State ex rel. Donyes v. Board of Commissioners

ON MOTION FOR REHEARING.

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Upon this motion for a rehearing the learned attorney general insists that the opinion heretofore delivered fails to note or consider a question which, although not discussed at the bar, is now asserted to bé of vital importance. The point now earnestly pressed is that, when the plaintiff was elected, the ordinary duties of his office consisted of those imposed by the act of 1897 and by the Political Code; that at the time of his election and induction into office he was required to perform the duties enjoined, and was entitled to compensation prescribed by the act of 1897; that, although the act of 1897 imposed upon the surveyor then in office new and additional duties, and allowed compensation for their performance, yet the act did not have such effect upon the plaintiff, he having *256been elected while the act of 1897, was operative; and that, therefore, the act of 1899, in so far as it purports to repeal those portions of the act of 1897 imposing duties and allowing compensation for them, is, as to the plaintiff, in conflict with the constitutional prohibition against any law increasing or diminishing the salary or emoluments of a public officer after his election. It is contended that in the former opinion the Court erroneously applied to the plaintiff the rule applicable to a surveyor whose compensated duties might, after his ejection, have been augmented by the act of 1897, and then diminished during the same term of office by an act similar to the one of 1899. It is conceded that the act of 1897, in so far as it attached to the office duties not, at the time of its passage, pertaining to the office, and allowed compensation for their performance, was not repugnant to Section 31 of Article V of the Constitution; the concession is also made that, if the act of 1899, which repealed the act of 1897, had gone into effect while the surveyor whose duties were enlarged by the repealed acts was still serving his term, it would not be in conflict with the constitutional provision invoked. Counsel argue that it is within the authority of the legislative assembly to impose new duties upon the surveyor after his election, and fix a compensation therefor, and that it may, without violating the constitutional limitation in question, relieve the surveyor still remaining in office from the discharge of duties imposed, and deprive him of the compensation allowed, by the former statute. Counsel advance the view that the legislative assembly, after adding duties and providing compensation for them affecting the surveyor then m office, may not take away such duties and attendant emoluments from a subsequent surveyor, unless it be done before the election of such successor, — in other words, that the surveyor is entitled to discharge the duties and receive the fees which are prescribed and allowed at the time of his election, and that a statute purporting to curtail such duties, or to relieve him of some of them, is a law diminishing his emolument after his election. We are unable, to approve of the distinction attempted to be *257drawn. • The office of county surveyor was created by the Constitution, but his duties and emoluments are matters entirely within legislative control, subject to the prohibition of the fundamental law against the increasing or diminishing of his salary or emolument after his election. The legislative assembly may, from time to time, increase or lessen the duties required to be performed by the officer; it may allow compensation for the added duties; it may also lessen the duties, and deprive him of the emoluments attendant upon the performance of the duties of which he is relieved. Of course, if at the time of his election the statute prescribed a certain salary, designed to cover all services that the officer as such might perform, then it is not within the competency of the legislative assembly to increase such salary nor to diminish it while the obligation still rests upon the officer to perform all or any of the services enjoined upon him at the time of his election. Where, however, the statute in force at the time the surveyor was elected exacted from him the discharge of certain duties for which certain fees were allowed, — as in the ease at bar, —the legislative assembly may at any time relieve him of the duties, and deprive him of the compensation allowed; for it is not the intention of the Constitution to prohibit a lessening of the duties of such officer as the county surveyor after his election, even though the effect be to curtail or lessen his total income. . Where such officer is paid by fees or a per diem compensation measured by the services performed and the time employed, his emoluments are not, within the meaning of Section 31 of Article Y. of the Constitution, diminished by a statute, taking effect after his election, Avhich relieves him of the obligation to perform the duties resting upon him, and destroys the compensation which had theretofore been prescribed for their discharge. The supreme court of Kentucky, in Purnell et al. v. Mann et al., — decided on December 10, 1898, and reported in 48 S. W. 407, — had before it a question identical with the one presented in this case. A statute was enacted in March, 1898, which took away from the county judges, clerks and sheriffs in office at the time *258it was passed certain compensated duties, which, under the laws in force at the time of their election, they were required to discharge; and it was contended that the statute was violative of a constitutional provision similar to Section 31 of Article Y, for the reason that in depriving those officers of the fees allowed at the time of their election for the performance of the duties then required of them the statute changed their compensation after their election. The court say: “The act does not, as argued, violate section 161 of the constitution, which forbids the compensation of any city, county, town or municipal officer being changed during his term of office; for the duties imposed by the general election law upon the various county officers do not, except in virtue of a repealable statute, pertain at all to several offices; and, of course, when they are, by an amendatory statute, relieved of these duties, their per diem pay ceases without at all involving a change of compensation in the meaning of section 161.” Nor is the case of Bright v. Stone, decided by the same court, and reported in 43 S. W. 207, in conflict with the Purnell case, for in the former case the point decided was, as we understand it, that a statute enacted during the term of office of a circuit clerk, by which he was allowed fees for performing certain services required of him when he was elected, but not then compensated, was repugnant to the prohibition of the Constitution.

We think a careful reading of the original opinion (the language of which is, perhaps, not as clear as might be desired) will disclose that the decision therein announced is based upon the doctrines here referred to; and that it was not intended to declare that the new duties imposed by the act of 1897 were new, additional, or extraordinary in respect of the plaintiff, who was elected in 1898. Comments upon the fact that the office of road supervisor is a legislative, not constitutional, creation, were indulged in for the purpose of illustrating the power of the legislative assembly to abolish that office, and transfer its duties to the county surveyor.

The motion for a rehearing is denied.