Blaine County ex rel. Matthaei v. Pyrah

MORGAN, C. J. At the general election held in November, 1916, Walter Pyrah was elected e'ounty commissioner ,of Blaine county. At that time, and until the act of the legislature approved March 14, 1917, went into effect, that county was, for the purpose of fixing the compensation of its commissioners, classified as of the first class, and the annual salary was $700. That act (Sess. Laws 1917, chap. 85, p. 300) placed Blaine county in the fifth class and fixed the annual salary of commissioners thereof at $300. On October 8, 1917, Pyrah filed with the clerk of the board his claim for salary, for the third quarter of that year, in the sum of $175, and it was allowed. The prosecuting attorney appealed from the order of the board, and the district court entered judgment to the effect that it be modified to the extent that the claim be allowed in the sum of $75, that being the amount due the com [113] missioner for one quarter’s salary as provided by tbe act of 1917 above mentioned. This appeal is from the judgment. It appears that each of the three members of the board filed his claim for compensation at the rate of $700 per annum, and that like action has been taken with respect to the other claims as occurred in case of the one here under consideration. The record contains a stipulation, which is hereby approved, to the effect that the questions involved in the other eases may be determined by the adjudication of this one. The language in which the notice of appeal is couched invites serious question as to whether the board, in its official capacity, is attempting to prosecute this proceeding. However, since the judgment of the district court is favorable to the county and this appeal is antagonistic to its interests, and since Commissioner Pyrah, in his individual capacity, is the real party in interest, the appeal has been deemed to be, and will be treated as having been, taken by him upon his behalf and, pursuant to the stipulation above noted, upon behalf of the other members of the board. Appellant contends it is beyond the power of the legislature to change the salaries of county commissioners during their terms of office because of art. 3, sec. 19, of the constitution, which is as follows: “The legislature shall not pass local or special laws in any of the following enumerated eases, that is to say: .... Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected......” Proceeding upon the theory, but not deciding, that the act in question is a local or special law, it is manifest that art. 3, sec. 19, applies only to those irregular and uncertain modes of compensating public servants indicated by the words “fees, percentages or allowances,” and by terms of like meaning, and does not apply to the salaries of officers. (Brandon v. Askew, 172 Ala. 160, 54 So. 605; Mangam v. Brooklyn, 98 N. Y. 585, 50 Am. Rep. 705.) A salary is a fixed compensation “decreed by authority and for permanence,” is paid at stated intervals, and depends upon time, and not the amount, of services rendered. (Dane [114] v. Smith, 54 Ala. 47; Benedict v. United States, 176 U. S. 357, 20 Sup. Ct. 458, 44 L. ed. 503, see, also, Rose’s U. S. Notes.) “Allowance” is a variable quantity. (Benedict v. United States, supra.) The legislature may increase or diminish the salaries of officers during the terms for which they are elected, unless prohibited by the constitution. (Farwell v. Rockland, 62 Me. 296; Knappen v. Barry County Supervisors, 46 Mich. 22, 8 N. W. 579; Hennepin County Commrs. v. Jones, 18 Minn. 199; Douglas County v. Timme, 32 Neb. 272, 49 N. W. 266; Marden v. Portsmouth, 59 N. H. 18; Board of Commrs. v. Stedman, 141 N. C. 448, 54 S. E. 269; Haynes v. State, 3 Humph. (Tenn.) 480, 39 Am. Dec. 187; State v. Kalb, 50 Wis. 178, 6 N. W. 557.) Sess. Laws 1917, chap. 85, is not in conflict with the constitution, and the judgment of the district court is, therefore, affirmed. Costs awarded to respondent. Rice and Budge, JJ., concur.