Opinion No. (1979)
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REQUESTED BY: Gregory G. Jensen, Deputy Valley County Attorney, P.O. Box 40, Ord, Nebraska, 68862. 1. Does a Class 2 county have authority to pay a monthly salary to a county surveyor, or must it pay hourly or daily compensation?

2. Must the compensation for a county surveyor in a Class 2 county be set for the entire term of office sixty days prior to the deadline for filing application for the office?

3. If a county board in a Class 2 county has failed to set a salary for the current term of the county surveyor, may it now establish and pay the county surveyor a monthly salary?

1. Yes, it has authority to pay a monthly salary and must also pay daily compensation for services rendered the county or state.

2. Yes.

3. No, except as to daily fees and expenses and allowances.

1. You describe a situation wherein the candidate for county surveyor in a Class 2 county failed to pay a filing fee, was then elected, but the county board failed to set his salary sixty days before the closing of filings of certificates of nomination.

Section 23-1114, R.R.S. 1943 states, in pertinent part, as follows:

"(1) The salaries of all elected officers of the county shall be fixed by the county board at least sixty days prior to the closing of filings of certificates of nomination to place names on the primary ballot for the respective offices, * * *."

No minimum or maximum salary is specified by statute for the office of county surveyor in a Class 2 county. In addition, Section 33-116, R.R.S. 1943, states, in pertinent part, as follows:

"Each county surveyor shall be entitled to receive the following fees: (1) For all services rendered to the county or state, not to exceed the sum of forty dollars per day; * * *."

Both statutes are mandatory. Under normal circumstances, i.e., a timely setting of salary by the county board, the plain meaning of the above quoted statutes is considered to require a salary plus the payment of daily fees. The two could be identical but not less than the daily fee.

2. As already stated above, Section 23-1114 requires the county surveyor's salary to be set for the entire term of office sixty days prior to the deadline for filing application for the office. A late, untimely attempt to set a salary would violate the statute and would probably run afoul of the restrictions contained in Art. III, section 19 of the Nebraska Constitution which prohibits extra compensation to any public officer after the services have been rendered, or any increase or decrease in compensation of any public officer, including any officer whose compensation is fixed by the Legislature. This section has been held applicable to county officers. See Ramsey v. County of Gage,153 Neb. 24, 43 N.W.2d 593.

3. While it is too late for the county board to exercise its authority and responsibility under Section 23-1114, the legislature had already set compensation for the county surveyor under Section 33-116, the same being $40.00 per day for services rendered the county or state, plus other specified expenses and allowances. Such being the case, it is considered that the county board could now fix the above as the salary for the county surveyor. It would amount to no more than a ministerial action, in effect carrying out a legislative edict, and would have the further effect of satisfying both statutes.