Henderson v. County of Boulder

51 Colo. 364

• Court: Supreme Court of Colorado
• Decided: September 15, 1911
• Docket: No. 6664
• Status: Published

Opinion

Mr. Justice Gabbert

delivered the opinion of the court:

The constitution of the state provides as follows:

“Except as otherwise provided -in this constitution, no law shall extend the term of any public officer . or increase or diminish his salary or emoluments after his election or appointment.” .Art. V, § 30.

In support of the contention that the judgment of the district court was erroneous, it is urged that the constitutional provision above quoted does not apply to county officers; that it does not affect officers whose salaries are payable out of the fees of the office; that it does not prohibit the allowance of clerk- hire where none had been formerly allowed; and that the constitutional provision referred to is not violated by a change of classification so as to allow clerk hire. Every one elected to discharge a public duty who receives a compensation for the same is a public officer. The duties which a county judge is required to perform are certainly public in their nature, and he is, therefore, a public officer within the meaning of the constitution. His salary or compensation per annum is fixed by statute. True, it is payable only out of the fees of the office allowed the judge and clerk of the county court, but it is, nevertheless, a salary, for he must account to the county for such fees. The question, then, to determine, is, does the constitutional provision inhibiting an increase in the salary of a public officer after his election prevent plaintiff in error from receiving the compensation for clerk hire allowed a county judge in counties of the second class?

We think it is clear that it does. When Judge Henderson was elected the statute fixing his compensation specially provided that his salary should be the sum of $3,000, and no more, out of which he was to pay his own clerk hire. In order that this might be clear and not open to question, the act fixing the salary of county judges in counties of the third class provided explicitly that the compensation of the clerk of the county court in counties of that class should be a charge upon the county judge, and paid out of his salary, and not otherwise. The act of 1907, by making Boulder county a county of the second class, allows the county judge of that county an additional compensation for clerk hire in the sum of $1200. That this increases the salary or compensation of the county judge of Boulder county appears to be too plain to admit of argument. The constitution inhibits such increase for any part of the term for which plaintiff in error wgs elected, consequently he is not entitled to any allowance for clerk hire.

The judgment of the district court is affirmed.

Judgment affirmed.

Decision en bane.

Chief Justice Campbell and Mr. Justice Bailey not participating.