O'Herrin v. Milwaukee County

| Wis. | Nov 3, 1886

Cassoday, J.

There is no question but what the county board fixed the plaintiff’s annual salary at $500 in November, 1813, and that he received that amount in each of the years commencing January 1, 1814, and ending January 1, 1880.

Sec. 95, ch. 155, Laws of 1863, required the compensation of the county superintendent of schools to be fixed by the county board and paid quarterly in cash by the county, with limitations as to the amount below which it could not be fixed. The section was silent, however, as to the time when the amount of such compensation should be so fixed. By ch. 15, Laws of 1867, the county board was authorized, at their annual meeting in November in each year, to fix and determine the amount of the annual salary to be received by each and every county officer “ to be elected in their respective counties during the ensumg yea/r, and whose annual salary ” they had then, or might thereafter have, authority to establish; and the salary thus determined upon should be and remain his salary, without increase or diminution, during his term of office; and, in case of a failure to establish the salary of any such officer, then he should receive the same annual salary as his immediate predecessor in office.

Sec. 95, ch. 155, Laws of 1863, supra, was amended by ch. 177, Laws of 1869, so that the portion of it applying to this case read, in effect, as follows, to wit: “ The compensation of' the county superintendent of schools shall be fixed by the county board of supervisors, and shall be paid quarterly in cash by the county treasurer; and ... in counties and districts containing more than 5,000 and less than 10,000 inhabitants, if the compensation be an annual salary, it shall not be less than $500, nor more than $800; and in counties and districts containing more than 10,000 inhabitants it shall not be more than $1,500, nor less than $800.”

¥e are of the opinion that the plaintiff was a county officer, within the meaning of the act of 1867, and hence that the county board had power to fix the amount of his salary o.r compensation. That the plaintiff was such county officer is strengthened by the language of the act of 1863, designating such officer as “ county superintendent of schools for district number one ” or “ two,” as the case might be. Sec. 86. The same view is further strengthened by the language of ch. 53, La-ws of 1870, expressly amending the act of 1867, to the effect that in case the county board failed to establish the salary of any such county officer as therein provided, “then, and in that case, each and every such officer shall receive the same annual salary as that received by his immediate predecessor in office; provided, however, the county of Walworth shall be, and is hereby declared to be, exempt from the provisions of this act, as far as relates to fixing- and determining the salary of the county superintendent of schools of said county.” Ch. 178, Laws of 1872, and ch. 342, Laws of 1874, amending the above acts, do not change their construction, so far as the questions here presented are concerned.

But notwithstanding the plaintiff held a county office, and the county board had the power of fixing his compensation or salary, still the several acts mentioned must be construed together; and, when so construed, the power of so fixing such compensation or salary must be regarded as subject to the limitations contained in the act of 1863, as modified by the limitations contained in the act of 1869. While the plaintiff’s district contained less than 10,000 inhabitants, as appeared from the census, the county board had the power of fixing his salary at $500 a year, as they did; but that was the minimum. When it appeared by the census of 1875 that the population of the district had increased to 11,921, then the county board had no. power to fix such salary at less than $800 a year, although they had the power to fix it at a higher sum, up to.$1,500 per year. In other words, the law fixed it at $800 a year, and gave the county board the privilege of increasing it, in their discretion, to an amount not exceeding. $1,500 a year. It follows that the plaintiff was entitled to $300 a year more than he received for each of the four years in question, and lifence that the tender of the defendant was insufficient.

The mere fact that the plaintiff accepted the $500 a year without protest or exacting more at the time, did not take away his right to the balance. We do not think, however, that the plaintiff is entitled to any interest on any unpaid balance. He was a public officer, under a salary. His neglect to draw his salary was his own matter. If payment ivas refused, he had his remedy. It would be against public policy to hold that an officer failing to draw his salary is entitled to interest thereon.

By the GouH.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.