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STATE OF NEW MEXICO EX REL. ERNEST GILBERT et al.

V. BOARD OF COUNTY COMMISSIONERS of Sierra County, Appt.

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Officer method of creation effect.

1. The constitutional inhibition in question applies to all officers who hold public offices, regardless of whether such offices were created by the Constitution or by the legislature.

[See note on this question beginning on page 1316.] - change of compensation.

statute providing for classification. 2. Section 27 of article 4 of the Con- 4. Section 2 of chapter 49, Laws of stitution prohibits increasing or di- 1923, which provides that within thirminishing the compensation of an of- ty days after such act takes effect, ficer during his term of office.

the state auditor shall classify the [See 22 R. C. L. 534; 4 R. C. L. Supp.

several counties of the state, using 1470. See also note in 21 A.L.R. 256.]

therefor the assessed valuation of

such counties as finally fixed for the appointive officer.

year 1922, and that such classification 3. This prohibition applies to officers shall determine the salaries of the sevwho have a definite and fixed tenure

eral county officers during the years of office, and does not embrace or in- 1923 and 1924, is void as to such ofclude those who hold their offices at

ficers then serving where it results in the pleasure of and subject to removal

either increasing or diminishing their by the appointing power.

compensation during their term of

office. Headnotes by BRATTON, J.

APPEAL by defendant from a judgment of the District Court for Sierra County (Owen, J.) in favor of plaintiffs in a mandamus proceeding to compel defendant to pay to relators their respective salaries upon the basis of a fourth-class county instead of one in the fifth class. Affirmed.

The facts are stated in the opinion of the court.

Messrs. M. J. Helmick, Attorney Maroney, 191 Mo. 531, 90 S. W. 141; General, John W. Armstrong, Assist- People ex rel. Rooney v. Warner, 104 ant Attorney General, and J. 0. Seth N. Y. Supp. 279; State v. Kelly, 103 for appellant.

Mo. App. 711, 77 S. W. 996; Danforth Mr. Edward D. Tittmann for appel- v. Egan, 23 S. D. 43, 139 Am. St. Rep. lees.

1030, 119 N. W. 1021, 20 Ann. Cas. Messrs. Hall & McGhee, amici curiæ: 418; Richie v. Philadelphia, 225 Pa.

Section 2 of chapter 49 of the Laws 511, 26 L.R.A.(N.S.) 289, 74 Atl. 430; of 1923 is unconstitutional and void. Re Appointment of Revisor, 141 Wis.

Guldin v. Schuylkill County, 149 Pa. 592, 124 N. W. 670, 18 Ann. Cas. 1176; 210, 24 Atl. 171; Greer County v. Hen- Malone v. Williams, 118 Tenn. 390, 121 ry, 33 Okla. 210, 126 Pac. 761; State Am. St. Rep. 1002, 103 S. W. 798; Calex rel. Davis v. Clausen, 47 Wash. 372, laghan v. McGown, Tex. Civ. App. 91 Pac. 1089; State ex rel. Seattle v. 90 S. W. 319; Com. v. Bush, 131 Ky. Wardall, 107 Wash. 606, 183 Pac. 67; 384, 115 S. W. 249; United States v. People ex rel. Ward v. Scheu, 60 App. Maurice, 2 Brock. 96, Fed. Cas. No. Div. 592, 69 N. Y. Supp. 597; Foster v. 15,747; Opinion of Justices, 3 Me. 481; Jones. 79 Va. 642, 52 Am. Rep. 637; Elaison v. Coleman, 86 N. C. 235; Rush v. Denhardt, 138 Ky. 238, 127 S. United States v. Alexander, 46 Fed. W. 785, Ann. Cas. 1912A, 1199; People 728; McCahon v. Leavenworth Counv. Rathbone, 11 Misc. 98, 32 N. Y. ty, 8 Kan. 437; Mitchell v. Nelson, 49 Supp. 108; State ex rel. Mosconi v. Ala. 88; Braithwaite v. Cameron, 3

V.

(- N. M. --, 222 Pac. 654.) Okla. 630, 38 Pac. 1084; Hamlin v. Perhaps an historical review of Kassafer, 15 Or. 456, 3 Am. St. Rep. the constitutional and statutory pro176, 15 Pac. 778; State v. Griswold, 73

visions governing this question will Conn. 95, 46 Atl. 829; State ex rel.

aid in better understanding our conWalker v. Bus, 135 Mo. 325, 33 L.R.A.

clusion. Section 1 of article 10 of 616, 36 S. W. 636; Atty. Gen. ex rel. Adams v. McCaughey, 21 R. I. 341, 43

the Constitution provides that the Atl. 646; State ex rel. Scott v. Trous

legislature, at its first session after dale, 16 Nev. 357; McCornick v.

statehood, shall classify the counties Thatcher (McCornick Pratt) 8 and fix the salaries of all county ofUtah, 294, 17 L.R.A. 243, 30 Pac. 1091; ficers, and that the salaries so fixed Foltz v. Kerlin, 105 Ind. 221, 55 Am. shall apply to all those elected at Rep. 197, 4 N. E. 439, 5 N. E. 672;

the first election held under the ConState ex rel. Gulden v. Johnson, 87

stitution. Such provision is in this Minn. 221, 91 N. W. 604, 840; Worcester County v. Goldsborough, 90 Md.

language: The legislature shall at 193, 44 Atl. 1055; Shurbun v. Hooper,

its first session classify the counties 40 Mich. 503; Walker v. Cincinnati, 21

and fix salaries for all county ofOhio St. 14, 8 Am. Rep. 24; Lewis v. ficers, which shall also apply to State, 21 Ohio C. C. 410, 11 Ohio C. D. those elected at the first election 647; Collingsworth County v. Myers, under this Constitution. And no Tex. Civ. App. 35 S. W. 414;

county officer shall receive to his State ex rel. Ward v. Churchman, 3 Penn. (Del.) 361, 51 Atl. 49; 29 Cyc.

own use any fees or emoluments other than

the annual salary 1427-1429; 22 R. C. L. 532, 533; Jefferson County v. Waters, 114 Ky. 48, 70

provided by law, and all fees S. W. 40; Apple v. Crawford County,

earned by any officer shall be by him 105 Pa. 300, 51 Am. Rep. 205.

collected and paid into the treasury

of the county.” Bratton, J., delivered the opinion

Pursuant to such constitutional of the court:

provision, the legislature enacted The relators are respectively chapter 12, Laws 1915, which classicounty clerk, assessor, and treasurer

fied the several counties by dividof Sierra county. They were elect

ing them into five classes, numbered ed to their respective offices at the from 1 to 5, inclusive, such division general election held throughout the depending upon the full assessed state in November, 1922, for a term

valuation of such counties for the of two years, beginning January 1,

year 1914; those of the highest val1923. At the time they were uation being in the first class and elected, as well as at the time they those of the lowest being in the fifth qualified, Sierra county was in the class. By § 2 of the act, the salaries fourth class. Thereafter, the state

of the several county officers in the auditor reclassified the several coun- several classes were fixed upon a ties of the state, and Sierra county scale, the highest being those of the was placed in the fifth class, which first class and diminishing as the resulted in reducing the salaries of classification of the counties is the county officers of that county. lowered, with the result that officers Following such reclassification, this in counties of the fourth class resuit was instituted in mandamus to ceive larger salaries than those in compel the respondent, the board of counties of the fifth class. By $ 19 county commissioners of said coun- of the act, it is provided that within ty, to pay to the relators their re- thirty days after January 1, 1917, spective salaries upon the basis of a and within thirty days after the 1st fourth-class county, instead of one day of January of each fourth year in the fifth class. The authority of thereafter, the state auditor shall the state auditor to so classify the classify the counties, using therefor county and thereby reduce the com- the assessed valuation as finally pensation due the relators during fixed for the preceding year, and their term of office is the sole ques- that such classification, when SO tion involved in the case.

fixed and determined, shall govern the salaries of the county officers of this act, it is further provided for four years thereafter. This sec- that within thirty days after it betion of the statute so provides in came effective, the auditor shall this language: “From and after classify the counties for the years the 1st day of January, 1917, the 1923 and 1924, using therefor the classification of counties shall be assessed valuation of said counties fixed and governed by the assessed for the year 1922, and that such valuation as finally fixed for the classification shall determine the preceding calendar

year.

Pro- salaries of the several county offivided : Within thirty days after cers for the years 1923 and 1924. said 1st day of January, 1917, and It was under the terms of this secwithin thirty days from the 1st day tion that the state auditor classified of January of each fourth year the counties during the year 1923, thereafter, such classification shall and reduced Sierra county from the be determined by the state auditor fourth to the fifth class. This classifrom the assessed valuation of each fication was fully pleaded by the recounty as finally fixed for the pre- spondents in defense to the applicaceding year, and the state auditor tion of the relators for the writ of upon making such determination mandamus. The trial court susshall notify the board of county tained a demurrer to the facts so commissioners of each county of the pleaded and held that such part of class within which each of the coun- the act in question is void, because ties of this state falls according to it results in diminishing or reducing such classification, and the classifi- the compensation of the relators cation as so fixed and determined during their term of

Officer change by the state auditor shall govern the office, in violation of

of compensation. salaries of county officers for four $ 27 of article 4 years thereafter."

of the Constitution, which expressly Following the terms of this act, prohibits the compensation of any the state auditor classified the coun- officer being increased or diminished ties during January, 1921, and during his term of office. This proplaced Sierra county in the fourth vision is as follows: "No law shall class. This was the status at the be enacted giving any extra compentime the relators were elected and sation to any public officer, servant, qualified to their respective offices. agent or contractor after services Thereafter chapter 49, Laws of are rendered or contract made; nor 1923, was enacted which was ap- shall the compensation of any officer proved on March 7, 1923, and be increased or diminished during carried the emergency clause and his term of office, except as otherconsequently became effective on wise provided in this Constitution." that date. This act provides in We are impressed with the soundthe first section thereof that with- ness of this contention. The constiin thirty days after January 1, tutional provision in question is 1925, and within thirty days after plain and emphatic; the words used the 1st day of January of each sec- are apt, direct, and construe themond year thereafter, the state audi- selves. It positively forbids intor shall classify the several coun- creasing or diminishing the compenties, based

upon

the assessed sation of any officer during his term valuation, as finally fixed for the of office. Prior to the adoption of preceding year, and that the classifi- the Constitution, county officers had cation, when so fixed and determined, been compensated for their services shall govern the salaries of the coun- upon a fee basis, and it was evidentty officers for two years thereafter, ly intended by the two constitutional thus changing the period of classi- provisions hereinbefore quoted (§ fying or reclassifying the counties 1, art. 10, and § 27, art. 4) to disto each two years, instead of four pense with such method and to subas it had previously been. By § 2 stitute in lieu thereof a salary meth

.

(-- N. 11. —, 222 Pac. 654.) od, with the provision that such Henry, 33 Okla. 210, 126 Pac. 761; compensation should be neither in- State ex rel. Matlock v. Oklahoma creased nor diminished during the City, 38 Okla. 349, 134 Pac. 58; term of any such officer. And the Stone v. State, 18 Ala. App. 228, 89 considerations which doubtless en- So. 824; Quernheim v. Asselmeier, tered into and prompted the inclu- 296 Ill. 494, 129 N. E. 828 ; Hibbard sion of such a provision of the Con- v. Suffolk County, 163 Mass. 34, 39 stitution are obvious. It was de- N. E. 285. signed to protect the individual of

In many cases the constitutional ficer against legislative oppression inhibition has been applied and enwhich might flow from party rancor, forced with respect to many differpersonal spleen, enmity, or grudge. ent kinds and classes of officers, These could well harass and cripple without regard to whether the offices the officer by reducing his compen- so held were created by constitusation during his service; while, on tional or statutory provision. In the other hand, party feeling, blood, such cases no discussion of the disor business relations might be com- tinction between the two kinds of bined in such pernicious activity officers is to be found. Jones v. in the form of strong and power- Louthan, 35 Okla. 407, 130 Pac. ful lobbying as to sway the members 139; Morgan County v. Fidelity & of the legislature and cause the be- D. Co. 200 Ala. 690, 77 So. 233; stowal of an unmerited increase. Fox v. Lantrip, 169 Ky. 759, 185 To obviate these conditions is the S. W. 136; Anderson v. Burton, 174 purpose of this wise constitutional Ky. 456, 192 S. W. 519; Neutzel v. provision.

Fiscal Ct. 183 Ky. 1, 208 S. W. 11; A provision identical, or quite Phillips v. Broach, 186 Ky. 138, 216 similar, to this, is to be found in the S. W. 80; Owen County Bd. of Edu. constitutions of most of the states. v. Kemper, 197 Ky. 407, 247 S. W. They seem to be quite common and 25; State ex rel. Truman v. Jost, 269 to have been frequently construed Mo. 248, 191 S. W. 38. by the courts. It has been many With these cases which deal with times held that such a provision the subject in general terms disdoes not apply to an office held dur- posed of, we approach a consideraing the pleasure of, and subject to tion of the narrow question which removal by, the appointing power, counsel have presented. It is sugsuch as employees, attachés, depu- gested by the appellants that some ties, court stenographers, and others courts hold such inhibition applies similarly situated. This is due to to the officers created or expressly the fact that such persons have no recognized by the Constitution, and “term of office" within the intend- does not relate to or embrace those ment of such constitutional provi- which are created by the legislature. sion. To come within its terms an It is not contended that such should

officer must have a be the construction given the Con-appointive

fixed and definite stitution, but that distinction is sug

tenure of office. gested, and the decisions so holding Bowers v. Albuquerque, 27 N. M. have been brought forward and pre291, 200 Pac. 421; State ex rel. sented to us. This exact question Rumbold v. Gordon, 238 Mo. 168, has been decided in a very few in142 S. W. 315, Ann. Cas. 1913A, stances, and the decisions dealing 312; Com. v. Ewald Iron Co. (Com. with it are very few. The foundav. American Tobacco Co.) 153 Ky. tion case upon which the later cases 116, 154 S. W. 931; Harrold v. so holding are based is Milwaukee Barnum, 8 Cal. App. 21, 96 Pac. County v. Hackett, 21 Wis. 620. In 104; Bayley v. Garrison, — Cal. - that case it was held that the word 214 Pac. 871; Muskogee County v. "compensation,” as used in the ConHart, 29 Okla. 693, 37 L.R.A. (N.S.) stitution of that state, referred to 388, 119 Pac. 132; Greer County v. and meant those officers who re

31 A.L.R.–83.

officer.

-,

ceived a fixed salary, payable from which, as we have previously demthe public treasury of the state, to onstrated, did not so hold, but raththe exclusion of that class of offi- er that such officers as were paid cers, such as sheriffs, constables, from the public treasury alone are clerks of courts, and others, who included. In the latter of these were compensated for their services cases, the supreme court of Nebrasupon a fee basis. This is as far as ka merely cites its former decision. the court went in that case. It The only other case coming to our never held, either expressly or im- knowledge, which has followed any pliedly, that the inhibition applied of the cases we have cited and disto constitutional officers only, and cussed, is State ex rel. Thurston we suggest that in this state many County v. Grimes, 7 Wash. 445, 35 officers whose offices are created by Pac. 361, wherein it was held that legislature are paid from the public an act of the legislature which treasury. This case was followed changed the fees to be paid to jusin the later cases from the supreme .tices of the peace and constables court of Wisconsin, in which sal- might be applied to the then incumaried officers were involved. In bents of such offices, with the result such later cases, it was held that that their compensation might be the constitutional provision applied changed during the term of office. to state officers proper, exclud- That court cites as its authority ing county and municipal officers. Milwaukee County v. Hackett, suRooney v. Milwaukee County, 40 pra. It did not, however, discuss Wis. 23: State ex rel. Martin v. any distinction between constituKalb, 50 Wis. 178, 6 N. W. 557; tional and statutory officers, but State ex rel. Sommer v. Erickson, sought to distinguish between those 120 Wis. 435, 98 N. W. 253. In who are remunerated upon a fee State ex rel. Smith v. Outagamie basis and those whose compensaCounty Bd. 175 Wis. 253, 185 N. W. tion is paid by a fixed salary. In 184, it was said that such constitu- none of the foregoing cases is any tional provision did not apply to the logical or satisfactory process of office of judge of the special mu- reasoning resorted to in order to nicipal court, since that was not support the conclusion. The founa constitutional office. In that case dation case simply concluded, withthe former decisions of that state out reason or authority, that such were cited as authority, none of officers only as are paid from the which attempted to decide that ex- public treasury are included within act question, and we think a care- the inhibition, and the cases which ful reading of the opinion discloses followed merely cite the earlier case that the court did not intend to and give no more satisfactory reamake such a distinction, but rather son or logic. On the other hand, intended to follow its former deci- it has been held in many cases desion, which applied the general inhi- cided by the supreme court of Pennbition to state officers proper, who sylvania that such an inhibition apreceive their compensation from the plies to officers holding offices crepublic treasury of the state, to the ated by the legislature, as well as exclusion of county and municipal those created by the Constitution, officers.

and that no distinction should be It has been twice held in Ne- made in applying the rule as bebraska that such a constitutional tween the two classes. Lancaster provision applies to constitutional County V. Fulton, 128 Pa. 48, 5 officers only. Douglas County V. L.R.A. 436, 18 Atl. 384; Richie v. Timme, 32 Neb. 272, 49 N. W. 266; Philadelphia, 225 Pa. 511, 26 L.R.A. State ex rel. Gordon v. Moores, 61 (N.S.) 289, 74 Atl. 430; Com. ex Neb. 9, 84 N. W. 399. The former rel. Wolfe v. Moffitt, 238 Pa. 255, of these cases cites as authority Ann. Cas. 1914C, 211, 86 Atl. 75; State ex rel. Martin v. Kalb, supra, Tucker's Appeal, 271 Pa. 462, 114

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