Taylor v. Board of Commissioners

70 P. 835, 11 Wyo. 106, 1902 Wyo. LEXIS 28

• Court: Wyoming Supreme Court
• Decided: December 9, 1902
• Status: Published

Opinion

Potter, Chiee Justice.

The plaintiff brought this suit to recover from the County of Big Horn the sum of $604.62, the same being claimed to be due him for services rendered by him as clerk of the commissioners appointed by the Governor, to organize said county. The sum of $593-33 is claimed on account of services/and the sum of $11.29 for money paid out in the, purchase of certain election supplies, and supplies required in the performance of his duties. The charge made for services is based upon the salary provided by law for County Clerks of a county of the class within which Big 'Horn County belonged.

It i? alleged in the petition that on the 6th day of July, 1896, the plaintiff was duly appointed as clerk aforesaid, and that he served in that capacity for a period of five months and twenty-eight days, until and including the 4th day of January, 1897. The answer contains a general denial, and as a separate defense an averment'that there is no law giving the Board of County Commissioners of the county the power to allow or pay the demand. A stipulation as to the facts, and submitting the cause, was entered into as follows:

“1. That prior to July 6th, 1896, the Governor of the State of Wyoming appointed A. L. Coleman, S. A. Lampman and Lou Blakesley, commissioners to organize the County of Big Horn in the State of Wyoming under the provisions of Chapter 59, Session Laws of the said State of 1895, and said tEreé named commissioners qualified as such, and on July 7th appointed plaintiff as their clerk, as provided by Section 1007, Revised Statutes of Wyoming, who duly qualified as such and served in that capacity from said 7th day of July, 1896, to January 4th, 1897, and in doing so performed all the duties required by law.

“The plaintiff during the time named, namely, between July 7th, 1896, and January 4th, 1897, paid express on election supplies shipped to Billings, $2; postage at various times, as follows, $.25, $.97, $.50, $.70, $.30, $1.00; total, $3.72; 6 locks and one dozen butts for ballot boxes, $2.10; paper, envelopes and postage, $1.18¡'paid mail carrier for delivery of election supplies, $.75; election supplies purchased of Johnson County, $1.10; express on election supplies, $.45, total $11.30, all of which were incurred in and about the business of his said office.

“2. That on January 3, 1897, after the organization of Big Horn County was completed, the plaintiff filed a bill to the Board of County Commissioners of Big Horn County for compensation for the services and expenditures as abóve stated, aggregating the sum of $604.62; that the said board disallowed said claim, and the plaintiff has never received any compensation whatever for his claims. It is stipulated that the case is submitted on the above and foregoing facts and the pleadings in the case. It is understood, however, that in case further testimony be required in furtherance of justice on any ruling of the court on trial, the above stipulation shall not prevent the introduction of such testimony as may be proper.”

Thereupon the district court reserved the following questions for the decision of this court:

1. Is a clerk appointed under the provisions of Section 1007 of the Revised Statutes of 1899, who duly qualifies and serves as provided by the terms of Chapter 3, Title 16, Division 1, Revised Statutes of 1899, entitled to any compensation from the county for his services ?

2. If so, is he entitled to receive the salary provided by law for County Clerks?

3. If entitled to any compensation, what is the rule governing the measure of the same?

4. Is such officer entitled to recover for supplies furnished and expenses incurred in and about the discharge of the duties of his office?

5. When an officer presents a bill to the county for salary, per diem and mileage, and the Board of County Commissioners disallows the claim for salary, but allows the amount claimed for per diem and mileage, which the officer received and accepts, is such officer thereby precluded and estopped from bringing suit for his salary?

The fifth question is not applicable to the case brought by plaintiff, Taylor, and is evidently included as bearing upon another case brought by S. A. Lampman to recover salary, as one of the commissioners appointed and serving in organizing the said county; 'his claim being for salary based upon the amount of salary provided by law for County Commissioners of duly organized counties. It appears that the Lampman case is held awaiting a decision in the Taylor case; and the papers have been sent to this court, but no separate reservation of questions was made in the case. Counsel, however, have treated the matter as though both cases are here upon the questions reserved in the Taylor case; and as the question as to the right to salary is similar in both cases, we perceive no great impropriety in discussing it as applicable to both, especially since the order' entered in the Lampman case in the trial court recites that “certain questions involved herein shall be reserved to the Supreme Court, and judgment rendered in accordance with the answers received from said Supreme Court to said questions, which said questions shall be reserved and certified in said case of Taylor v. the Board of County Commissioners.”

It is well settled that the relation between an officer and the public is not a creature of contract. So his right to compensation for services performed is not the creature of contract. If it exists at all, it is the creation of law. Unless, therefore, compensation is by law attached to the office, none can be recovered. The services are, in such cases, deemed to be gratuitous, and the officer cannot recover anything on the ground of an implied contract to pay what the services are reasonably worth. (Mechem on Pub. Off., 855-6; Throop on Pub. Off., 446-7; Crofut v. Brandt, 58 N. Y., 106; 17 Am. Rep., 213; Haswell v. Mayor, &c, 81 N. Y., 255; Locke v. Central City, 4 Colo., 65; Hadley v. Supervisors, 28 How. Prac., 22; Boyden v. Brookline, 8 Vt., 284; Axen v. Meserve (Neb.), 78 N. W., 721; State v. Brewer, 59 Ala., 130.)

Commissioners appointed by the Governor to organize a new county and their clerk are public officers. The commissioners are appointed by the Governor by virtue of a statute. The clerk is appointed by the commissioners by virtue of the same statute. They are required to qualify by taking an oath, and their positions are designated as offic'es by the statute. The duties enjoined are public duties. (Mechem on Pub. Off., 1-9.) The statute providing for their appointment and prescribing their duties fails to make provision for their compensation; and there is no other statutory authority for compensating them for their services unless they are held to be respectively County Commissioners and County Clerk. The contention on behalf of the plaintiff in each case is that they were county officials, and as such entitled to the salary and compensation fixed by statute for those offices. But we think they were not respectively a County Commissioner and County Clerk. The offices they held are not so referred to or designated in, the statute. Neither does the statute clothe commissioners to organize a county with many of the powers of County Commissioners — such as to erect and keep in repair county buildings; to allow accounts chargeable against the county, and issue county orders therefor; to levy taxes, lay out roads, etc. They are indeed designated as commissioners to organize the county. There was no county organization until their duties had all been fulfilled. Their duties are confined to meet and appoint a clerk, and designate a place “for the transaction of their official duties;” and to “perform all and singular the duties preparatory to, respecting or incident to” the holding of an election in.the county at the next general election, held in the State, which are imposed by law upon County Commissioners, and to canvass the returns of such election; at which election the county and precinct officers provided by law are required to be chosen; and the electors of the county cast their ballots for Congressman and members of the State Senate and House of Representatives. Upon the clerk appointed by such commissioners is imposed the duty of performing the duties in respect to such election as usually falls upon County Clerks. The unorganized county, for the purpose of such election, is declared to be segregated from the original county or counties from which the same is taken; and it is to become an organized county on the first Monday of January following the election, or as soon thereafter as a majority of the County Commissioners-elect shall have qualified. (R. S., Secs. 1002-1012.) It is true that the are required by the terms of the statute not only to take an oath to faithfully and impartially discharge the duties of their office as prescribed by law, but also to take the oath required by law to be taken by County Commissioners and County Clerks, respectively. But the oath to be taken by a County Commissioner and a County Clerk is that required by the constitution of all officers, which does not differ materially from the oath specially required of the officers in question, nor materially add to it, except that it declares in effect that the affiant has not knowingly violated the election laws of the State. We are unable to discover in the provision for taking the oath required of County Commissioners and County Clerk, respectively, anything that constitutes them such officers. Indeed, the requirement as to County Commissioners is that they shall take the same oath as is required by law of other county officers; and it would hardly be contended that such requirement entitled them to claim they were occupying any office other than the one to which they had been elected or appointed.

These officers were appointed prior to July 6, 1896, and took the oath of office on that date. The election occurred in November following. It might occur that such officers would be appointed a year or more anterior to an election, in which case they would have little to do until the time for the election approached; but if the contention here made is sound, they would be entitled to full salary during the interim.

The failure to provide a compensation for their services is doubtless the result of an oversight on the part of the Legislature; but we cannot usurp its prerogatives, and fix a salary for public officials where it has neglected to do so. It is possible that it was not deemed advisable or necessary to comp'ensate these officers. It is not the only instance of the required performance of public duty without pay. The case of school trustees is a notable illustration. They occupy an important position of trust and responsibility, but their services are rendered gratuitously.

As there is no statute providing for compensation for the services of those officers, they are not entitled to any. But in respect to expenditures for supplies required in the discharge of their duties the rule is different. The provision for holding an election necessarily implies the purchase of election supplies, ,• and the equipment required by law for conducting a valid election. They are a public charge. Though unorganized, the county had an existence as an unorganized county, and for election purposes was segregated from'the parent counties. It became the duty of the officers to obtain the requisite books and other paraphernalia to carry on the election, and, by implication, they were authorized to procure them on the credit of the county, at a reasonable expense. Such things as books, for the clerk’s record, stationery and postage stamps for correspondence, were clearly necessary; and their procurement was within the authority of the commissioners and clerk; and their reasonable expenses incurred in all these and like matters should be refunded to them by the county.

The same rule may be held to apply, and we think it should, to the allowance of actual and proper expenses of the commissioners and clerk in going to and from their meetings and attending the same.

The courts ought, no doubt, to take judicial knowledge of the fact that, at the time Big Horn County was organized, it was without railroad communication, and there were no large towns within its borders. It may be that these officers came from different places and were obliged to journey a long distance, at some expense, for the purpose of meeting and discharging their duties. The clerk possibly was obliged to travel to different sections of the county to distribute election supplies; and this could hardly have been accomplished without some expense.

We are not prepared to say that in arriving at and equalizing such expenses, the county board, or the court, if called upon to adjust the matter., would not be justified irt doing so upon the basis of a reasonable mileage and per diem allowance. In the case of Commissioner Lampman, the board allowed and paid him a certain sum on that basis; and we are of the opinion that they were authorized to do so. The allowances were made, as we understand, at the rate at which mileage and per diem is allowed by statute to County Commissioners. His suit now brought is for the proportionate amount of the annual salary fixed by law for the office of County Commissioner. He is not entitled to that, and should not be permitted to recover it.

It must be understood that we do not admit any right in the officers to a per diem allowance as compensation for services. Our view is that in a county situated as Big Horn County was, it is possible that the most equitable and just method of reimbursement for outlay in the way of expenses while prosecuting public business, would be a stated allowance for expenses for each day employed, and a reasonable rate of mileage.

As indicated by what has been said, the question numbered i must be answered in the negative; and questions 2 and 3 require no answer, being disposed of by the negative answer to the first question. The fourth question,, relating to expenses incurred, is answered in the affirmative. The fifth question need not be considered, and we do not decide the inquiry it presents, for the reason that, under our decision, it is not applicable to any fact in the case.

Corn, J., and Knight, J., concur.