State Ex Rel. Westerfield v. Tyrrell

By the Court, Bigelow, C. J.: Application by the relator, as state treasurer, for a writ of mandamus to compel the respondent, as treasurer of Ormsby county, to pay over to him the sum of $285 69, alleged to *425 be a part of the state’s revenue, unlawfully detained by respondent. As we understand it, the respondent claims the right to retain such moneys, under sections 136, 137 of the revenue act of 1891 (Stats. 1891, pp. 182, 183), as a part of the compensation due to Ormsby county from the state on account of the salaries of the assessor, auditor, and treasurer of that county. The question presented is whether the state is liable for any part of those salaries. It appears that the revenue act of 1865 provided for the state’s paying a portion of such salaries, but that, when that act was revised and re-enacted in 1891, the sections to that effect were left out. Under these circumstances, the old act being repealed, it was supposed, upon the argument, that the liability of the state depended upon section 9 of the act of 1887 (Stats. 1887, p. 126), regulating the compensation of the officers of Ormsby county; and the constitutionality of this act was attacked, on the ground that it was local and special legislation. This was the question principally argued; but it now appears that the state’s liability is equally established by section 21 of the salary act of 1885 (Stats. 1885, p. 85), the validity of which is in nowise attacked or questioned, except upon the ground that it has been repealed, by implication, by the revenue act of 1891. We, however, find no conflict between the two acts, and consequently are of the opinion that section 21 of the act of 1885 is still in force. We are also of the opinion that, when that section provides that the sum to be allowed by the state to the various counties shall be “the proportion of the state tax to the whole tax levied by the county, on the basis of the salaries allowed by the act,” it refers to the salary act of which that section is a part, and which had just fixed the salaries of county officers, instead of to the revenue act of 1865, which, so far as it fixed officers’ salaries, was then impliedly repealed. This being so, and it nowhere appearing in the pleadings, or otherwise, that the county is claiming or withholding more than is justly due her under that section, there is no necessity to determine the constitutionality of the law of 1887; as, whether valid or not, the same result would follow. If the county is retaining more, it must be made to appear in a legal manner before notice ca.n be taken of it. Writ denied.