Board of Supervisors v. Hackett

I think the word “ compensation,” as used in section 26, Art. TV", of the constitution, signifies the return for the services of such officers as receive a fixed salary payable out of the public treasuiy of the state; and that it does not, and was not intended to, apply to the remuneration of that large class of officers, such as sheriffs, constables, clerks of courts and others, who receive specific fees for specific services as they are from time to time required to render them. The *618gross annual compensation of such officers is always uncertain and fluctuating, and the receipts during one term of office, or portion of a term, as compared with those of another, may be and often are largely increased or diminished. The conclusion that it was not the intention to restrict the power of the legislature as to the compensation of officers of this class, is so obvious to me from the very context, and the opposite construction would produce such great and manifest public inconvenience, that I cannot make it plainer by any mode of reasoning which I can adopt. I think the limitation applies only to those salaried officers paid by the state, and not to those minor ones who, according to the usual course of public business, are paid by fees taxed or allowed for each item of service as it is rendered. The treasurer of a county is such an officer, and I do not doubt that it is competent for the legislature to increase or diminish his fees or commissions during his term of office, or to fix the amount which he shall receive for any new service which may be required of him by law. It was competent for the legislature to authorize the board of supervisors to regulate the compensation to be paid to the treasurer of Milwaukee county for all duties performed by him under the act to raise money to pay bounties to volunteers, and to provide that such-compensation should not exceed one thousand dollars. Laws of 1864, ch. 42, sec. 9. Understand the limitation of the constitution to apply to such an officer, and I do not see but it would destroy the claim of the treasurer entirely for any compensation for services rendered under the act. The limitation is, that the compensation shall not be increased, as well as diminished. The compensation of the treasurer was certainly increased by the one thousand dollars over and above what it would have been had the act not been passed and the additional services required. I think he can claim and retain the one thousand dollars, and no more, from the county.

The five per cent, collector’s fees on lands returned delin*619quent to the county treasurer, belongs to the county. The statute makes this as clear as language can, when it declares that it “ shall be collected by the county treasurer in the same manner as other delinquent taxes are collected, and paid into the county treasury for the use of the county.” Laws of 1861, ch. 26, sec. 2.

Whether the district attorney can prosecute this action to recover back the five per cent, collector’s fees, without the authority of the board of supervisors, is not a question here presented. That is a matter in abatement, to be brought before the court by answer; or by special motion or order for the district attorney to show by what authority he prosecutes that claim, and, if it appear that he has none, to dismiss the action as to that cause. It is not an objection which can be raised or put in evidence before the jury on trial of the general issue) or mere denial of the allegations of the complaint.

I think the judgment should be reversed, and a new trial awarded.

By the Court — Ordered accordingly.

On a motion for a rehearing, the counsel for defendant insisted that every person who is appointed to discharge a public duty, and receives a compensation therefor, whether from the treasury of the state or otherwise, is a “ public officer ” (Hurly v. Mayor of Linn, 5 Bing., 91; People v. Hays, 7 How. Pr. R., 248; 11 id., 240; 5 Bac. Abr., 180; 7 Bac. Abr., Phil. ed. of 1860, p. 280; People v. Bedell, 2 Hill, 196; Case of Daniel Wood, 2 Cow., 29, note; Dean v. Gridly, 10 Wend., 255); that the “ compensation ” of a public officer means any reward or remuneration for his services ; and that the framers of the constitution must be supposed to have used these words in their ordinary signification. Attorney General v. Brunst, 3 Wis., 787; Sedgw. on Stat. and Con. Law, 227; Smith’s Comm., § 513. Counsel also called the attention of the court to the answer as *620found in the record, as raising the question of the right of the district attorney of Milwaukee county to prosecute this suit for any items therein shown to have been approved by the supervisors.

On the motion for a rehearing we have been strongly urged to review the decision above made, and to recede from the views there expressed. But we are entirely satisfied with the construction placed upon the provisions of the constitution there considered, and think it the only one which the context will sustain.

In regard to the question whether the district attorney was authorized to sue for the five per cent, collector’s fees, the aspect of the case is not changed by the matters contained in the answer to which our attention is called. The answer does not contain any averment that the district attorney was not authorized by the board to prosecute as well for the five per cent, as any other sum. It states, in substance, that Haclcett made and delivered to the board a statement of all his receipts and disbursements as county treasurer, and that this account as to certain items was examined, approved and settled by the board. But it further shows that there were other important charges in the account which were not settled, and the correctness of which was contested by the board. The account as rendered by Hackett was not acquiesced in by the board. And we think it very clear that it never was settled and accepted by the parties so as to become an account stated. The board objected to certain items as rendered, and the treasurer never admitted that it was correct and binding upon him as corrected by the board. . So we suppose the account must still be treated as an open one.

There are one or two other items in this account rrpon the justness and legality of which our opinion is desired.

First, whether the treasurer was entitled to a commission of *621one per cent, upon the tax certificates. "We think he was not. The tax certificates issued by him to the county at the tax sale were not, in any sense of the word, moneys received or paid out by him. The commission on them must therefore be disallowed.

The treasurer must likewise account for the par value of all bonds sold by him which he was not authorised to sell by the resolution. It is claimed that he sold a number of bonds, at a discount of $19 on each bond, more than were necessary to pay the legitimate expense connected with the business relating to the bonds. If so, he should account to the county for the full face of all such bonds, since they are worth to the county that much, and were disposed of by the treasurer without authority.

By the Court.- — -The motion for a rehearing is denied.