Washington County v. Davis

• Decision Date: 11 February 1924
• Docket Number: 151
• Citation: 258 S.W. 324,162 Ark. 335
• Parties: WASHINGTON COUNTY v. DAVIS
• Court: Arkansas Supreme Court

258 S.W. 324

162 Ark. 335

WASHINGTON COUNTY v. DAVIS

No. 151

Supreme Court of Arkansas

February 11, 1924

Appeal from Washington Circuit Court; W. A. Dickson, Judge affirmed.

Judgment affirmed.

Nance & Seamster, for appellant.

To construe the act to be mandatory, and hold that the word "may" means "shall" constitutes an invasion of the jurisdiction of the county court and is in conflict with § 28, art. 7, of the Constitution.114 Ark 278; 25 L. R. A. 770.

J V. Walker, for appellee.

The word "may" means "shall" when used in an act whenever third persons or the public have an interest in having something done or have a claim de jure that the power shall be exercised. 102 Tex. 304; 5 Ark. 82. 1 L. R. A. (N. S.) 656; 76 Am. Dec. 736. See also 68 Tex. 468; 95 Tex. 268; 94 Tex. 62; 9 Md. 174, 66 Am. Dec. 326; 4 Wall. 435, 18 L. ed. 419; 28 Ala. 28; 17 Ala. 527; 95 N.C. 68; 105 Mo.App. 98; 95 S.W. 98; 7 Fla. 13; 24 Sou. 589; 2 Sou. 400; 154 Mo.App. 540; 55 Wash. 1; 136 Iowa 573; 234 Ill. 583. Arkansas decisions are in accord with the above. See 77 Ark. 412; 85 Ark. 232. Where an office is created by the Constitution, but the compensation is left to the discretion of the Legislature, it may be increased or diminished so as to affect the incumbent. 40 Ark. 100.

OPINION

HART, J.

J. L. Davis filed a claim in the county court against Washington County for $ 1.200, which he claims to be due him as extra compensation for official services rendered as circuit clerk of Washington County. His claim for compensation is based upon § 2 of act 83 of the Acts of 1921, which is as follows:

"Section 2. That the county court of Washington County may refund to J. L. Davis, late clerk of the circuit court of Washington County and recorder, twelve hundred dollars, one-half of the amount received by him and paid into the county treasury for recording 1,634 oil and gas leases during his term of office, less the county tax." Special Acts of Arkansas 1921, p. 111.

This act was amendatory of act 259 of the Acts of 1919, which fixed the salary of the circuit clerk at the sum of $ 3,420 per annum, together with the fees and allowances made to him as commissioner in chancery. Special Acts of 1919, p. 399.

The county court refused to make the allowance to J. L. Davis, as provided by the section of the act quoted above, and Davis duly prosecuted an appeal to the circuit court. The circuit court found that Washington County was indebted to J. L. Davis in the sum of $ 1,200, under the act of the Legislature above referred to, and judgment was rendered accordingly.

To reverse that judgment, Washington County has duly prosecuted an appeal to this court.

Although the office of circuit clerk is created by the Constitution, the Legislature has full power to fix the amount of compensation, of course observing all constitutional limitations, and it makes no difference whether the compensation is by fees or salary. Humphry v. Sadler, 40 Ark. 100; Powell v. Durden. 61 Ark. 21, 31 S.W. 740, and Bugg v. Sebastian County, 64 Ark. 515.

It does not appear from the record that the extra allowance to the circuit clerk, under the act in question, together with the salary already allowed him, made his net profits more than $ 5.000 per annum, and was therefore violative of § 23, art. 19, of the Constitution, as construed in Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380, and Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024.

In this connection it may be also stated that the bill under consideration was passed by two-thirds of the members elected to each branch of the General Assembly. Therefore we need not decide whether the act under consideration falls within the provisions of art. 5, § 27, of the Constitution, which provides that no extra compensation shall be made to any officer after the services shall have been rendered, unless such compensation be allowed by a bill passed by two-thirds of the members elected to each branch of the General Assembly. There is no constitutional limitation against the passage of the act under consideration, and we hold it to be a valid act.

We do not think that the case of Board of Education of Marion Township v. State (Ohio), 51 Ohio St. 531, 25 L.R.A. 770, has any application to the facts in the case at bar. There the treasurer of the school funds of Marion Township, Ohio, lost a school warrant, which he paid to the person entitled to it, and was charged with the amount thereof in his settlement with the county auditor. Subsequently he found the warrant, and asked that the amount thereof be refunded to him. The board of education refused to do so, on the grounds that it had no power to go behind its previous settlements. Whereupon he secured the Legislature to pass an act allowing him the amount of said lost warrant and directing the board of education to levy taxes for the payment thereof. The court held that, because there was a dispute about the facts out of which the claim grew, between the township treasurer and the board of education, the contention fell within the province of the court under the distribution of governmental powers prescribed by the Constitution.

Here there was no contention between the parties as to the facts. Davis had made no claim in the county court or elsewhere that he was due extra compensation. The Legislature simply allowed J. L. Davis, as clerk of f he circuit court, extra compensation for services which he had already rendered, and this it had the right to do, for the reasons stated above.

It is next contended that the allowance of the extra compensation, by the terms of the act, was in the discretion of the county court. In making this contention, reliance is placed by the county upon the language of § 2 of the act quoted above, which provides that the county court may refund to J. L. Davis $ 1,200. We think that the act is mandatory, notwithstanding the use of the word "may" instead of "shall."

In Pirani v. Barden, 5 Ark. 81 Spratley v. La. & Ark. Ry. Co., 77 Ark. 412, 95 S.W. 776, and C. R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232, this court has recognized that the word "may" is often interpreted to mean "shall." The general rule of construction is that the word "may" is construed to mean "shall" whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to which it refers. Wheeler v. Chicago (Ill.), 24 Ill. 105, 76 Am. Dec. 736; Smalley v....