Broaddus v. Board of County Commissioners

Opinion of the court by IRWIN, J.: The only question involved in this ease is as to the correctness of the action of the board of county commissioners in fixing the salary of the register of deeds according to the population of Pawnee county and excluding from the count of such population, the population of the Osage Indian reservation, which had been attached to Pawnee county for judicial purposes, and by reason of such attaching, the labor performed, the services rendered, and the fees earned by the register of deeds were materially increased. Plaintiff in error contends that -by a reasonable interpretation of the statute, that the fair intention of the legislature was that this unorganized territory, known as the Osage Indian reservation, should be taken into account in determining the population of Pawnee county for the purpose of fixing the salary of the register of deeds. The provisions of the statute *476 in regard to the subject are found in Wilson’s Revised Statutes for 1903, chapter 36, section 17, running section 3008, page 741, which reads as follows: “The register of deeds shall receive the following fees: For recording deeds, mortgages, or other instruments of writing, for the first folio, twenty-five cents; each additional folio, ten cents; certificate of filing and recording anv instrument, ten cents: each entry on index, including description of property, five cents; for copy of each deed or other instrument recorded, per folio ten cents; for recording town plat of one hundred lots or less, three dollars; for each additional one hundred lots, one dollar; certificate and seal, twenty-five cents; filing and indexing chattel mortgage, including certificate and seal, twenty-five cents; filing each paper required to be filed, five cents: Provided, that the register of deeds be allowed to retain, out of these fees required by law as his annual salary, the following amounts and no more: In counties of ten thousand inhabitants or less, eight hundred dollars, in counties of not less than ten thousand'inhabitants and not more than fifteen thousand, inhabitants, twelve hundred dollars; in counties containing not less than fifteen thousand inhabitants nor more than eighteen thousand inhabitants, sixteen hundred dollars: and in counties of more than eighteen thous- and inhabitants, two thousand dollars. In no case shall the county be liable for the payment of the salary of the register of deeds or the compensation of any of his clerks or deputies: And provided further, that the register of deeds shall be allowed to retain fifty per cent, of all fees collected by him in excess of the above salary. The register of deeds shall employ the necessary clerical assistance for the transaction of the business of his office, but in no case shall the count}'- be liable for the payment of the salary or other compensation of any clerk, deputy or other assistant of the register of deeds.” “For a proper understanding of the true intent and meaning of this section, it will be necessary to refer to a sub *477 sequent section in the same chapter, being section 36, running section 3027, page 745, which is as follows: “For the purpose of fixing the amount to be paid to the county clerk, county treasurer, probate judge, sheriff and register of deeds, and county attorney the board of county commissioners shall adopt as a basis for that purpose, the number of inhabitants of their respective counties, as shown by the returns of the assessors made in the year 1896, and each two years thereafter. Provided, that wrhen any unorganized territory is attached to any county for judicial purposes, the population of such unorganized territory shall be added to the population of said county in fixing the amount of the salary of the sheriff, county treasurer, county clerk and county attorney of said county.” It will be noticed that in this latter section in the fixing of the salaries of the various county officers, a distinction is made by the legislature between the manner of fixing the salary for certain county officers from that of other county officers, as in the first part of the section a provision is made for certain county officers, namely, county clerk, county treasurer, probate judge, sheriff, register of deeds and county attorney, upon a basis of the number of inhabitants of the respective counties as shown by the returns of the assessor made in the year 1896, and each two years thereafter. Now if this was all there was of that section, it would seem there could be no question but that the action of the board of county commissioners in this case was correct, and in strict accordance with the statute. But the legislature, in their wisdom, have seen fit to go further and make other provision, and give other and different relief to certain county officers, and adopt a different basis for fixing their salary. That is, as to the salary of the sheriff, county treasurer, county clerk, and county attorney, in estimating the salary of these officers to the *478 population of tlie county, as shown by the return of the assessor, there should be added the population of the unorganized district attached to the county for judicial purposes. Now it seems to us, that by the naming in this act of certain specific officers of the county and including them within the benefits of the act, a reasonable interpretation of the act would be to exclude all other county officers not therein named, and that the doctrine of expressio unms est exclusio alterius, that is, the expression of one thing implies the exclusion of another, would apply in this case. Now we think that this was not an inadvertence is manifest from the language of the act itself, because this section refers to all the county officers, specifically naming them, including the register of deeds. If the legislature had intended to include within the benefits and provisions of the added provision to the act the register of deeds, wmuld it not be reasonable to presume that they would have named him therein? From a reading of this section, it must be apparent that their action in excluding certain officers from the benefits of the subsequent provisions of the statute was done intentionally. Then the only remaining question is, did they have the power so to do? It is contended by the plaintiff in error that where duties are imposed upon an officer by the legislature, after his salary is fixed by law, and such duties are foreign to the office, that he is entitled to a compensation for the work imposed upon him ex officio. Now there is nothing in this record which tends to show that the attaching of the Osage Indian reservation to Pawnee county for judicial purposes was done after the fixing of the salary of the register of deeds by the board of county commissioners, nor do we think that this is a fact. The only *479 plausible contention that could be maintained, is .that plaintiff in error was the register of deeds for Pawnee county only, and that the adding of the Osage Indian reservation for judicial purposes increased his labors, and also increased the fees earned by the office, and as a matter of justice and equity he ought to be entitled to added compensation therefor, but in such cases we are governed by fixed statutes. The board of county commissioners have no right to increase the burdens of the office. Now we take the rule to be that the legislature have the right to increase the burdens of the office, to add to the duties and labor of the office by requiring of the officer the performance of additional services such as are germane to the office, and such as come within the purview of the duties of the office^ and that they are not legally nor constitutionally obliged to add to the compensation of the office, but that the person taking the office is obliged to perform such services without adidtional compensation, unless such compensation is provided by the statute creating and lequiring such additional services. Such seems to be the holding of the United States supreme court in the case of the United States v. King, reported in the 147 U. S. at page 676, where that court say: “When a statute increases the duties of an officer by the addition of other duties germane to the office, he must perform them without extra compensation.” Now in the case at bar, the additional duties required of the plaintiff in error by virtue of the adding of the unorganized territory known as the Osage Indian reservation, to Pawnee county for judicial purposes, were of the same kind and character as those required of him when Pawnee county was standing alone. There is no difference in the kind or *480 character of the services. It is only an increase in the amount and it seems to us that under the plain wording of the statute, that it was not the intention of the legislature that his salary should be determined upon the basis of the adding together of the population of the county as shown by the return of the assessor, and the population of the Osage Indian reservation, but that he assumed the burden of the office, and accepted the salary as fixed by the commissioners, based upon the population of Pawnee county alone. This seenis to be the plain, unequivocal meaning of the statute, and it would be useless for us to indulge in speculation as to the moral aspect of the case, or the equities of it, because the fees and salary of the office is determined by fixed statute, which is binding upon the commissioners, and binding' upon the courts. 'Finding no error in the record, the decision of the district court is affirmed, at the costs of the plaintiff in error. Hainer, J"., who presided in the court below, not sitting; all the other Justices concurring.