State ex rel. Sommer v. Erickson

Cassoday, O. J. Counsel for the relator is undoubtedly right in claiming that unless tbe relator’s compensation as sheriff was changed, pursuant to ch. 217, Laws of 1901, by the action of the county board August 27, 1902, then it remained to the end of his term at $1,500 per annum for all services to be performed within the county for which the county was liable, as fixed March 16, 1896. There was certainly an attempt on August 27, 1902, to make such change,, pursuant to ch. 217, Laws of 1901. Counsel contends that it was ineffectual, for several reasons: 1. Prior to the passage of that act the statute required the county board, at its annual meeting, to fix; the salary of every county officer to be elected in the county during the ensuing-year, and that the salary so fixed should “not be increased or diminished during his term of office.” Sec. 694, Stats. 1898. Of course, that did not prevent the legislature from changing such statute. The act in question declared that “the county board of any. county” might, “at any time before or during-the term of office of the sheriff, by resolution, change the-method of compensating the sheriff, undersheriff and deputies from fees, now provided by law, to salaries,” etc. Sec. 1,. ch. 217, Laws of 1901. The act further declared that it “shall apply to all sheriffs, including those now holding office or hereafter to be elected.” Sec. 3, ch. 217, Laws of 1901. The argument is that, while the board were at liberty to make such change during the relator’s then present term of office,, yet that the action of the board had left it ambiguous as to: whether such change was intended to apply to the relator, or to his successor in office. The resolution mentioned in the foregoing statement is that the then “pi'esent method of paying the sheriff a salary for work done within the county, and fees for work done outside the county, be changed in pursuance of” that chapter; and the committee of the county board then reported “that ihereafier the sheriff of Douglas county be paid a salary for all work of every kind- — civil and crim [439] inal — inside and outside of Douglas county, and outside of ' tbe state,” and therein fixed tbe salaries of tbe sheriff, under-sheriff, and deputy, and prescribed the time and manner of paying such salaries. Such report of the committee was adopted so as to effect the change “in pursuance” of the act the same as the resolution had been. We must hold that the action of the board was unambiguous, and applied to the relator. 2. It is claimed that ch. 217, Laws of 1901, did not apply to Douglas county, because at the time of its enactment the sheriff of that county was being compensated by a salary for all services performed within the county, as prescribed by sec. 694a, S. & B. Ann. Stats., and by fees then provided by law for all other services. Other counties, as well as Douglas county, were at the time partly under the fee system and partly under the salary system prescribed in the section of the statute last cited. Unless the act in question authorized such counties to change the method of compensating the sheriff, undersheriff, and deputies from the fees then provided by law to salaries to be paid “in lieu of all fees, per diem and compensation for*services rendered by them, except for keeping and maintaining prisoners in the county jail,” then it is obvious' that such counties — including Douglas county — will be in a class by themselves, with a double system of compensating sheriffs. The act expressly gives the power to make such change to “the county board of any county,” and is expressly made to “apply to all sheriffs, including those now [then] holding ofiice.” The act expressly repealed ch. 151, Laws of 1899, which related only to Milwaukee county. Sec. 2, ch. 217, Laws of 1901. The bill for the enactment in question was introduced in the senate eighteen days after the decision of this court in Milwaukee Co. v. Isenring, 109 Wis. 9, 85 N. W. 131, declaring certain acts of the legislature respecting the compensation of sheriffs in Milwaukee county unconstitutional and void. ' The obvi [440] ous purpose of cb. 217, Laws of 1901, was to relieve Milwaukee county from tbe effect of that decision, and also to give power to tbe county board of every county in tbe state to make sucb change. 3. Counsel contend that tbe county board did not comply with tbe act in question by tbe resolution of August 27, 1902. Tbis claim is based upon tbe ruling of this court in Parsons v. Waukesha Co. 83 Wis. 288, 290, 53 N. W. 507, where tbe sheriff was under a salary prescribed by sec. 694a, S. & B. Ann. Stats. In that case tbe late Mr. Justice PiNNey, speaking for tbe court, said: “Under tbe system of compensation by specific fees, for which the salary is merely a substitute, tbe county would not be liable for livery hire in subpoenaing witnesses, or for car fare and livery hire in summoning the jury for tbe regular terms of tbe circuit court; and, as to assistance and conveyance in making arrests in criminal cases, tbe sheriff, under tbe fee system, could claim nothing beyond tbe prescribed fee for tbe arrest and conveyance of prisoners. . . . Tbe object of tbe statute, and of tbe action of tbe county board under it, was to give a gross sum in lieu of specific fees, but not to open tbe door for tbe sheriff to make charges against tbe county not theretofore authomzed or allowed by law.” That act made tbe salary cover all fees and compensation for tbe sheriff, undersheriff, and deputy for all services within tbe county, except tbe fees of sheriffs in civil cases. Tbe resolutions in question made tbe salaries of tbe sheriff, under-sheriff, and deputy therein fixed to cover “all work of every kind, civil and criminal, inside and outside of Douglas county, and outside tbe state of Wisconsin,” and also required tbe sheriff to “keep a true account of all tbe receipts of bis office in civil and criminal cases, and on tbe first day of each and every month turn all moneys into tbe county treasury with a verified statement of sucb receipts, and that tbe sheriff also keep a true account of all tbe disbursements [441] •of himself and deputies in administering their said offices ■and render to-the county board each month verified statements of such disbursements and expenditures, to be allowed ■and paid by Douglas county. And that the county board at •its meetings audit the said receipts and disbursements of the ■sheriff’s office.” Ch. 217, Laws of 1901, not only required the sheriff to “keep accurate books of account,” as stated, but ■also to “carry the items of charges into ’ a ledger account,” ■and to “pay to the county treasurer all fees, per diem and other emoluments -of whatever kind received by him, and •shall at the end of each quarter of the year file with the ■county clerk, to be laid before the county board, a sworn ■statement of all such fees, per diem" and emoluments collected by him or for him during the quarter of the year, ■and all the expenses of Ms office during such timef’ and made such salaries “in lieu of all fees, per diem and compensation for services rendered by them, except for keeping and maintaining prisoners in the county jail.” The distinction between the two statutes is very broad. Such salaries, under •ch. 217, Laws of 1901, were to cover the actual services of •such officers “in lieu of all fees, per diem and compensation” previously authorized “for services rendered” by such officers, “except for keeping and maintaining prisoners in the ■county jail.” The obvious purpose of requiring the sheriff •to “carry the items of charges into a ledger account,” and to lay before the board a sworn statement of “all the expenses •of his office during such time,” was to enable the county board to audit the “disbursements of the sheriff’s office,” as well as the receipts of the sheriff’s office, in order that such •disbursements and expenditures as should be properly allowable as expenses of the sheriff’s office should be paid by the •county as provided in the resolutions. We perceive no good reason why the board were not at liberty to fix a salary which should be in addition to such lawful disbursements, as well [442] as a salary which should include such lawful disbursements. We must hold that the resolutions complied with the statute in question. 4. Counsel contends that the act in question is repugnant to the provision of the constitution which requires the legislature to “establish but one system of town and county government.” Sec. 23, art. IY. As indicated, the act applied! to every county in the state. The sheriff was elected the same as before. His subordinates were appointed the same as before. The office was administered -the same as before.. Absolute -uniformity is not required. The system is only to-be “as nearly uniform as practicable.” The mere fact that the county board of any county may make such change in the-method of compensating sheriffs does not interfere with such-uniformity. Verges v. Milwaukee Co. 116 Wis. 200, 93 N. W. 44. The decision in the Rooney Case, cited, was-under an act relating to a particular county. Rooney v. Milwaukee Co. 40 Wis. 23. State ex rel. Peck v. Riordan, 24 Wis. 484, cited, was similar in that respect. True, the constitution provides that the compensation of no public officer shall “be increased or diminished during his term of office.”' See. 26, art. IY. But it was held many years ago that such-provision “only applies to officers who receive a fixed salary from the public treasury of the state.” Milwaukee Co. v. Hackett, 21 Wis. 613; Rooney v. Milwaukee Co. 40 Wis. 26; State ex rel. Martin v. Kalb, 50 Wis. 178, 6 N. W. 557. This-being so, it is obvious that the act in question was not invalid merely because it authorized the change in the compensation of the sheriff during his term. By the Court. — The judgment of the superior court of Douglas county is affirmed.