Nickerson v. Winslow

Scott, Chiee Justice. The parties to this action were respectively plaintiffs and defendant in the court below, and will he so referred to here. The plaintiffs .were taxpayers and brought this action in the county for and on behalf of all the taxpayers of said county in the District Court of Fremont County to recover from the defendant for excess in salary as County and Prosecuting Attorney, charged, allowed and received by him as it is alleged contrary to the statute fixing his salary. It is admitted that the defendant was elected to that office • at the general election held November 5, 1912, and qualified as such officer on January 6, 1913, and that plaintiff claimed and -was drawing from the county as compensation for his services the sum of $125 per month, and had drawn such sum for the months of January, February, March and April prior to the time of the commencement of this action. It is alleged in the petition that the — 265 — county became and was a county of the second class from and after December 31, 1912, under and by virtue of the amount of the assessed valuation of said county and the provision of law of the State. It is alleged in the answer and denied in the reply that the last assessment roll of said county made and returned before defendant’s election shows the assessed valuation of said county to be the sum of $10,286,368.82, and it is claimed that upon such assessment the County of Fremont was under the law in force at the time of his election a county of the first class, and that for that reason defendant was entitled under the law to charge and receive as salary for his services the sum of $1500 per year, or $125 per month,- that being the salary allowed by law in counties of the first class under the classification provided by Section 1070, Comp. Stat., at the time of such election. The case was tried to the court without the intervention of a jury, and the court found and gave judgment for the defendant. The plaintiffs bring error. Upon the trial of the case the plaintiff proved the assessed valuation of the County for 1912 to be $10,284,-368.82. The various counties of the State were and are divided into classes for the purpose of fixing the compensation and fees to be paid to and charged by county and precinct officers. Sec. 1070, - Comp. Stat. 1910, reads as follows: “For the purpose of fixing the compensation to be paid to and the fees to be charged by county and precinct officers, the counties of the State are classified as follows: 1. Counties having an assessed valuation of more than five million dollars, shall be counties of the first class. 2. Counties having an assessed-valuation of more than two million and five hundred thousand dollars and not exceeding five million dollars, shall be counties of the second class. 3. Counties having an assessed valuation of more than one million and four hundred thousand dollars and not ex — 266 — ceeding two' million and five hundred thousand dollars, shall be counties of the third class. 4.' Counties having an assessed valuation of less than one' million and four hundred thousand dollars, shall be counties of the fourth class.” The section was amended and re-enacted by Chap. 38, S. L. 1911, being “An Act to amend and re-enact Section 1070 of Chapter 85, Wyoming Compiled Statutes of 1910, relating to classification of counties. Be it enacted by the Legislature of the State of Wyoming:- • “Section 1. That Section 1070 of Chapter 85, Wyoming Compiled Statutes of 1910, be, and the same is hereby amended and re-enacted so as to read as follows: ■ “Sec. 1070. Classification of Counties. For the purpose of fixing the compensation to be paid to and the fees to be charged by county and precinct officers, the counties of the State are classified as follows: “1. Counties having an assessed valuation of more than twelve million dollars, shall be counties of the first class. “2. Counties having an assessed valuation of more than six million dollars and not exceeding twelve million dollars shall be counties of the second class. “3. Counties having an assessed valuation of six million dollars, or less, shall be counties of the third class. “Section 2. This act shall take effect and be in force from and after December'31, 1912. “Approved February 17, 1911.” The last amendatory act did not become operative or supersede Section 1070, supra, until December 31, 1912. It may be conceded that while Section 1070 was operative and in force the assessed valuation of Fremont County at the ’time of such election and for some years prior thereto gave' it rank as a county of the first class. It is provided by Section. 1150 that “The assessed valuation of a county for purposes of classification for compensation of its officers shall' be ascertained' by a reference to the assessment last made before the election or appointment of the county — 267 — officer affected thereby.” Section 1206 provides as follows: “County and Prosecuting Attorneys shall receive the .following annual salaries: In counties of the first class, fifteen hundred .dollars; in counties of the second . class, twelve hundred dollars; in counties of the third class, eight hundred dollars; in counties of the fourth class, .six hundred dollars.” Section 1070 was in force before the amendment (Chap. 38, 1911) which became operative on and after December 31, 1912. Prior to that date it was inoperative, of no force and effect and not notice to any one. It is said in A. & E. Ency. Law, Vol. 26, p. 565: “A statute passed to take effect at a future day must be understood as speaking from the time it goes into operation and not from the time of passage. Thus, the words ‘heretofore’, ‘hereafter’ and the like, have reference to the time the statute becomes effective as a law, and not to the time of passage. Before that time no rights may be acquired under it, and no one is bound to regulate his conduct according to its terms; it is equivalent to a legislative declaration that the statute shall have no effect until the designated day.” It is also said in Cyc., Vol. 36, at page 1191, as follows: “Until the time arrives when it is to take effect and be in force, a statute which has been passed by both houses of the Legislature and approved by the Executive has no force whatever for any purpose, and all acts purported to have been doné under it prior to that time are void.” Mr. Bishop lays down the general rule in the following language: “A statute which is to become a law at a future date is a nullity in the meantime, and does not even operate as notice to persons to be affected by it, nor does a repealing clause in it put an end to the law to be .repealed.” (Bishop, Stat'. Crimes, Sec. 31, p. 29). The rule thus stated has been uniformly upheld by the courts and indeed no other rulé would be applicable and at the same time carry out the- intention of the Legislature where, as in the amendatory-act under consideration, that body expressly declared that the — 268 — act should not take effect until December 31, 1912. It was as though the Legislature was in session on the day the act took effect and passed the law on that day (Rice v. Ruddiman, 10 Mich. 125) and would only regulate the- salaries of county officers elected or appointed after such act went into effect. Sec. 32 of Art. Ill of the Constitution is as follows: “Except as otherwise provided in this constitution, no law shall extend the term of any public officer or increase or diminish his salary or emolument after his election or appointment; but this shall not be construed to forbid the Legislature from fixing the salaries or emoluments of those officers first elected or appointed under this constitution, if such salaries or emoluments are not fixed by its provisions.” The meaning of this section is clear. There is no ambiguity about it. The words are pointed and direct. They mean just what they say and construe themselves. When it says that the salary of a public officer shall not be increased or diminished after his election it means that the salary or compensation for the term to which he was elected shall not be changed after, but becomes fixed as of the date of the election, although such officer is not inducted into office until the first Monday of January, immediately following such election. (Sec. 1136, Comp. Stat. 1910). This view is borne out by the decision in Burns v. Commissioners, 3 Wyo. 691, 700, 29 Pac. 894, 898, where this court in speaking of this section says: “In the interval between the election or appointment of the public officer and his qualification and induction into office there can be no change in the compensation as well as during the official term.” This judicial interpretation has been followed by this court in otate ex rel. Henderson v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L. R. A. 266; Davis v. Commissioners, 4 Wyo. 477, 482, 35 Pac. 467; Guthrie v. Commissioners, 7 Wyo. 95, 50 Pac. 229; Commissioners v. Mulholland, (Decided Nov. 10, 1913) 136 Pac. 112. We think the meaning of the section has been settled by the — 269 — foregoing cases, and for that reason it need not be further discussed. It is here conceded that on November 5, 1912, that being the day on which defendant was elected, the assessed valuation of Fremont County, as determined from the assessment roll theretofore and for that year made and returned by the assessor of the county, was $10,284,368.82. That was the basis for the classification of the county for the purpose of fixing the salary of the county officers then elected for the next ensuing term. As the assessed valuation exceeded $5,000,000, the county was a first-class county, at the time of defendant’s election under the provisions of Section 1070, sufra, which section was and continued in force until superseded by the amendment. The latter was not retroactive. It provided for a new classification of the counties thereafter for the purpose of fixing the salaries of the county officials — not to change the amount of such salaries as had already been fixed by law. The question as to the amount of defendant’s salary was fixed before the amendment which went into effect after the election and before his induction into the office. To compute the defendant’s salary under the provisions of the amendment would be to disregard the express provisions of the section of the constitution as to the date when the salary should be fixed and overrule the decisions heretofore made and followed by this court. But further, the defendant is not here seeking to overthrow the provisions of the amendatory act but to sustain it in all its parts while the plaintiffs are here asking us to in effect rewrite Section 2 of the Act so as to give it a meaning in violation of its plain and unambiguous language. We are content to follow those decisions which state what we deem to be the correct rule, for any other would disregard the provision of the constitution. We cannot read into that instrument words which import a different meaning from those appearing therein, and to sustain plaintiffs’ contention it would be necessary to disregard and render nugatory an express in — 270 — hibition contained therein. The defendant’s salary or compensation as County and Prosecuting Attorney of Fremont County was fixed at the time of his election in 1912, as determined by the law in force at that time. It follows that the judgment of the lower court was correct and the same will be affirmed. ' Affirmed. Beard, J., concurs. Potter, J., did not sit.