Board of Supervisors v. Stephens

177 P. 261, 20 Ariz. 115, 1918 Ariz. LEXIS 79

• Court: Arizona Supreme Court
• Decided: December 31, 1918
• Docket: Civil No. 1647
• Status: Published

Opinions

CUNNINGHAM, C. J.

The appellees commenced this action to prevent the hoard of supervisors from paying the county recorder, county treasurer, county attorney, county assessor and county superintendent of schools, officers of said county, their salaries as provided by chapter 61, laws of 1917. The plaintiffs contend that said officers’ salaries were provided by chapter 2, title 26, Revised Statutes of Arizona of 1901, and laws amending same, .at the beginning of said officers’ terms of office, viz., on the first Monday of January, 1917, and that the legislature is prohibited, by section 17 of article 4, state Constitution, from enacting any law that will have the effect of increasing or diminishing said officers’ salaries during their term of office. The defendants demurred to the complaint, and their demurrer was overruled, and judgment was rendered, restraining the said board from paying the said officers’ salaries other than as provided by the territorial laws as they were continued in force by the Constitution as laws of the state. Section 17, article 22, Constitution, is as follows:

-“All state and county officer's (except notaries public) and all justices of tbe peace and constables, whose precinct includes a city or town or part thereof, shall be paid fixed and definite salaries, and they shall receive no fees for their own use. ”

This provision is a clear declaration of the policy of the Constitution to follow a system of paying official compensation by fixed and definite salaries alone. The words “fixed” and “definite,” as used in said section 17, cannot be understood as having been used to convey the same meaning, because if so understood one or the other would become useless. The word “fixed” is defined by Webster: “Securely placed or fastened; settled; established; firm; immovable; unalterable. ’ ’ Hence, a “fixed” salary is one that is entirely placed or fastened with regard to its duration; is one that is settled to remain for a time.

The word “definite” is defined by the same authority as “a thing defined or determined; a definite thing.” Hence, with such meaning, a definite salary is one defined or determined, a definite thing, and has reference, as used in said section 17, to the exact amount of the salary. Consequently the officers shall be paid salaries fixed, settled, firm for a period of time, and such salaries shall be exactly defined in amount during such period of time.

The intention of the framers of the Constitution, and of the people in adopting that instrument was therefore to enforce under statehood a uniform system of compensating all public officers by paying them salaries for fixed, settled periods of service, and during such periods of service the salaries payable to be definite in amounts.

As preliminary to providing the system of uniform salaries to govern from the date of statehood until the state legislature could act in the premises, in other words, to provide a temporary uniform system of definite salaries for the officers, effective until the legislature could provide fixed and definite salaries, the Constitution prescribed definite salaries for certain named state officers until otherwise provided by law. See section 13, article 5, state Constitution. Subordinate state offices were created by the Constitution without definite salaries being provided for the officers. For illustration, see sections 14 and 17, article 6. In such instances the officers are given such ‘ ‘ compensation by salaries' only as may be provided by law; and the supreme court shall have power to fix said salary until such' salary shall be determined by law.” The office of the clerk of the superior court is created by section 18, article 6, with “such compensation, by salary only, as shall be provided by law. Until such salary shall be fixed by law the board of supervisors shall fix such salary.”

“ . . . The board of supervisors of each county is hereby empowered to fix salaries for all county and precinct officers within such county for whom no compensation is provided by law, and the salaries so fixed shall remain in full force and effect until changed by general law.” Section 4, art. 12, Constitution.

Certain territorial county offices were continued as offices under the state government. Under the territorial laws, certain of county officers holding such county offices were compensated by fees. After statehood no county officer ,could be compensated by fees. Section 17, art. 22, Constitution. We consequently held that officers holding offices, who had before statehood received fees as compensation, after statehood they became officers for whom no compensation is provided by law within section 4 of article 12, supra, and the board of supervisors were empowered to fix their salaries temporarily, until changed by general law.

The county offices of recorder, treasurer, attorney, assessor and superintendent of schools, as they existed under the territorial laws, were continued under the Constitution, subject to change by law. Section 3, art. 12, Constitution. Chapter 2, title 26, Bevised Statutes of Arizona of 1901, and amendments thereto, prescribed means by which the amounts of said officers’ salaries were capable of determination. The existence of prescribed conditions within a county determined the amounts of the salaries of the said county officers. The conditions, viz., equalized, assessed, valuation of property of the county, determined the class of the county, and the class determined the amount of the officers’ salaries. . These laws were not repugnant to the Constitution, but they were in harmony with the policy declaring for a system of compensating officers by fixed and definite salaries. Such laws were therefore continued in force as laws of the state “until they expire by their own limitations qr are altered or repealed by law.” Section 2, article 22, state Constitution.

The said territorial laws, so permitted to remain, in force temporarily, “until they should expire by their own limitation or are altered or repealed by law,” were not enacted pursuant to the Constitution, nor were they subject to the restrictions contained in the Constitution prohibiting their alteration or repeal. Such territorial laws, when enacted, were subject to general legislative alteration, amendment, and repeal at the discretion of the territorial legislature, without regard to the effect such legislation might have on the salaries of county officers. See Harwood v. Wentworth, 4 Ariz. 378, 42 Pac. 1025; Dysart v. Graham County, 5 Ariz. 123, 48 Pac. 213; Williamson v. Gila County, 5 Ariz. 237, 52 Pac. 363; Harwood v. Perrin, 7 Ariz. 114, 60 Pac. 891.

Such laws of the territory as were continued in force as laws of the state were continued as an entirety with their advantages as well as with their disadvantages. The statutes in question here were inherently subject to be altered at any time the legislature saw fit to alter them by general law, and such infirmity in these statutes remained in force as the law of the state after statehood as it was in force prior to statehood, and the Constitution expressly reserved to the legislature of the state the power to alter or repeal all laws of the territory continued in force as laws of the state without limitation on that power.

In the foregoing manner, a temporary system of compensating all state, county and precinct officers was provided by the Constitution. We said, in Patty v. Greenlee County, 14 Ariz. 422, 130 Pac. 757, with reference to the constitutional salary system, as follows:

“It [section 4, article 12, Constitution] is a provision of the Constitution that the Legislature shall fix, ‘by general law,’ the salaries of county and precinct officers; and it was not contemplated that that general scheme devised for uniformity, stability and regularity should be suspended or postponed or nullified for any length of time,.except the interim between admission to statehood and action by the Legislature. ’ ’

We held in that case that a general law immediately superseded the orders or resolutions of the board of supervisors fixing the salary of a county officer for whom no compensation was provided by law. I adhere to the principles recognized in that decision as sound. I am of the opinion that the territorial laws fixing the salaries of county officers, which remained in force as the laws of the state, were no more sacred from alteration than were the orders of the hoard of supervisors fixing the salaries of officers for whom no compensation was provided by law. They stand upon an equal footing in every respect. Both means of fixing salaries were temporary, “and it was not contemplated that the general schéme devised for uniformity, stability and regularity should be suspended or postponed or nullified for any length of time, except the interim between admission to statehood and action by the legislature.” Section 17, article 4, Constitution, provides that:

“The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office. ’ ’

The last clause of said section 17 is asserted as prohibiting any increase or decrease of the said officers’ salaries' during their terms of office. Immediately the inquiry is suggested whether section 17 was intended to prohibit legislation which would change the salary system temporarily provided by the Constitution by which all state, county, and precinct officers were commanded by section 17, article 22, to be paid fixed and definite salaries, to have' effect in the interim between admission to statehood and action by the legislature. In the Patty case, supra, we dearly held that section 17, article 4, is inapplicable to the temporary system of salaries in the particular of officers for whom no compensation was provided by law and the temporary salaries fixed by the board of supervisors. In support of the position, we said further in the Patty case:

“Most of the states of the Union have provisions in their Constitutions similar to ours, prohibiting the increasing or decreasing of the salary of a public officer during his term, and the courts have many times construed the provisions under varying facts and conditions. . . . The language of the Constitutions of Pennsylvania and "West Virginia differ so slightly from our Constitution in the particulars involved in this case that we think their decisions thereon very' persuasive. In County of Crawford v. Nash, 99 Pa. 253, 260, the court said: ‘In Rucker v. Supervisors, 7 W. Va. 661, which arose under section 9 of article 3 of the Constitution of West Virginia, which provides that the compensation of public officers shall not be increased or diminished during their term of office, it was held that this language in the Constitution applies only to such salaries or compensation of public officers as have been definitely fixed or prescribed by law, either by the Constitution of the state, or by some statute, made in pursuance thereof. . . . The obvious meaning of the Constitution is that the General Assembly should regulate (that is, ascertain and establish) the compensation which should be paid to the respective county treasurers, and that thereafter “no law” (that is, no act of assembly) should increase or diminish their respective salaries during the term for which they were elected.’ ”

I understand from these authorities that such constitutional restrictive clauses, effective for the first time, are not self-executing, unless from their context they are plainly self-executing. Section 100(4), 12 Corpus Juris, 727, lays down the following doctrine:

“Constitutional provisions are sometimes so framed as to be inoperative until laws are passed putting them into effect, ■and in this case, it is a general rule that existing statutes in conflict with the principles of such provisions remain in force until the, necessary legislation is had. A provision may be so framed, however, that, while legislation is necessary to put into effect its affirmative principles, it repeals existing statutes inconsistent with it. ”

This court, having approved the rule followed in West Virginia and in Pennsylvania, thereby clearly held that section 17, article 4, Arizona Constitution, is so framed as not to be self-executing with regard to the orders of the board of supervisors temporarily fixing the salaries of county officers for whom no compensation is provided by law, as in the Patty ease. In Yuma County v. Sturges, 15 Ariz. 538, 140 Pac. 504. we expressly held that the statutes of the territory, fixing the compensation of the county treasurer in force at the date of admission to statehood, as affected by section 17 of article 4, as follows: “When the salaries or compensation of public officers have been definitely fixed or prescribed by law, either by the Constitution of the state or by some statute made in pursuance thereof, the salary or compensation so prescribed may not be increased or diminished during the term of the officer” — thereby again recognizing the above general rule of West Virginia, Pennsylvania and Corpus Juris.

The statutes of the territory, prescribing the salaries of certain county officers in force at the date of admission to statehood and remaining in force as laws of the state because they were in harmony with the Constitution, were in no fair sense “statutes made in pursuance” of the Constitution. The orders of the board of supervisors, prescribing salaries for county officers for whom no compensation was provided by law, were necessarily made by constitutional authority expressly delegated to the board. It would require some forced reasoning to consider such orders as orders not made in pursuance to the Constitution. The territorial statutes were adopted by the Constitution, and the orders were the result of constitutional command. The first became laws of the state in a passive manner, while the others became laws of the state by positive action. The first became laws, as they were in force and are expressly declared to remain such laws of the state until altered or repealed by law; that is, the enactment of laws by the legislative power of the state in pursuance to the Constitution — general laws, and not local or special laws. The orders became laws after the Constitution was operative, and they are declared laws “in full force and effect until changed by general law. ’ ’ Section 4, art. 12, supra. We have necessarily construed the expression, “until changed by general law” as applied to the orders of boards of supervisors, as meaning exactly what the words import that a general law, prescribing fixed and definite salaries for county officers whose salaries were fixed by the boards of supervisors in the interim between statehood until legislative action, immediately superseded such orders without the interference of section 17, article 4, Constitution.

Whether the general laws enacted after statehood and in pursuance to the Constitution, altering the territorial laws prescribing county officers’ salaries, .immediately supersede such territorial laws, depends upon whether the use of the expression “until they expire of their own limitation or are altered or repealed by law,” as used in section 2, article 22, Constitution, is more sacredly guarded than the expression “until changed by general law,” as used in section 4, article 12, Constitution, and as construed by this court in the Patty and Sturges cases, supra. Section 2, article 21, Constitution, state of Idaho, contains the following language:

“All laws . . . not repugnant to the Constitution shall remain in force until they expire by their own limitation or be altered or repealed by the Legislature. ’ ’

The supreme court of that state, in Butler v. City of Lewiston, 11 Idaho, 398, 83 Pac. 235, defining the words, “limitation,” “altered,” and “repealed,” said:

“The words ‘limitation,’ ‘altered,’ and ‘repealed,’ I think, apply to all laws, special as well as general, in force at the date of the adoption of the Constitution and not repugnant to any of its provisions. . . . What is the meaning of the word ‘altered’ as used in that section? It certainly means to niake different without destroying identity, to vary without entire change. ’ ’

The words “change” and “alter” may be used, the one for the other, and convey the same meaning in most instances —certainly they may be used interchangeably in, section 4, article 12, and in section 2, article 22. No refinement of reasoning will justify a conclusion that the laws of the territory continued in force as laws of the state until altered or repealed, were intended to remain laws of longer duration after they were altered or repealed, neither would the orders or resolutions of the boards of supervisors remain in force after they were “changed” by general law. The power to alter, in the one instance, and the power to change, in the other, were left exclusively to the discretion of the legislative power of the state, and, when exercised, the time when the alterations or the changes made should become effective was made to depend upon other provisions of the Constitution specially applicable to the matters of putting general lawtf enacted by the legislative power pursuant to the Constitution into effect.

The parties seem to agree that chapter 61, Laws of 1917, altering the county classification statutes of the territory, became operative on the fourteenth day .of March, 1917. Assuming for all purposes of this case, but not deciding, that on such date said chapter became operative for any purpose, it clearly became ^operative for all purposes, including the alteration of said classification statutes; and thereafter the only law in Arizona providing the salaries of county recorder, county treasurer, county attorney, county assessor and county superintendent of schools, of Yavapai county, as well as the salaries of all county officers of the counties of the state, was provided by chapter 61, Laws of 1917, in so far as said chapter purports to provide salaries for the officers named therein and reasonably included within its terms.

Chapter 61, Laws of 1917, was apparently brought about by reason of the decision of this court in Hunt v. Mohave County, 18 Ariz. 480, 162 Pac. 600, filed February 3, 1917, whereby a special statute of the state, providing the salaries of the officers of each separate county of the state, was declared void as violative of the Constitution, prohibiting local or special laws altering general laws. In that case Judge BOSS, speaking for the court, said:

“By reason of these differences in size, population, and wealth of the different counties of the state the labors, burdens, and duties of their officers greatly differ, and therefore, in order to fix their compensation, in proportion to their responsibilities and duties, some kind of a classification must be adopted. ”

I may add that every moderately informed person knew that the wealth of the counties of this state had increased to a point where they all, or nearly all, had become counties of the first class, as classified by the Laws of 1901. That a real necessity existed in justice to the county officers to change the classification of first-class counties so that officers of counties of greater wealth should receive just salaries, as suggested by Judge ROSS, supra, was perfectly apparent. Chapter 61, making the suggested changes, was passed by the legislature 39 days after the opinion in the Mohave county case was filed in this court.

For the reasons stated, I ■am of the opinion that chapter 61, Laws of 1917, did not stand suspended by section 17, article 4, during the said officers ’ terms of office; that the appellants correctly paid county officers salaries in amounts fixed by said chapter 61, Laws 1917, and, as a consequence, the trial court erred in overruling.appellant’s demurrer.

The judgment should be reversed, and the cause remanded, with instructions to sustain the demurrer and dismiss the action.

JOHN WILSON BOSS, J., concurs.