Ward v. Holmes

• Citation: 26 Idaho 602,144 P. 1104
• Parties: C. T. WARD, Assessor and Tax Collector, Appellant, v. C. W. HOLMES, Auditor and Recorder of Adams County, Respondent
• Decision Date: 21 December 1914
• Court: United States State Supreme Court of Idaho

144 P. 1104

26 Idaho 602

C. T. WARD, Assessor and Tax Collector, Appellant, v. C. W. HOLMES, Auditor and Recorder of Adams County, Respondent

Supreme Court of Idaho

December 21, 1914

DUTY OF COUNTY COMMISSIONERS TO FIX SALARIES-CONSTITUTIONAL AMENDMENT-EFFECT OF ON TERMS AND COMPENSATIONS OF OFFICERS-AUTHORITY OF COUNTY COMMISSIONERS TO INCREASE OR DECREASE THE MINIMUM OR MAXIMUM SALARIES OF COUNTY OFFICERS.

1. Sec 2118, Rev. Codes, as amended by Sess. Laws. 1911, chap. 103 p. 345, provides that, "It shall be the duty of the county commissioners to fix the annual salaries of all county officers at their regular session in April next preceding any general election, except the annual salary of county attorney."

2. The adoption of sec. 6, art. 18 of the constitution, as amended (Ex. Sess. Laws 1912, p. 53), which provides, "That that sentence of sec. 6 of art. 18 of the constitution of the State of Idaho reading: 'The legislature by general and uniform laws shall provide for the election biennially in each of the several counties of the State, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator, a probate judge, a county superintendent of public instruction, a county assessor, who is ex-officio tax col- lector, a coroner and a surveyor,' be amended by striking out the words 'who is ex-officio tax collector' after the words 'a county assessor' and inserting the words 'and also ex-officio tax collector' after the words 'public administrator,'" in no way affects the terms of such officers, the time of their election, or their compensation.

3. County commissioners have no authority to increase or decrease the maximum or minimum compensation of county officers in anticipation of the adoption of a constitutional amendment.

4. A writ of mandate should not be denied where a board of county commissioners exceed their authority in fixing the annual salaries of county officers below the minimum provided by law.

APPEAL from the District Court of the Seventh Judicial District for the County of Adams. Hon. Ed. L. Bryan, Judge.

Application for a writ of mandate. Demurrer to defendant's answer overruled. Plaintiff appeals. Reversed.

Cause remanded, with instructions. Costs awarded to appellant.

L. L Burtenshaw, for Appellant.

A board of county commissioners is a tribunal created by statute with limited jurisdiction, and only quasi-judicial powers, and cannot act except in strict accordance with the statute. (Gorman v. Board of Commrs., 1 Idaho 553; Prothero v. Board of Commrs., 22 Idaho 598, 127 P. 175.)

Where a board of county commissioners is not acting within its jurisdiction, the action of the board is void, and may be attacked, directly or collaterally, at any time or place. (Dunbar v. Board of Commrs., 5 Idaho 407, 49 P. 409; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; Stookey v. Board of Commrs., 6 Idaho 542, 57 P. 312.)

B. J. Dillon, for Respondent.

It was the intention of the board of commissioners that if the assessor ceased to be ex-officio tax collector he should receive but $ 600 per year for his services. The salary of the county assessor alone had not been provided for by the legislature. "In the construction of statutes, when the intention of the legislature can be gathered from the statute, words may be modified, altered or supplied to give to the enactment the force and effect which the legislature intended." (Territory v. Clark, 2 Okla. 82, 35 P. 882.)

"The remedy to correct errors and irregularities in the action of a board of commissioners acting in a matter over which such board has jurisdiction is solely by appeal." (Dunbar v. Board of Commrs., 5 Idaho 407, 415, 49 P. 409.)

The writ of mandate should not issue in any case where there is a plain and adequate remedy in the ordinary course of law. (High on Extraordinary Remedies, sec. 341; Merrill on Mandamus, sec. 67; Graham v. Gillett, 156 Cal. 113, 103 P. 195; Taylor v. Marshal, 12 Cal.App. 549, 107 P. 1012; State v. Boerlin, 30 Nev. 473, 98 P. 402; Lindsey v. Carlton, 44 Colo. 42, 96 P. 997; State v. Edwards, 40 Mont. 287, 106 P. 695, 20 Ann. Cas. 239; Steward v. Territory, 4 Okla. 707, 46 P. 487.)

"To authorize a writ of mandamus against a public officer, relator must show a clear right to the performance of the act with the corresponding duty upon the officer to perform it." (State v. Morehouse, 38 Utah 234, 112 P. 169; Gray v. Mullins, 15 Cal.App. 118, 113 P. 694; Curtis v. Moody, 3 Idaho 123, 27 P. 732; Wright v. Kelley, 4 Idaho 624, 43 P. 565.)

BUDGE, J. Sullivan, C. J., and Truitt, J., concur.

OPINION

BUDGE, J.

C. T. Ward, assessor of Adams county, made application to the district court of said county for an alternative writ of mandate to compel C. W. Holmes, clerk of the district court and ex-officio auditor of said county, to issue to him a warrant for the sum of $ 91.66 in payment of one-twelfth of his annual salary, for the month of January, 1914, that being the amount claimed to be due under an order made by the board of county commissioners of Adams county fixing the salary of assessor and ex-officio tax collector, at their regular April, 1912, meeting.

An alternative writ was issued and on the return day thereof the said Holmes, in his official capacity, appeared and answered said writ, admitting that Ward was the duly appointed and acting assessor of Adams county, that at the regular April, 1912, meeting of the board of commissioners of Adams county said board made an order fixing the salary of the assessor and ex-officio tax collector at $ 1,100 per annum for "the period from January the 13th, 1913, to the second Monday in January, 1915," the order of said board being as follows:

"In the matter of fixing salaries for the period January 13, 1913, to the second Monday in January, 1915.

"The Board orders that the following be and is hereby adopted as the salary schedule for the above period. . . .

"Assessor and tax collector

$ 1100.00 per year

Assessor only

600.00 per year"

And after fixing in the above order the annual salaries of all county officers there was added thereto and made a part thereof the following:

"The salaries of the Assessor and Tax Collector . . . are made contingent upon the adoption of the constitutional amendment making the treasurer the tax collector."

This latter part of the order so made by the commissioners no doubt referred to the following proposed constitutional amendment which was submitted to the voters by the legislature at a special session thereof in 1912. Said amendment is as follows:

"That that sentence of Section 6 of Article 18 of the Constitution of the State of Idaho reading: 'The legislature by general and uniform laws shall provide for the election biennially in each of the several counties of the State, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator, a probate judge, a county superintendent of public instruction, a county assessor, who is ex-officio tax collector, a coroner and a surveyor,' be amended by striking out the words 'who is ex-officio tax collector' after the words 'a county assessor' and inserting the words 'and also ex-officio tax collector' after the words 'public administrator.'"

This amendment was adopted, thereby requiring the duties of tax collector to be performed by the county treasurer instead of the county assessor, except as later provided under secs. 149 to 169 inclusive, Sess. Laws 1913, p. 221, which in part are as follows:

"Sec 149. It is hereby made the duty of the Assessor, immediately upon assessing personal property whereon the tax is not a lien on...