. J., Dissenting.

OPINION

SULLIVAN, J.

This action was brought by the sheriff of Canyon county to recover from said county the sum of seventy-five dollars, the salary fixed by the board of county commissioners of said county to be paid to a deputy sheriff per month, whom said board authorized said sheriff to appoint. It appears: That said sheriff made application to said board under the following provision of section 6 of article 18 of the state constitution, to wit: "The sheriff shall be empowered by the county commissioners to appoint such deputies and clerical assistant as the business of their office may require; said deputies and clerical assistant to receive such compensation as may be fixed by the county commissioners." That the board of county commissioners of said Canyon county, at its regular meeting in January, 1897, duly considered said application, at which time the books of the said sheriff's office were examined by said board, to ascertain the volume of the business transacted in said sheriff's office, and the said sheriff was then and there duly sworn and examined and cross-examined as a witness in support of his said application or petition. That said board, being fully advised in the premises, and upon due deliberation and consideration of the evidence introduced, made an order empowering the said sheriff to appoint a deputy, and in said order fixed said deputy's salary at seventy-five dollars per month. That a deputy was appointed under the authority so given, and served as deputy for one month. That, at the end of said month, the plaintiff, who is the appellant here, properly made out in writing his claim for said services for the sum of seventy-five dollars, and duly filed the same with the clerk of said board, and thereafter said board made an order disallowing said claim. That thereafter this suit was brought, in the probate court of said Canyon county, and judgment entered in favor of the plaintiff. An appeal was taken to the district court, and the cause came on for trial de novo. The defendant interposed a general demurrer...