Fort Smith District v. Eberle

This appeal comes from a judgment of allowance by the circuit court on appeal from the county court, of a claim against the county by appellee, as compensation for services as Local Registrar of Vital Statistics.

A certificate of the State Registrar to the County Treasurer, of the amount due was filed with the affidavit required by the statute to authenticate claims against the county, made by appellee, and upon the claim being disallowed, an appeal was taken to the circuit court.

It is conceded that appellee rendered the services charged for under the provisions of the law creating the State Board of Health and Bureau of Vital Statistics, Act 96 of Acts 1913, p. 352.

It is contended that said law is unconstitutional as creating permanent offices, contrary to the provisions of the constitution and in providing for payment out of the county treasury for the services of the local registrar, which is claimed to be a district and State office and in the method of drawing the money from the county treasury.

(1) The majority is of opinion that the first contention has been decided adversely in the ease of Greer v. Merchants and Mechanics Bank, 114 Ark. 217, by which this ease is ruled. A like contention was made there that the act creating the State Bank Department for a period of 12 years was unconstitutional. The court held otherwise and said of these provisions of the Constitution, Sec. 9, Article 19: “We aré of opinion that this command is one necessarily addressed to the Legislature itself and that that branch of the government'must determine how far it can exercise its powers without disobeying that command. We attach little, if any, importance to the provision of the statute limiting the time to twelve years, for we think the Legislature has the power to determine whether an office to be created is permanent or temporary, whether expressly declared in the act or not. If it is created as a temporary office, we must assume that the Legislature found it to be such. .The creation of the office implies a determination that it is temporary, and not permanent. There can be no irrepealable laws which depend for existence entirely upon the legislative will,, and any office created by the Legislature is temporary in the sense that it is subject to the' legislative will,, and may be abolished at any time.”

There is no provision in this act limiting the existence of the boards to any period of time and the writer and Mr. Justice Hart think this furnishes a ground for distinguishing the eases and that a department and offices created by a law, which does not provide for the termination thereof, can in no wise be regarded otherwise than permanent, within the meaning of the Constitution which provided for and designated all permanent offices regarded necessary for the conduct and management of the State’s affairs and expressly prohibited the creation of others.

(2) The objection that no provision is made for appointment of members of the board at the expiration of the terms of those first appointed, is. without merit. The board is created by law and the members are authorized to be appointed by the Governor and the language used indicates that it should be continued by the appointment of other members upon the expiration of the terms of those first appointed and authorizes such appointment.

(3) A decision of this case does not require that we shall determine whether the manner of payment of the local registrar ont of the county funds upon the certificate of the State Registrar that the amount is due is in conflict with the provisions of the Constitution granting powers and jurisdiction to the county court, since the method followed in this instance is that prescribed by law for the collection of all claims against the county. The court is of opinion however, that the local registrar is a State rather than a county officer, since by the terms of the act the State Registrar is required to “divide the State into registration districts, designating the boundaries thereof and appointing local registrars in each district. Each registration district shall have at least one county therein.” The local registrar is appointed by the State Registrar, without the consent or approval of county authority, to whom only he reports the certificates and statistics of births and deaths which are not reported to the county at all, except by the State Registrar to the county treasurer for the sole purpose of determining the amount to be paid the local registrar and his services cannot properly be regarded a county purpose within the meaning of the constitutional provision, giving the county court exclusive jurisdiction in all matters relating to * * * the disbursement of money for county purposes and in every other case that may be necessary to the internal improvement and local concerns of the respective counties * * * Article 7, Sec. 28, Constitution. Cotham v. Coffman, 111 Ark. 115.

That part of the act relating to the payment for the services of the local registrar out of the county treasury, can be stricken out without affecting its validity otherwise, since it is easily apparent that the Legislature would have passed the act without that provision in it. Cotham v. Coffman, supra.

It follows that the judgment of the circuit court is erroneous, and it is reversed and the cause dismissed.