148 Wis. 427 | Wis. | 1912
The trial court sustained the demurrer on the -ground that the complaint did not state facts 'sufficient to constitute a cause of action. It held that the resolution adopted by the county board in 1902 was sufficient to change the method of compensating the registers of deeds thereafter elected, from the fee to the salary system, as authorized by sec. 7645, Stats. (Supp. 1906: Laws of 1901, ch. 410). Plaintiff claims the resolution was insufficient to effect such a change, for two reasons: first, because the duration of such change was by the language of the resolution limited to the term of the register of deeds to be elected in 1902; and second, because it required two resolutions to complete the change,
It is evident from tbe- preamble of tbe resolution tbat tbe county board intended to act pursuant to tbe provisions of cb. 410, Laws of 1901, now sec. 764b, Stats. It will be presumed tbe board acted in good faitb and intended to accomplish a valid and lawful result. State v. Eau Claire, 40 Wis. 533. Hence, if tbe language employed is susceptible of two constructions, one rendering tbe resolution void and tbe other valid, tbat construction wbicb saves it will be adopted. Nichols v. Holliday, 27 Wis. 406; Attfy Gen. v. Eau, Claire, 37 Wis. 400, 438; Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460. Tbe preamble and opening sentence of tbe resolution read as follows:
“Whereas, by chapter 410, Laws of 1901, tbe county board of any county in this state may by resolution change tbe method of compensating tbe register of deeds, bis deputies, clerks, and copyists, from fees now provided by law to salaries, and fix tbe amount of tbe salaries paid the register of deeds thereafter elected, bis deputies, clerks, and copyists: therefore it is resolved tbat tbe method of compensating tbe register of deeds for Dane County to be elected during tbe ensuing year, to wit, tbe year 1902, bis deputies, clerks, and copyists, be- and tbe same is hereby changed from fees now provided by law to salaries.”
It is contended by plaintiff tbat tbe phrase “to be elected during tbe ensuing year, to wit, tbe year 1902,” limits tbe duration of tbe intended change to tbe term of tbe register of deeds elected in 1902, and tbat such a limitation rendered tbe resolution void. Unquestionably tbe board bad no power to provide for a temporary change. If a lawful change was effected it was a permanent one. Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; State ex rel. Williams v. Sawyer Co. 140 Wis. 634, 641, 123 N. W. 248. It must be conceded tbat tbe language of tbe resolution will bear tbe con
The trial court transposed the phrase, “to be elected during the ensuing year, to wit, the year 1902,” to follow the words “register of deeds,” a couple of lines below, making the resolution read: “Resolved, that the method of compensating the register of deeds for Dane County, his deputies, clerks, and copyists, be and'the same is hereby changed from fees now provided by law to salaries, and the salary of said register of deeds to be elected during the ensuing year, to wit, the year 1902, be and the same is hereby fixed,” etc. Judicial authority is not wanting to sustain such transposition. Indeed, greater changes in, and additions to, enactments or writings have been made in order to carry out their evident intent. Thus in the case of Nichols v. Holliday, 27 Wis. 406, the words “with respect to the baggage and effects of their guests” were entirely supplied by the court. In Palms v. Shawano Co. 61 Wis. 211, 21 N. W. 77, the word north in a legislative act was substituted for the word south. In Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W. 422, words not in the Revision of 1878 were supplied from the repealed statute of 1875. In State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, the equivalent of the phrase, “of the vote of the state, county or district in which such person is a candidate,”
It is also contended that two separate resolutions were necessary to successfully inaugurate the change, one providing for a salary in lieu of fees and another fixing the salary. The case of State ex rel. Williams v. Sawyer Co. 140 Wis. 634, 123 N. W. 248, is relied upon to sustain this contention. TRe act then construed was ch. 651, Laws of 1907, now secs. 2523 — 1 to 2523 — 21, Stats. TRe first section thereof created in each county of the state one or more courts, as might be provided for, to be known and designated as special ■municipal courts. TRe second section read: “The county board of supervisors of any county may, by a majority of all members elect, adopt the provisions of this act by resolution and upon such adoption may thereafter, in like manner and upon a like vote, provide for a special municipal court or courts,” etc. This court Reid that the act clearly contemplated the passage of two separate resolutions, one adopting the provisions of the act, and thereafter another providing for the court established. SucR ruling was in conformity with the plain
The further claim is made that, even though the resolution passed in 1902 was sufficient to accomplish a change from a fee to a salary system, yet, inasmuch as the county board subsequently never fixed the salary of the register of deeds as provided for in sec. 7646, Stats., the plaintiff was entitled to fees as prescribed by sec. 764, Stats. (1898), and not to a salary. If this claim is correct, then any failure on the part of the county board to fix a salary as required would ipso facto operate as a return to the fee system. The county board by a failure to comply with the law would accomplish what this court held in the case of Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460, it could not do by express resolution, namely, change back from the salary to the fee system.
“The county board at tbeir annual meeting shall fix the amount of salary which shall be received by every county officer, including county judge, who is to be elected in the county during the ensuing year and is entitled to receive a salary payable out of the county treasury, and the salary so fixed shall not be increased or diminished during his term of office. Such salaries shall be paid at the end of .each month. All salaries, the amounts whereof have heretofore been fixed by such board or established by law, shall be and remain the salaries of such officers until the county board shall fix the amounts thereof in accordance with this section, and when such amounts are once so fixed they shall be and remain the salaries of such officers until changed by the county board.”
Sec. 7646 says: “And the county board of such county shall, thereafter, at their annual meeting preceding the election of the register of deeds fix the amounts of the salaries of the register of deeds to be elected and his deputies, clerks and copyists and the number thereof for the term.” Plaintiff argues that this latter enactment is a special statute and that see. 694, Stats. (1898), has no reference to the salary of the register of deeds fixed pursuant to its provisions. We cannot so regard it. Sec. 7646 is no more a special statute than was 694a, Stats., relating to the fixing of the sheriff’s salary. And it was held in Northern T. Co. v. Snyder, 113 Wis. 516, 554, 89 N. W. 460, that the salary of the sheriff once having been fixed by the county board, and not thereafter changed, at a time when the board had power to do so, it remained as fixed. The same is true as to the salary of a register of deeds. Sec. 694 steps in and justly and beneficently relieves a county officer from taking an officer cum onere and without a salary where the county board has negligently or otherwise failed to comply with the law relative to the fixing of salaries.
It appears that from October 1, 1901, to October 1, 1909, registers of deeds were relieved by ch. 469, Laws of 1901,
Tbe decision reached upon tbe questions discussed renders it unnecessary to consider tbe other questions raised by plaintiff’s counsel. In passing it may not be amiss to observe tbat plaintiff was .elected with tbe expectation of receiving a salary; tbat be accepted sucb salary for one term; was re-elected with tbe understanding tbat be was to receive a salary for tbe next term, and did receive it. He seemed satisfied with tbe situation till April, 1910, when be claims be discovered tbat be was entitled to fees instead of a salary. Tbe discontent began with tbe discovery. “Where ignorance is bliss ’tis folly to be wise.”
By the Court. — Order affirmed.