Board of Commissioners v. Stone

7 Wyo. 280 | Wyo. | 1898

Coen, Justice.

The evidence in this case shows that the defendant in error as county treasurer of Laramie County executed a written appointment of L. E. Stone as deputy county treasurer, on January 15, 1891. That L. E. Stone took the oath of office and that the paper containing such appointment and oath were filed with the county clerk on January 22, 1891. That said L. E. Stone entered upon the duties of the office and was recognized by the board as the deputy treasurer. Under the date of July 1, 1891, defendant in error addressed a note to the board requesting them to approve such appointment. Upon this note was written in the handwriting of the chairman of the board “Approved July 6, 1891. By order Board Co. Corns. Geo. W. Hoyt, Ch.. Co. Board.” Upon it was indorsed by Ira L. Fredendall, the county clerk, “ Bequest for approval of L. E. Stone, Dep. Tr., Filed July 6, 1891. Ira L. Fredendall. Approved July 6, 1891.” The evidence also shows that the board in February, 1891, refused to allow a claim for salary to said L. E. Stone as such deputy, and that no salary was allowed for his services up to July 6, 1891, but for the remainder of the two years’ term of E. W. Stone as treasurer allowed his salary at the rate fixed by statute of $100 per month, and it was paid. The journal in which the proceedings of the hoard were recorded fails to show any consideration of • the appointment or any action upon it whatever. The claim for salary of the deputy prior to July 6, 1891, was assigned to defendant in error, and the board finally refusing to pay it, defendant in error brought suit for it on January 5, 1897.

By statute the counties of the State are divided into four classes, Laramie being a county of the first' class. Section 6, chapter 56, Laws of 1890-91, provides “that the treasurer of each county of the first class may appoint, by and with the consent of the board of county commissioners, one deputy, who shall receive an annual salary of twelve hundred dollars.” Section 2 provides that all deputies and assistants, provided for in the act, shall be appointed subject to the approval of the board. Yet the act in other sections authorizes various officers to appoint one deputy, saying nothing of the necessity for the consent of the board, and then further providing that such officer may “with the consent of the board,” appoint such other deputies as may be necessary, etc. In other sections, including Section 6, under consideration in this case, it is provided specifically that the appointment of the one deputy allowed to an officer shall be “by and with the consent of the board.” The meaning of the chapter is not clear, but the intention seems to be that the individual selected for the place shall in all cases be subject to the approval of the board, though the officer in one. class of cases is entitled by law to the assistance of a deputy. In another class not only must the individual selection be approved, but the officer is not entitled to the services of a deputy at all except by the consent of the board. And this court has so construed it in Griggs v. Commissioners, 6 Wyo., 274.

The present case belongs to the latter class, and the important question is whéther the consent of the board is shown. Secs. 1842 and 1843, R. S., in defining the duties of the county clerk provide that it shall be his duty to record in a book kept for that purpose, all proceedings of the board, but there is no provision of statute making such record the only evidence of its official acts. It is clear that the board can not avoid liability for its official acts by the failure of the proper officer to record its proceedings as required by law, and we think the weight of authority in such cases is that when there is an entire omission to make any record of the particular proceeding, it may be established by parol evidence. Hutchinson v. Pratt, 11 Vt., 402. Bridgford v. Tuscumbia, 16 Fed., 910; Bigelow v. Perth Amboy, 25 H. J. L., 297; Dillon’s Mun. Corp. (3d ed), Sec. 300 and cases cited. We think the items of evidence offered by the defendant in error were admissible as circumstances tending to show that action was taken by the board and what the action was. From this evidence it appears that the matter of the appointment of the deputy was submitted to the board at its meeting on July 6th, and that the chairman indorsed the request for its approval ‘ ‘ Approved by order of the board.” This general approval of an appointment made January 15, and filed with the board January 22, together with the fact that L. E. Stone had attended the meetings of the board during this interval and been recognized by it as deputy treasurer, would indicate that the approval was intended to operate from the date of the appointment. There are other circumstances, such as the refusal of the board in February to allow a claim for the services of the deputy, which tend to a different conclusion. All the evidence was submitted to and passed upon by the trial court, and from it the court found for the plaintiff, which involved a finding that the board had approved the appointment and that it was a general approval of the appointment as made and intended to operate from its date.

We think the finding is fairly sustained by the evidence, and we are not disposed to disturb it.

But it is urged that the claim of the defendant in error is a liability created by statute and is barred by the statute of limitations. Sections 2368 and 2370 R. S. are as follows: “Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action accrues.” * * * “Within four years an action upon a contract not in writing, either express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.”

In 1891 the Legislature passed an act amendatory of Sec. 2370, the title of which is, “An act to amend and re-enact section twenty-three hundred and seventy of the Revised Statutes of Wyoming, in such manner as to repeal all limitations arising under contracts not in writing, either expressed or implied, shall be brought within eight years after the cause of action accrues.” Then follows the act: “ Be it enacted by the Legislature of the State of Wyoming: Sec. 1. That Section 2370 of the Revised Statutes of Wyoming be, and the same hereby is, amended and re-enacted so as to read as follows: Section 2370. Within eight years an action upon a contract not in writing, either expressed or implied; an action upon a liability created by statute other than a forfeiture or penalty. ’ ’ This action was brought within eight, but not within four years, and the plaintiff in error contends that the subject matter of the second clause of Section 2370 is not embraced in the title to the act of 1891, that by Section 24, Art. 3, of the constitution the act is void so far as it would affect such second clause, and that the limitation of four years is still in force as to this claim.

Section 24, Art. 3, of the constitution is as follows: “!No bill except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” The object of this provision is well understood. It was to prevent surprise or fraud in legislation by means of provisions in bills of which the titles gave no intimation. It was not intended that the title should be an abstract of all the various provisions that a bill 'might contain, nor was it intended to prevent the incorporation into a single act of the entire statutory law upon one general subject, but only that every provision must be germane to the subject expressed in the title. Section 2370 is contained in Chapter 2 of Division 2 of Title 38 of the Eevised Statutes. No question is, or can be, made as to the validity of the act as originally passed. This revision was adopted prior to the adoption of the constitution, while Wyoming was a Territory, and the original titles of the various acts are not preserved. But the title of the chapter in the revision is ‘ ‘ time of commencement of actions,” and the chapter contains our statute of limitations. A reference, therefore, to the section by its number accurately indicates the general subject of the legislation to be affected by the amendment. And it has been, we think rightly, held that it was not to amendments of general statutes thus consolidated into a code that the section was intended to apply, but it was aimed at the separate acts in their original enactment; that in the case of amendments to a code it is sufficient that the title refer to the chapter and section specifically, and declare the purpose to amend or supplement it. People v. Howard, 73 Mich., 10; Robby v. Shepherd, 42 W. Va., 290; State v. Mines, 38 W. Va., 137; Brown’s case, 91 Va., 762; Bell v. Maish, 137 Ind., 229; Dodge v. State, 17 Neb., 140; State v. Berka, 20 Neb., 375; Sutherland Stat. Cons., Sec. 101. In Brown’s case supra the subject is very ably discussed and a great many authorities collated. Of course it must be understood that all the provisions of the amendment must be germane to the subject of the amended section.

In this ease the title attempts to go beyond the requirements of the constitution and to state the effect, or some part of the effect, of the amendatory act. But the grammatical structure of this part of the title is so extraordi nary as to convey no meaning whatever. It does perhaps direct attention to the fact that the act has reference in some way to the subject of limitations, hut it does mot state the object or purpose of the act in a way that me average mind can comprehend it, and we think this part of, the title may be pronounced at least harmless and of no 'effect.

The judgment will be affirmed.

PotteR, C. J., concurs. Knight, J., did not sit in this case, it having been heard and submitted during the lifetime of the late Mr. Chief Justice Conaway.