Bradley v. Esmeralda County

By the Court, Norcross, C. J: This is an action brought by the above-named respondent against the County of Esmeralda to recover a judgment in the sum of $4,565.75. The case was tried by the court without a jury, and a judgment rendered in favor of the plaintiff for the sum of $3,203.65.. From this judgment the defendant county has appealed. The respondent, at all times mentioned in the complaint, was the sheriff of Esmeralda County, and the only questions involved in the action relate to the compensation which the respondent was legally entitled to by virtue of his office of sheriff and certain ex officio offices. By an act of the legislature, approved March 15, 1905, regulating the compensation of county officers in Esmeralda County, it is provided: "Section 1. From and after the approval of this act, the county [164] officers of Esmeralda County, State of Nevada, named in this act, shall receive the following salaries and fees in full compensation for their services: The sheriff shall receive four thousand ($4,000) dollars per annum, and such fees, in civil actions, as are now allowed by law, and as ex officio assessor, the sheriff shall receive ■ twelve hundred ($1,200) dollars per annum” etc. (Stats. 1905, p. 210, c. 109.) The remaining portion of the Section refers to the compensation of other county officials and has no bearing upon the questions involved in this action. Section 2 repeals "all acts or parts of acts in conflict with the provisions of this act.” It is one of the contentions of counsel for appellant that respondent for his services as ex officio assessor for the year 1905 was not entitled to the full yearly compensation for the reason that the act did not take effect until after two and one-half months of the year had expired, and hence it was error for the court to alloAV the full compensation or any amount therefor in excess of $950. In support of his ruling that respondent was entitled to the full annual salary as ex officio assessor for the year 1905, the trial judge, in his opinion, quotes the following from 23 Am. & Eng. Ency. Law, 2d ed. 386: "When an officer serving for an annual salary performs his duty for the year within less than a year, he is entitled to a year’s salary upon the performance of such duties, and this though the office may be abolished before the end of the year.” The following cases are cited in the note to support the text quoted: U. S. v. McCarthy, 1 McLean, 306, Fed. Cas. No. 15,657; U. S. v. Edwards, 1 McLean, 467, Fed. Cas. No. 15,026; U. S. v. Dickson, 15 Pet. 141, 10 L. Ed. 689; U. S. v. Pearce, 2 Sumn. 575, Fed. Cas. No. 16,020; Ex Parte Lawrence, 1 Ohio St. 431. The question involved in the federal cases cited, supra, was the right of the claimant to receive certain fees and percentages for the collection of public funds in addition to a small specified annual salary; the total salary, fees, and percentages not to exceed a specified amount for any one year. That these cases may be distinguished from the one at bar, a few extracts, we think, will show. In the Edwards case, supra, the court said: " By graduating the allowance of commissions [165] to quarterly payments and giving it the character of a salary, injustice is done and the law is misconstrued.” In the McCarthy case, supra, the court reached a conclusion as follows : " We think therefore that the defendant, having received an amount which would give him’, at one per' cent, the full extent of his allowance, for the year, is'entitled to it, though he serves but half the year. The salary of $500 will, of course, be allowed for the' portion of the year the defendant remained in office.” In the Pearce case, supra, the court said: "It is very clear that under this statute all the fees and emoluments (exclusive of the salary, which would be governed by other principles), actually received by any collector during his continuance of office, would belong to him for his own use, notwithstanding his subsequent removal from office within the same official year:’ In the Dickson case, supra, it was held that, so far as the salary was concerned, it should be apportioned according to the time actually served. In the Lawrence case, supra, the Ohio court, by Bartly, C. J., said: "Where the duties of a public officer, entitled to an annual salary, continue through the entire year, the salary accrues and becomes payable for the space of time only during which the duties are required'to be performed; and a repeal of the law creating the office' before the expiration of the year would stop the accruing compensation at the time when the duties of the office ceased; but where the duties of an officer, entitled to an annual salary, are of such a nature that all his duties for the year may be performed and completed within less time than the year, the compensation for the entire year would be payable, in case the duties required by law for the year are performed, although the office might be abolished before the end of the year, and, in such case, where there is only a partial performance before the abolishment of the office, the compensation should be apportioned to the duties performed, and not to the lapse of time.” In the case last mentioned, Lawrence was the reporter for the supreme court in bank. But one term of the court'for the year was authorized. The reporter attended upon this [166] term and fully performed all the duties required of him by law for the entire year. It was held that he was entitled to the full annual compensation, although his office terminated by operation of law before the end of the year. It cannot be said, under the laws of this state, that a county assessor has no duties to perform prior to the first Monday in March of each year. For example, he may be required to collect poll taxes at any time during the year. (Comp. Laws, 1178.) During the month of January he is required to investigate the proceeds of mines and assess and collect the taxes due thereon. (Comp. Laws, 1149.) Other provisions of the statute doubtless exist which require, or may require, the official services of the county assessor during every month of the year. We think therefore that the salary of respondent as ex officio county assessor should be apportioned upon the basis of $100 per month for the entire year, and that he is not entitled to collect the apportionment for the first two and one-half months of the year 1905. The next question presented is the right of respondent to retain certain fees claimed by him as ex officio collector of licenses for Esmeralda County, amounting to the sum of $3,423.89. By the provisions of section 115 of the general revenue act of this state: "The sheriff in the several counties of this state shall be ex officio collector of licenses, as provided in this act” etc. (Stats. 1891, p. 174, c. 99; Comp. Laws, 1187.) Section 133 of the same act provides: " The sheriff, as ex officio license collector, shall receive, and is hereby authorized to retain, as compensation for the collection of licenses, six per cent of the gross amount of each business license sold.” (Comp. Laws, 1205.) The office of collector of licenses is a separate and distinct office, and has been so regarded in all of the revenue acts ever passed by the legislature of this state. (State v. Laughton, 19 Nev. 202; State v. La Grave, 23 Nev. 373, 382.) The act of 1905, swpra, fixing the salary of certain officers "named in this act;’ makes no mention of the office of collector of licenses, nor does it use any general words which would include it, as was the case in the statute regulating the salaries of the officers of Eureka County, construed in the case of State v. Beard, 21 Nev. 218, upon which appellants so much [167] rely. This court concluding the opinion in the Beard case, supra, said: "Abundant scope is left for the operation of section 133 of the revenue law, when it is held to apply only to the sheriffs of other counties who are not paid salaries in lieu of all other compensation.” The contention of counsel for appellant that the provisions of sections 1 and 8 of " An act regulating the compensations of county officers in the several counties of this state, and other matters relating thereto? approved March 11, 1885 (Stats. 1885, p. 85, c. 79), is applicable to the office of sheriff of Esmeralda County, and, so far as it affects the office of collectormf licenses, has not been repealed by subsequent acts, is, we think, without merit. Section 1 of said act provides: "The following-named officers of the several counties in this state shall receive the following compensations, which shall be in full for all services and all ex officio services required by law” Section 8 provides: "The sheriff of Esmeralda County shall receive three thousand dollars per annum; * * * the assessor shall receive two thousand dollars per annum, which shall be in full payment for all services performed by himself or deputies. * * *” By the act of March 19, 1891 (Stats. 1891, p. 96, c. 85), the sheriff of Esmeralda County was made ex officio assessor, and an annual salary in solido fixed at $4,000, "which shall be compensation in full for all his services as sheriff and ex officio assessor.” We think the act of 1885, supra, in so far as it affects the salary of the office of sheriff, or of any ex officio office attached thereto, is so far in conflict with the provisions of the said acts of 1891 and 1905 that such provisions are repealed. It is ordered that the judgment be modified by a reduction in the sum of $250, and, as so modified, the same be affirmed, to wit, in the sum of $2,953.65.