Woodward v. Board of Commissioners of Idaho County
| Decision Date | 20 November 1897 |
| Citation | 5 Idaho 524,51 P. 143 |
| Parties | WOODWARD v. BOARD OF COMMISSIONERS OF IDAHO COUNTY |
| Court | Idaho Supreme Court |
CLERK OF COURT-EMPLOYMENT OF DEPUTY-MUST SHOW NECESSITY.-Under the provisions of section 6, article 8, of the constitution, the board of county commissioners must authorize the clerk of court, ex-officio auditor and recorder to employ a deputy whenever it is shown that a necessity exists therefor, and the facts creating the necessity ought to be shown upon the record of the board.
SAME-CAUSED BY SICKNESS OR ABSENCE.-If the necessity for the appointment of a deputy is occasioned by the sickness or absence of the clerk on business, not connected with his office, the county is not liable for the compensation of the deputy.
CONSTITUTION-INTERPRETATION OF.-The intent of the framers of the constitution was to limit the costs of the office of clerk of the district court to the fees provided for by law, except when such fees did not amount to the minimum fixed by the constitution.
(Syllabus by the court.)
APPEAL from District Court, Idaho County.
Reversed and remanded, with instructions.
James Woodward and F. E. Fogg, for Appellant.
The constitution of the state, section 6 of article 18, provides what county officers may be elected or appointed; section 7 provides what compensation such officers may receive, and section 8 provides that such compensation shall be paid by fees or commissions, or both, except in the event of the fees and commissions falling below the minimum compensation provided by law. (Meller v. Board of Commrs., 4 Idaho 44, 35 P. 712; Eakin v. Nez Perces County, 4 Idaho 131, 36 P. 702; Hillard v. Shoshone County, 3 Idaho 103, 27 P. 678; Ada County v. Ryals, 4 Idaho 365, 39 P. 556; Hampton v. Commissioners of Logan County, 4 Idaho 646, 43 P. 324.) The commissioners of Idaho county never authorized the employment of a deputy by the clerk of the district court, nor were they requested to authorize such employment. The record in this case shows only an order of the commissioners fixing the salary of a deputy but no order authorizing the appointment or determining the necessity for such appointment. In the case of Hampton v Board of Commrs., supra, this court says: "We think that before the authority given to county commissioners by section 6, article 18 of the constitution can be exercised, the necessity which authorizes it must not only be apparent but the facts creating such necessity must be made a matter of record by the board." (Campbell v. Board of Commrs. ante, p. 53, 46 P. 1022.)
Clay McNamee, for Respondent, files no brief in the cause.
This is an appeal from an order of the board of commissioners of Idaho county allowing A. W. Talkington, clerk of the district court, $ 240, quarterly salary for a deputy clerk. The appeal was taken to the district court, and the action of the board was sustained. Thereupon an appeal was taken to this court.
It was contended that said allowance for a deputy clerk was illegal: 1. Because any allowance in excess of the fees earned by the office is unauthorized by the constitution or any law of the state: 2. Because the necessity for the employment of a deputy clerk had not theretofore been determined by said board.
Several errors are assigned. But, in our view of the case, it is only necessary for us to pass upon one of them, to wit: "The court erred in finding that the employment of a deputy was necessary." After a most careful consideration of the transcript, we find no evidence sustaining said finding, and the court's conclusion of law based thereon is erroneous.
A. W Talkington testified in his own behalf, and records were introduced showing the allowance of the clerk's bill for deputy clerk hire, $ 240. Also the report of said clerk to the board showing his fees and commissions for the year 1895, which aggregated $ 2,859.75. He also testified that he had received $ 240 per quarter for deputy clerk hire for the year 1895, which last-mentioned sum he paid over to his deputy. The district attorney propounded the following question to the witness: ...
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