I concur in the appellate resolution determined by the trial court pleadings. The admission of a characterization of the housing allowance as salary or emolument is dispositive. However, if it were necessary or appropriate to go beyond this admission as the law of the case, I would hold that the statute authorizing periodic housing reimbursement payments for the office of the sheriff does not involve emolument or salary and is constitutional within either defined amounts or upon allowance or discontinuance during the term of the sheriff.
We have before us for this appeal an explicit statute, W.S.18-3-603, which, in addition to providing for responsibilities in subsection (a), provides in subsection (b):
The sheriff shall not be charged rent for any building owned or controlled by the county and occupied by him as a residence. If a residence is not furnished the sheriff by the county, the sheriff may be allowed an amount established annually by the board of county commissioners on or before July 1 of each calendar year. The amount shall be paid monthly and shall not exceed the prevailing rate of the municipality in which the sheriff resides.
At issue, if we were to avoid present disposition based on an admission by the pleadings, is whether the statutory housing allowance can only be granted before the elective term of the office holder commences and then when established, cannot be changed during the four year term. See Wyo. Const. art. 3, § 32 which prohibits increase or diminishment of the salary or emolument after the election and during the term of the office holder. State ex rel. Henderson v. Burdick, State Auditor,4 Wyo. 272, 33 P. 125 (1893). Cf. County Court Judges Ass'n v.Sidi, 752 P.2d 960 (Wyo. 1988).
I find Wyoming precedent to clearly define a difference between the constitutional salary/emolument and reimbursed expense provisions. Taxpayers' League of Carbon County v. McPherson,49 Wyo. 251, 54 P.2d 897 (1936). Per diem allowances and reimbursed housing cost awards should be included in the category of the non-constitutional expense reimbursement and subject to legislative change during the term of office. McPherson,54 P.2d 897.
The significance of the difference in Wyoming law reaches much broader than historical circumstances that frequently at one time, if not normally, sheriffs were provided housing by the county and then later, where no housing was available, they alternatively received a housing reimbursement payment. If reimbursement payments of this nature are constitutionally confined in commencement or change, the Wyoming legislator's per diem becomes anchored also to the constitutional prohibition. This conclusion would particularly reach members of the Laramie County legislative delegation who usually reside at home during the session and incur no *Page 1394 additional housing costs. However, it would also be arguably applicable to the allowed per diem for out-of-town legislators whose room payments and actual expenditures for meals do not exceed the statutory allowance. See W.S. 9-3-102.1 My construction of emolument is to include only "actual pecuniary gain" and not incidental contingent benefit, for example, retirement and per diem. See the explicit and logical review inBrown v. Meyer, 787 S.W.2d 42 (Tex. 1990).
This court should not now adopt the broadly inclusive definition of constitutionally confined salary and emolument which restricts governmental flexibility for budgetary adjustments. It is neither necessary nor appropriate to constitutionally invalidate on this record any provisions for annual change of reimbursement items such as the housing included in W.S. 18-3-603. Since appellant is limited in appeal by the admissions of its pleadings, we need venture no further than this record and certainly not to plumb the murky waters of what are constitutionally restricted salary and emolument payments. Otherwise, in this case, I could easily assess validity to the legislative determination that changes in a housing allowance or a per diem reimbursement do not fall into the two or four year term constitutional straitjacket. See State ex rel. Murane v.Jack, 52 Wyo. 173, 70 P.2d 888 (1937); McPherson, 54 P.2d 897;State ex rel. McPherren v. Carter, 30 Wyo. 22, 215 P. 477 (1923); and Reals, County Treasurer v. Smith, 8 Wyo. 159,56 P. 690 (1898). Cf. County Court Judges Ass'n, 752 P.2d 960, Urbigkit, J., specially concurring; and Burdick, State Auditor, 33 P. 125.