Burgess v. Dane County

134 N.W. 841, 148 Wis. 427, 1912 Wisc. LEXIS 79

Opinion

Vinje, J.

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, one providing for a salary in lien of fees and, after its passage, a separate one fixing tbe salary of tbe register of deeds to be elected during tbe ensuing year.

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 struction contended for by plaintiff. But we think the phrase, “to be elected during the ensuing year, to wit, the year 1902,” can be construed to mark the commencement and not the duration of the change; that is, to mean only that the .change is to take effect with the commencement of the term of the register of deeds to be elected in 1902. It appears, from the record that the resolution was passed by the county board at an adjourned session of the annual meeting of 1901 held in January, 1902. That explains why the words “to wit,, the year 1902,” were added after the words of the statute, “the ensuing year.” It became necessary to provide that the change should begin with the term of the register of deeds to be elected in the fall of 1902, which-was not the “ensuing year” when the adjourned session was held. That the county board could lawfully exercise such power at an adjourned meeting was decided in Douglas Co. v. Sommer, 120 Wis. 424, 98 N. W. 249. It is possible that the necessity of making a slight departure from the statutory language was responsible for the phrase in a position rendering it capable of two constructions. However, be that as it may, we conceive it to be no violence to language to say that the board intended the phrase quoted to mark the inception of the adopted change. Such construction harmonizes the resolution and makes it effectuate the purpose it was manifestly intended to subserve,, namely, to provide a salary in lieu of fees for the register of deeds elected in the year 1902 and for all registers of deeds thereafter elected. It is true that where there is no ambiguity or doubt as to the meaning of the language used there is-no. room for construction, and that the court must give effect to the plain intent and language of a writing no matter what the result may be. But when the intent is clear, and the language used is fairly susceptible of effectuating that intent, then it should be construed to do so even if it will bear another' meaning — .especially when such other meaning would render the whole writing nugatory. The question for consideration before the county board was that of changing the method of compensating the register of deeds and his deputies from fees to salaries pursuant to the provisions of sec. 7645, Stats. Presumably the hoard intended to comply with the provisions thereof and to make the change as the statute required. Such presumption must prevail unless the language used is wholly inconsistent therewith. In the case of minor deliberative bodies such as county boards, the language of their resolutions will receive a liberal construction in order to effectuate their evident intent. No technical grammatical interpretation will control. Hark v. Gladwell, 49 Wis. 172, 5 N. W. 323; Wis. Cent. R. Co. v. Ashland Co. 81 Wis. 1, 13, 50 N. W. 937.

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,” was Reid to Re implied though not expressed in tRe act construed. And in Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063, as expressed by Justice Maeshaui, in tRe McGrael Case, “a word expressing an idea, very obscurely, considering its location, was expanded by tRe addition of otRer words, tRe whole tRen transferred to its proper location as a ' qualifying clause, and another clause was transposed to its proper location, so that tRe collection of words wRicR, read literally, was senseless, was made to serve tRe purpose intended.” TRe subject as to tRe extent to wRicR judicial construction may go to carry out tRe evident intent of a legislative act, or tRe resolution of a deliberative body sucR as a county board, Ras been so fully treated in tRe recent cases of State ex rel. McGrael v. Phelps, supra; Neacy v. Milwaukee Co., supra; and State ex rel. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 137 Wis. 80, 117, N. W. 846, that no further discussion thereof is now deemed necessary.

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 language of the statute then under consideration. The section now before us (sec. 1646, Stats.) provides that the county board of any county “may at their annual meeting preceding the election of county officers, by resolution, change the method of compensating the register of deeds, his deputies, clerks and copyists, from fees, now provided by law, to salaries, and shall at the same time fix the amounts of the salaries to be paid the register of deeds to be elected during the ensuing year, his deputies, clerks and copyists, and the number thereof to be appointed by the register of deeds, and paid by the county.” Not only are there no words in the statute suggesting, much less requiring, separate resolutions, but, on the contrary, the language seems to imply that only one resolution should be passed. The statute says the county board may “by resolution” change from fees to salary, and shall at the same time fix the amount of the salaries to be paid. True, this does not necessarily mean that the adoption of the change and the fixing of the salaries must be by one resolution, but it clearly does not say that it must be by two, as did ch. 651, Laws of 1907. In the absence of specific legislative direction it must be held that it was optional with the county board to embody both provisions in one resolution or to vote on them separately, provided both were passed at the same meeting.

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. That sucb a result was not contemplated nor permitted is made evident by a reference to sec. 694, Stats. (1898), wliicb provides:

“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, from filing certain vital statistics, and tbat plaintiff, wbo was re-elected in 1908, was after October 1, 1909, required by tbe provisions of cb. 188, Laws of 1909, to file and index sucb vital statistics. Were plaintiff entitled to fees for sucb work, tbe same would amount to $64. It is claimed tbat, even if plaintiff was on a salary, be should be allowed fees for sucb extra work. Tbe claim is not well taken. Tbe duties germane to a public office may, witbin reasonable limits, be increased without giving tbe incumbent thereof a right to extra compensation. St. Croix Co. v. Webster, 111 Wis. 270, 87 N. W. 302; Barron Co. v. Beckwith, 142 Wis. 519, 124 N. W. 1030. Tbe duties plaintiff was required to perform were sucb as bad for years been performed by registers of deeds, with tbe exception of tbe interval between October 1, 1907, and October 1, 1909. Sec. 7645, Stats., provides: “The salaries of tbe register of deeds, bis deputies, clerks and copyists so paid, shall be in lieu of all fees, per diem and compensation for services rendered by them.” Language as broad and explicit as this leaves no room for argument tbat both salary and fees may be recovered even though tbe services be extra or additional, provided they are germane to tbe duties of tbe office. In this case they were not only germane to tbe office but bad customarily been performed by tbe incumbents thereof.

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.