Scharrenbroich v. Lewis & Clark County

33 Mont. 250 | Mont. | 1905

MR. JUSTICE MILBURN

delivered the opinion of the court.

This ease is on appeal from a judgment in favor of the plaintiff and respondent. The plaintiff was elected sheriff for the county of Lewis and Clark in 1904 and is still the incumbent of that office. In the months of March, April and May he, in obedience to lawful orders, transported three persons to the insane asylum and one to the reform school, necessarily traveling twelve hundred and thirty-eight miles, for which distance the statute, in force at the time of his election, allowed him $185.70 for mileage of himself and the persons in his charge. His actual expenses were $90.65, leaving, as respondent claims, “$95.05 as clear gain or profit to him for the services performed in traveling and dieting and conveying the persons to the asylum and school.” His claims were disallowed in part, he being allowed the sum of $90.65, the actual amount of his expenses. The court below upon an agreed statement found the amount claimed by the sheriff and rendered judgment against the appellant Lewis and Clark county for $185.70. Hence this appeal.

The question to be settled is: Which law applies — the law in force at the time of the sheriff’s election, which allowed bim ten cents per mile mileage, or Senate Bill No. 87 (Chapter 86, page 180, Act of March 3, 1905), passed after his taking office and allowing actual expenses only? The discussion has gone over a wide field, taking into consideration numerous sections of the original Codes, which were passed as a whole in 1895 and amended at the same session in many particulars. There has been a wide range in the discussion as to what laws have been repealed by implication, expressly and by substitution. It is interesting, but not important in this case, to trace the legislation affecting and relating to the income and expense account of the sheriff.

It is conceded that the present statute, which allows only actual expenses to the sheriff, is valid and binding upon all officers elected after the date of its passage. It is also understood that the Act in force at the time of the election of the sheriff was valid.

The point made by respondent is, that the Constitution (section 31, Article Y) prohibits the increasing or diminishing of the amount the sheriff shall receive for expenses during the term of office to which he is elected. The section is as follows: ‘ ‘ Sec. 31. Except as otherwise provided in this Constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment ; Provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this Constitution, where such salaries or emoluments are not fixed by this Constitution. ’ ’

We think it impossible to reconcile all the different definitions and attempted definitions of the words “compensation” and “emolument,” as used in the several sections of the statute and in the opinions of this court, unless we adopt what we believe has always been the intention of the legislature and the view of this court, that in respect of sheriffs the word “salary” means what it ordinarily means: a fixed compensation, made by law to be paid periodically for services, whether there be any services actually rendered or not. The word “emolument” is more comprehensive than “salary.” But the Constitution says “salary or emolument.” There are those who receive salaries, and there are other officers who receive certain emoluments which are not salaries. For instance, section 4592 of the Political Code says: “The county surveyor, coroner, public administrator, justice of the peace, and constables may collect and receive for their own use, respectively, for official services, the fees and emoluments prescribed in this chapter. All other county officers receive salaries.” This last sentence, saying that “all other county officers receive salaries,” is pregnant with meaning, being unnecessarily put into that section, unless it is there placed from an abundance of caution, to let the people know that certain county officers receive salaries, and that the words “fees and emoluments” are not to include in their scope and meaning the word “salary,” and that salaried officers are not to have “fees and emoluments” other than salaries from the state or county. In other words, that section might be well read thus: Whereas all other county officers receive salaries, therefore, the county surveyor et al., who do not receive salaries, may receive and collect fees, etc., for their own use.

The object of the legislature was to have certain services performed for the people, and not to make money for a sheriff or to set him up in business. The old idea of paying an officer was to feed him and clothe him and take care of his family, while he was giving his services to the people. There never was any idea that holding public office was a private business. The purpose of the people is to make its officers whole, not to enrich them. The salary is to pay the officer for his time and services. The mileage as originally fixed was a uniform rate fixfed by the legislature, with a view to make the sheriff whole for what he might lay out on account of the people. It was not the intention of the legislature to give the sheriff ten cents a mile to take a prisoner from Miles City to the penitentiary, in order that he might be privileged to figure out how cheaply he could carry him — perhaps to the great discomfort of the unfortunate convict — and how big a margin of profit or gain he could make out of the performance of his own duty to take the prisoner to the penitentiary in comfort and safety. It never was intended that the ten cents per mile should be an inducement to the sheriff to take five persons separately, and thereby get much more for himself than he would get if he should take' them at one and the same time with one deputy to assist him.

The same reasoning would apply to the feeding of prisoners in the county jail. If the statute allows fifty cents per day for feeding a prisoner, there is no understanding that the sheriff may make any gain or profit for his private use out of this stipend. The direction of the legislature is to give that prisoner fifty cents’ worth of food every day, and not to feed him perhaps on bread and water at an expense of five cents, thus mairing forty-five cents for the sheriff. The object of the law is to put food into the stomach of the prisoner, and not money into the pocket of the sheriff.

If John Doe should be lawfully elected to the office of sheriff of a certain county, but should be counted out and his opponent installed, and, upon a contest, at the end of a year he should gain the office and the other man be ousted, how about the salary and the mileage account? Certainly, the de facto sheriff would not get the salary, but the lawfully elected man would; but would the latter, who had not served during the first year, be entitled to ten cents a mile for every prisoner transported to the penitentiary meantime and fifty cents a day for every prisoner fed in the jail, or to the difference between what it actually cost and what was paid therefor by the county? We think not. If it were a part of the compensation fixed by law for the performance of certain services by the sheriff in the same way and manner as the salary is, then the sheriff who had been kept out of office for the year unlawfully would be entitled to the mileage as well as the salary. But is there anyone who would venture to say that he could successfully sue in any court of justice to collect the mileage, or the difference between the actual cost of transportation of persons and the mileage, or the difference between the actual cost of feeding prisoners and the allowance of fifty cents per day?

We have not had any authority, except one, called to our attention supporting any other views than those we have advanced above, and that case is Apple v. County of Crawford, 105 Pa. St. 300, 51 Am. Rep. 205. This case seems to depend largely upon the definition of the word “emolument,” as found in the dictionaries. We cannot see wherein the dictionaries are opposed to the views hereinbefore set forth. We acknowledge that the word “emolument” includes the meaning of “gain,” “profit,” “compensation,” etc. But the intention of the legislature must be considered in determining what is meant, not only by “emoluments,” but who shall receive them. In this case we do not consider that the legislature ever intended that the sheriff should make a cent either in traveling on business or feeding prisoners, whether the law allows ten cents a mile or “actual expenses.” We think that the legislature probably understood that the expenses.averaged about ten cents a mile, including guards, dieting, transportation, etc., and that in some cases sheriffs saved something honestly, and in other cases they lost. But whether loss or gain, it was for the legislature to say how much they should have to meet expenses. Now all sheriffs are treated alike, and there is not any opportunity for one to gain unjustly and another to lose unjustly in the performance of his duty.

Rehearing denied January 29, 1906.

The salary pays the sheriff for taking the person to prison. The “mileage” paid the expense incurred. The actual expense was paid by the ‘ ‘ mileage, ’ ’ were it more or less. Now the actual expense, and not any more or less, is paid by the people.

For the reasons above stated we do not believe that the Constitution of the state is violated by the legislation complained of, when applied to officers elected prior to its passage, and believing that the court below erred, the judgment is reversed and the court is directed to enter judgment for the defendant upon the statement of facts submitted.

Reversed and remanded.

Mr. Chief Justice Brantly and Me. Justice Holloway concur.