Cawley v. Pershing County

*413 OPINION By the Court, Sanders, C. J.: This is the second case involving the compensation of one Michael Cawley, as constable for Lake Township, in Pershing County, to reach this court. Prior to the creation of Pershing County out of a portion of Humboldt County, Lake Township was in Humboldt County. The compensation of constable for Lake Township has been the source of protracted litigation in both counties. See Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401; Moore v. Humboldt County, 48 Nev. 397, 232 P. 1078; Cawley v. Pershing County, 50 Nev. 237, 255 P. 1073. While Lake Township was still a part of Humboldt County, the legislature approved a special act fixing the compensation of the officers in certain townships, including Lake, at $150 per month in lieu of all criminal fees, and allowed such officers to retain in addition all civil.fees. Statutes 1909, p. 144, c. 127. In 1921, the *414 legislature by a special act (Stats. 1921, c. 247) made an attempt to reduce the compensation of such officers from $150 per month to $5 per year. This attempt wás thwarted by our decision in Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401, supra. In Moore v. Humboldt County, 48 Nev. 397, 232 P. 1078, supra, we held that the legislative power to fix the compensation of township officers could not be delegated to boards of county commissioners as was attempted to be done by the act of 1919. Statutes of 1919, p. 395, c. 220. These decisions may be said to be the source of the litigation involving the compensation of constable for Lake Township when it became a part of Pershing County. In the case of Cawley v. Pershing County, supra, we reversed our holding in Moore v. Humboldt County, 48 Nev. 397, 232 P. 1078, supra, and held that the statute of 1919 was not an unconstitutional delegation of legislative power under the constitution, article 4, sec. 32, as amended, and that the act of 1919 was not in conflict with the constitution, art. 4, sec. 20, restricting legislative powers. Having upheld the act of 1919 in the first case of Cawley against Pershing County, the legal question now presented is whether a judgment granting to Cawley as constable for Lake Township a salary of $150 per month from January to August, inclusive, 1923, can be sustained. The question arises out of a resolution approved by the board of county commissioners of Pershing County in July, 1922, fixing the compensation of constable for Lake Township at $1 per year for the ensuing term of four years. The proper solution of the question involves the interpretation and the application of the act of 1919 uninfluenced by the act of 1909 relative to the compensation of certain township officers in Humboldt County. Section 1 of the act of 1919 reads : “The board of county commissioners of each county, during the month of July of any year in which an election of township officers is held, shall fix the compensation of such officers for the ensuing term, and which *415 shall be a salary or the fees as now allowed to such officers by existing enactments or as shall be fixed by subsequent enactments, and in case of failure of said boards to fix such compensation as above provided, then the compensation of such officers shall be the same as received by their immediate predecessors in office.” Section 2 of the act reads: “All acts or parts of acts, either general or special, in conflict herewith, are hereby repealed.” Michael Cawley was elected constable for Lake Township at the general election held in November, 1920, and was elected to succeed himself as constable at the general election held in November; 1922. Apparently during both terms of his office Cawley was advised that he was entitled to a salary of $150 per month and all civil fees as provided in the act of 1909, and to recover the sum of $150 per month he brought two actions against Pershing County. Each case was submitted to the court below for decision upon the pleadings with the result that Cawley was awarded judgment for the full sum demanded in each complaint, which in the present case was for the sum of $1,050, less $1. In the present case it was stipulated that the law as established in the case of Cawley v. Pershing County, supra, then undecided should control this case. Upon the authority of Cawley v. Pershing County, supra, we are of the opinion that the judgment in favor of Cawley for the sum of $1,049 must be reduced to the sum of $699, for the reason that the resolution of the board of county commissioners of July, 1922, fixing the compensation of the office of constable for Lake Township, was not in compliance with the provisions of the act of 1919 and is void. A salary of $1 per year is tantamount to no salary at all (Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401, supra) and, the board of county commissioners having failed to fix any compensation for the office of constable, either a salary or fees, as provided in the act of 1919, under the terms of said act Cawley is entitled to the same compensation as was received by his immediate predecessor in office, *416 Who, in this instance, was Cawley himself. That compensation was $100 per month. Consequently, nothing remains for us to do but to modify the judgment appealed from by reducing it to $699. Such is the order. [Pending on petition for rehearing.]