(Dissenting). — The question involved is whether the court’s action in overruling the demurrer to com*125plaint and entering judgment for plaintiffs-appellees, was correct. The object of the suit was to enjoin the defendants from paying certain county officers of Yavapai county, elected for the term 1917-18, salaries under the Classification and Salary Act of March 14, 1917, being chapter 61, Laws of 1917, for the reason that said act was enacted subsequent to. the beginning of the term of said officers and increased their salaries during their term of office. Their predecessors had been paid salaries under the Salary Act of 1912 (Civil Code of 1913, pars. 3226-3241) and they believed when they were elected that they would receive the same salaries as their predecessors, and were, in fact, paid those salaries for the month'of January, 1917. However, on February 3, 1917, in Hunt v. Mohave County, 18 Ariz. 480, 162 Pac. 600, this court held the Salary Act of 1912 unconstitutional. Until other valid legislation fixing the salaries could be had, county officers corresponding to those who had been paid salaries before statehood were required to look, for their salaries, to chapter 2, title 26, Revised Statutes of 1901, and amendments thereto, and those county officers who, under the territorial law, were paid fees and not salaries, were to receive such salaries as the board of supervisors had or would fix for them. This difference arises by force of the Constitution. Before statehood, some of the county officers were compensated in fees, and -others received salaries. The Constitution abolished the fee system, and provided that all state and county officers should be paid fixed and definite salaries. Section 17, art. 22. By section 4, article 12, boards' of supervisors, were empowered to fix salaries of county officers for whom no compensation is provided by law, such salaries to remain in force until changed by general law. Patty v. County of Greenlee, 14 Ariz. 422, 130 Pac. 757.
After the state was admitted to the Union, bounty officers who had been paid salaries before statehood under chapter 2, title 26, Revised Statutes of 1901, continued to draw salaries under the provisions of said law of 1901, and those who had been compensated by fees before statehood received the salaries fixed by the boards of supervisors, and this continued until the act of 1912 was given a place among our laws. "When the act of 1912 found a place among our laws, county officers were paid the salaries therein provided, except those then in office under salaries fixed by the laws of 1901 and *126amendments thereto. These last, being inhibited from accepting a raise of' salary and protected against the lowering of salary during the term for which they were elected, continued to draw the salaries fixed by the territorial statute during the years 1912, 1913 and 1914. Hunt v. Mohave County, supra; County of Yuma v. Sturges, 15 Ariz. 538, 140 Pac. 504.
The question involved in the Hunt case was as to whether the county assessor of Mohave county, whose term was 1917 .and 1918, should be paid the salary fixed by chapter 2, title 26, supra, it being the contention of Hunt, the assessor, that the act of 1912 was unconstitutional, and that, therefore, his salary was fixed by the territorial law. This view was adopted by this court. It has been decided, therefore, by this court that the incumbents of county offices (of whom Hunt was one) before the act of March 4, 1917, was passed, should receive the salaries fixed by chapter 2, title 26, supra.
The Classification and Salary Act of 1917 increased the salaries of county recorder, county treasurer, county attorney, county assessor and superintendent of public schools, over the salaries allowed to these same officers under the law when they entered upon their duties as such officers. Section 17, article 4, of the Constitution provides:
“The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of -any public officer be increased or diminished during his term of office.”
If the board of supervisors are permitted to pay the salaries to the named officers fixed by the law of 1917, inasmuch as there was a salary already attached to the office occupied by them, to wit, the salaries fixed by chapter 2, title 26, supra, it would result in -an increase of their compensation, and be a clear violation of the terms of the constitutional provision just quoted. If the construction already given this provision of the Constitution by this court is allowed to stand, and I think it is a correct exposition of the law, the action of the board of supervisors, in paying and threatening to continue to pay salaries under the law of 1917 to the named officers, is unauthorized by law. In the Sturges case, supra, 15 Ariz. 540, 140 Pac. 504, this court said:
“It is at once seen that the constitutional restriction is an abridgment of the law-making power to either increase or *127diminish that compensation of the officer during his term, and which was prescribed for and as an incident to the office at the beginning of his term; that during his term of office the public officer enjoys exemption from legislative interference and control over the amount of his compensation, and at the same time has a curb put upon his activity in the direction of an increase of compensation, whether such activity be worthy or pernicious. ...”
The appellants contend that, since the Salary Act of 1912 was declared unconstitutional, the only lawful expression of fhe legislature as to salaries of officers is contained in the salary law of 1917 and that, inasmuch as under the Constitution the power of fixing salaries is given to the legislature, until that power is exercised and the salaries permanently fixed, there has been no raising or lowering of salaries within the meaning of the Constitution, and they cite, as sustaining the proposition, the following cases: Stone v. Pryor, 103 Ky. 645, 45 S. W. 1053, 1136; Purcell v. Parks, 82 Ill. 346; State v. McDowell, 19 Neb. 442, 27 N. W. 433; Rucker v. Supervisors, 7 W. Va. 661.
I have examined the citations, and do not see that they sustain the proposition advanced by appellants. The McDowell case lays down this proposition of law: AYhere at the time an officer is elected to an office, there is no salary fixed and attached to the office because the constituted authority to fix the salary has failed to act, it is not a violation of the constitutional inhibition against increasing or decreasing salaries during fhe officer’s term if the properly constituted authority, after the beginning of his term, fixes his salary.
The Purcell and Rucker cases announce the same rule, and this court, in Patty v. Greenlee County, supra, citing Rucker v. Supervisors, held that the salary fixed by the board of supervisors for the sheriff of said county was only temporary and was superseded by a general law fixing salary passed during the term of the sheriff.
I have carefully read the Kentucky case, and am not particularly impressed with the -reasoning. I think the dissenting opinion by Justice WADDELL more correctly states the law than the prevailing opinion.
It is also contended by appellants that county officers of the state are not the same as they were under the territory, even though of the same name and charged with the same *128functions and duties, and, that being so, they say, the salary law of 1901 as amended has no application to these offices under statehood. They rely upon section 3, article 12, of the Constitution, which names the county officers subject to change by law, and states that they “are hereby created.” .The county officers named correspond with those under the territory, except the public prosecutor of the county is called “county attorney” instead of “district attorney,” as formerly. However, the functions and duties of these officers under the riew arrangement are the same, or practically thó same, as under the old. Section 6 of article 22 provides:
“All territorial, district, county, and precinct officers who may be in office at the time of the admission of the state into the Union shall hold their respective offices until their' successors shall have qualified. ...”
In addition to the officers being the same in name and function, this provision of the Constitution, by direct and express language, extended the term of territorial officers over into and made them state officers. Besides, in some cases decided by this court, county officers of the state have been recognized as successors to territorial county officers, and territorial laws have been carried forward and enforced as state laws under the provisions of section 2, article 22, of the Constitution, wherein it is said:
“All laws of the territory . . . now in force, not repugnant to this Constitution, shall remain in force as laws of the state of Arizona until they expire by their own limitations or are altered or repealed by law. ...”
That is especially true of the fee and salary law as contained in chapter 2, title 26, Revised Statutes of 1901. County of Yuma v. Sturges, supra; Hunt v. County of Mohave, supra; Phillips v. County of Graham, 17 Ariz. 208, 149 Pac. 755.
The contention is also made that, inasmuch as the act of 1917 was passed with the emergency clause, it was a legislative construction of the provisions of the Constitution affecting county officers and their salaries, and that this court may, with .propriety, adopt that construction as its own. This rule of construction is applied, as I understand it, only when the subject matter is involved in doubt, as when either construction contended for might be adopted without doing violence to the language employed. But if the language used *129sets forth clearly the meaning intended, then there is no room for construction either by the court or legislature, and neither may act lawfully out of the bounds and limits as fixed by the Constitution.
The case cited to sustain appellants on this proposition is State ex rel. Wells v. Tingey, 24 Utah, 225, 67 Pac. 33, wherein it was held, under the peculiar wording of their Constitution, that the salary of the Governor of Utah could be increased from $2,000 to $4,000 during his incumbency without violating the-constitutional inhibitions against increasing salaries. Section 20, article 7, of the Utah Constitution, in addition to the provision inhibiting an increase or decrease of an officer’s salary during his incumbency, contains this provision:
“The compensation of the officers provided for by this article, until otherwise provided by law, is fixed as follows: Governor, two thousand dollars per annum,” etc.
The court took the view that the expression “until otherwise provided by law” means statutory law, and that the legislature could lawfully change the salary attached by the Constitution to the office of Governor to take effect during that officer’s term, and that the salary fixed by the Constitution was only intended to stand until the legislative power to regulate salaries was exercised.
We have no such constitutional provision affecting salaries of county officers. Section 4, article 12, reads:
“The board of supervisors of each county is hereby empowered to fix salaries for all county and precinct officers within such county for whom no compensation is provided by law, and the salaries so fixed shall remain in full force and effect until changed by general law. ’ ’
We have held that salaries fixed by boards of supervisors under this provision may be changed by general law during the incumbency of the officer. Impliedly, if not directly, it has also been decided that the officers whose salaries are here in controversy are officers “for whom compensation was provided by law,” to wit, the laws of 1901 and amendments thereto. See Arizona cases cited supra.
There is no similarity between the constitutional provisions construed in the Tingey ease and the provisions of our organic law, especially as they affect county officers and their compensation. The reasoning of that case, then, cannot assist *130us in arriving at a correct conclusion in the matter, before us.
If the Classification and Salary Act of 1917 be held to have taken effect in all respects upon the date of its passage and approval, it would repeal' the salary law of 1901 and amendments thereto, and, since it would increase the compensation of the following officers during their term of office, to wit, county recorder, county treasurer, county attorney, county assessor and county superintendent of schools, it would, to that extent, be unconstitutional and void and, besides, leave them without any compensation whatever. I think the better vipw to take of the act of 1917 is that the legislature intended it to be effective at once in cases where no compensation had been provided by law, such as sheriff, county clerk and deputy county officers and clerks, and that it should be postponed as to those public officers who are already provided compensation by some provision of law. This construction will preserve the law of 1917 in its integrity and at the same time secure to the county officers named compensation under the Laws of 19Ó1 which it evidently was not the intention to repeal until other salaries could be provided by law without impinging the constitutional provision against increasing or diminishing; the compensation of a public officer during his term of office. •
I have thus far considered- the reasons contended for by appellants as to why the named officers should be paid salaries under chapter 61, Laws of 1917, and, to' my satisfaction at least, shown that to do so is a plain violation of the constitutional prohibition against increasing or decreasing compensation of a public officer during his term of office.
The opinion of the Chief Justice is an admission that the compensation it allows the named officers is an increase over the salary attached to their offices at the time of their election and induction into office. It concedes that these officers were properly and legally paid their salaries as provided in chapter 2, title 26, Revised Statutes of 1901, and amendments thereto, and says:
“These laws were not repugnant to the Constitution, but they were in harmony with the policy declaring for a system of compensating officers by fixed and definite salaries.”
Here, then, is the Constitution itself, according to the majority opinion, providing compensation for such officers by carrying forward the territorial salary law and in direct *131terms making it applicable to tbe same officers under statehood. In other words, the Constitution, in effect, said: The county recorder, treasurer, attorney, assessor and superintendent of schools, under state organization, shall receive the same salaries they received under territorial organization, and those salaries shall not be increased or decreased during their term of office. If the Constitution could provide salaries in that manner, and of course it could, it could likewise forbid any changes therein during the term of office. The constitutional inhibition against increasing or decreasing salaries in general, applying with equal force and propriety to salaries fixed by the Constitution by the adoption of territorial salaries, as it does to legislation fixing salaries pursuant to the Constitution. Such a construction would not disturb nor contravene the evident policy found in the fundamental law of doing away with fees and compensating officers by fixed and definite salaries, as the majority would have one think. It would sustain, rather than contravene, the policy of fixed and definite salaries.
The citation of Patty v. Greenlee County as authority for the ruling in this ease is about as far-fetched as one could imagine. The question in that ease was as to whether the legislature could pass a general law changing the salary of the sheriff of Greenlee county during his term of office, his salary having been fixed by the board of supervisors under section 4, article 12, of the Constitution, wherein the board was empowered to fix the salary of certain officers, among others, sheriffs, which “salaries so fixed shall remain in full force and effect until changed by general law.” This language plainly implies that the legislature may change the salary fixed by the board of supervisors at any time, and the Patty case, passing upon the contention of the sheriff of Greenlee county that his salary could not be decreased during his term of office, gave effect to the very plain language of the Constitution just quoted and held that a salary fixed by general legislation passed during the term of the sheriff’s office took the place of the salary fixed by the board of supervisors. The provision of the Constitution that empowers the board of supervisors to fix the compensation of certain officers who had theretofore been compensated in fees, also limits the time such salary shall be paid to the enactment of general legislation on that subject. The very fact that the legisla*132ture is given power to change official compensation in certain instances would seem, according to a well-known rule of construction, to prohibit a change in any case not falling within the exceptions. Other cases in which the legislature is empowered to change the compensation of an officer during his term of office are expressly provided for by the Constitution itself. See section 14, article 6, wherein it is provided that the judges of the supreme court shall appoint a reporter for the decisions of that court and fix his salary "until such salary shall be determined by law,” Also section 17, article 6, in which the judges of the supreme court are authorized to appoint a clerk of that court and fix his salary "until such salary shall be determined by law. ’ ’ Also section 18, in which it is provided that the board of supervisors shall 'fix the salary of the clerk of the superior court "until such salary shall be fixed by law. ’ ’ But nowhere is it provided, either directly or by implication for that matter, that territorial compensation, adopted by the Constitution as the compensation to be paid the same officers after statehood, could be increased or diminished by legislative act or otherwise, during the officers ’ terms.
The observation quoted from the Patty case by the majority, to the effect that the general scheme of uniformity of salaries provided in the Constitution could not be defeated or postponed by allowing the salaries fixed by the boards of supervisors to be paid officers after the legislature had acted, had no reference whatever to salaries fixed by the Constitution, either by adoption or by direct terms. The framers, of the Constitution knew, with 14 different boards of supervisors acting in that many counties, all independent of each other, there could be no uniformity of salary, and it was therefore provided that the compensation fixed by the boards should last only so long as there Avas a failure of legislative action or until changed by general law.
The majority opinion seems to concede that compensation "definitely fixed or prescribed by law, either by the Constitution of the state, or by some statute made in pursuance thereof,” cannot be changed during the term of office, and quotes from the Sucker ease to that effect.
My position is — and it seems unassailable — that when the state Constitution adopted the salary act of the territory for the named officers under statehood, the compensation of such *133officers was definitely fixed and prescribed by the Constitution of the state. What was held in the Rucker case was that compensation of an officer fixed by the board of supervisors might be changed by legislation during the officer’s term, the holding of this court in the Patty case.
The .Sturges case, while cited as sustaining the opinion of the Chief Justice, is as directly opposed to his conclusion as it is possible. It announces the universal rule, so far as 1 know, that the compensation of an officer may not be increased or decreased during his term as against a constitutional prohibition like ours, providing that compensation had been fixed by the Constitution or a law in pursuance thereof. The salary of these officers was fixed by the Constitution when it adopted chapter 2, title 26, being the salary act of the territory. The Sturges ease not only fails to support the majority opinion, but in direct terms holds to the contrary. Sturges was inducted into office February 14, 1912, and his term expired December 31, 1914. The controversy was over his compensation for the month of September, 1913. One of the contentions in the case was that Sturges’ compensation was fixed by chapter 93, Laws of 1912. Of this contention we said:
“This act is not applicable to the appellee, for the reason that such application is prohibited by section 17, article 4, of the Constitution, which forbids the increase or diminution of the compensation of any public officer during his term of office. ’ ’
It was decided that appellee, Sturges, should receive his compensation under chapter 2, tit. 26, Laws of 1901. At the time the decision in the Sturges case was written, the constitutionality of chapter 93, Laws of 1912, had not been questioned, and the decision proceeded upon the theory that that act was constitutional, and that to allow the salaries it provided would be in violation of section 17, article 4, supra. The exact question we have before us, decided diametrically opposed to the majority opinion, yet cited to sustain it.
My apology for taking so much space to state my views in this case is that a great number of other cases pending in this court are disposed of by this opinion. Besides, of course, it opens the door to those who have accepted the salaries provided for by chapter 2, title 26, of the Laws of 1901, or who have accepted salaries under later provisions *134of the law, to make claim for additional sums or the increase provided by chapter 61, Laws of 1917.
Authorities discussing the question of change of salary of deputy or other subordinate, as a violation of constitutional provision against change of salary of public officer during his term, are collated in a note in 37 A R. A. (N. S.) 388.