State ex rel. Nedreloe v. Kennard

166 N.W. 514, 38 N.D. 612, 1918 N.D. LEXIS 2

• Court: North Dakota Supreme Court
• Decided: January 24, 1918
• Status: Published

Opinions

Bruce, Cb. J.

Tbis is an appeal from a judgment for a mandamus directing tbe defendant to deliver to tbe plaintiff a warrant for tbe sum of $475 wbicb is claimed to be due as an unpaid portion of tbe salary of tbe plaintiff as sheriff for tbe period between tbe 1st day of June, 1915, and tbe 1st day of January, 1917.

Tbe case involves tbe construction of § 3520 of tbe Compiled Laws of 1913 as amended or rather re-enacted by § 6 of chapter 112 of tbe Laws of 1915, and wbicb originally read as follows: “Tbe salary of tbe sheriff shall be regulated by tbe population in bis county according to tbe last preceding official state or Federal census as follows: provided that no sheriff shall receive more than $1,500 for bis personal services in any one year in counties having a population of less than $5,000 . . . $2,700 in counties having a population of 25,000 and not exceeding 26,000 . . . $3,000 in counties having a population of 28,000 and not exceeding 29,000, etc.”

Section 3514 allows for tbe collection of fees, but these are required to be turned into tbe public treasury, and § 3520 must be construed as automatically fixing tbe salaries according to tbe census, from $1,600 up to $3,500, according to sucb population.

Tbe plaintiff entered into bis office on tbe 1st day of January, 1915. At that time tbe population of Ward county was, according to tbe last census, between 25,000 and 26,000, and under tbe provision of § 3520 tbe salary was automatically fixed at $2,700 a year. Tbe new census was reported to tbe county auditor on June 1, 1915, wbicb showed a population in excess of 28,000, and tbis population would, under tbe provision of § 3520, have entitled tbe plaintiff to a salary of $3,000 a year. Tbe only question to be determined by us is whether tbe increase in salary, from $2,700 to $3,000, took effect immediately upon tbe report of a new census, or at tbe beginning of tbe new year, or not until tbe beginning of tbe new term of office.

We are satisfied that tbe beginning of a new term of office was not necessary. Although tbe office of sheriff is a constitutional office, tbe Constitution also provides that the legislative assembly “shall prescribe the duties and compensation of all county, township, and district officers.” See § 173, N. D. Const.

This, § 3520 of the Compiled Laws of 1913 does. It, however, requires no meeting of the board of county commissioners or of any other body, but provides for the automatic regulation of the salary, according to the last preceding official state or Federal census. We are of the opinion that this section becomes effective as soon as the census is reported. We are satisfied, however, that as the section throughout seems to contemplate an. annual salary, that the increase will in no event begin until the beginning of the new year, and this the trial court held.

Nor do we believe, with counsel for the appellant, that the plaintiff’s right to recover an increase of salary from the beginning of the new year was affected by § 8 of chapter 112 of the Laws of 1915, which repealed § 3520 of the Compiled Laws of 1913. Although, indeed, this prior section was repealed, it was at the same time re-enacted, and, as far as the plaintiff is concerned, in identically the same form as before with the exception that the salary for a population of 28,000 is $2,900 rather than $3,000.

Counsel for appellant, indeed, bases his contention upon but one phrase of the act. Although § 8 of chapter 112 of the Laws of 1915 provides that “the salary of the officers herein enumerated shall be the same during the remainder of the term for which they may have been elected or appointed, as they are respectively receiving at the time this act takes effect,” it also provides that “the provision of this act shall not apply to the present term of officers elected or appointed prior to the taking effect of this act.”

The right to the additional salary was part of the original contract, and not an increase at all, the statute providing that an increase in the population should automatically bring about an increase in the compensation. It is very clear from a perusal of the two acts that not only was no increase in salary effected, but that no change in the salaries of the officers then in office was contemplated.

The judgment of the Distinct Court is affirmed.