Young v. Commissioners , 102 Colo. 342 ( 1938 )

THESE parties appear here in the same order as in the trial court. They are hereinafter referred to as there, or as Young, the county, and the attorney general, respectively.

Young is county treasurer and ex officio public trustee of Park county. As the latter officer he earned approximately $125 in fees, to which he maintains his right as compensation. His claim therefor was disallowed by the county whereupon this suit was filed seeking a declaratory judgment interpreting and construing chapter 152, page 789, S. L. 1933, which purports to limit Young's compensation to that received by him as county treasurer. Defendants demurred for want of facts. These demurrers were sustained and plaintiff elected to stand. To review the judgment thereupon entered against him he prosecutes this writ.

Why a declaratory judgment suit, does not appear. Young's rights, if any he had, were fully matured, fixed and finally determined. Having filed his claim with the county and had it disallowed his statutory course was clear, open, definite, and ample. No reason has been suggested for a declaratory judgment suit and none occurs to us.

The plaintiff's brief was filed almost a year ago. The attorney general, who was made a party and filed his brief July 15, 1937, solely by reason of the provisions of section 88, chapter 93, '35 C. S. A., gives scant consideration to the questions presented by Young, but depends upon a proposition which we consider wholly untenable, and counsel for Young files no reply brief. But for the possible importance of this case to many other counties of the state the judgment should be affirmed without written opinion.

Prior to the passage of said chapter 152 the statutory compensation of the public trustee of Park county was the fees earned, not exceeding $2,000 per annum. Young was elected in November, 1934, and took office in January, 1935. His claim is for fees earned for the calendar year 1935. He alleges that he made report thereof to the county and filed his claim for these fees, which claim the board denied March 2, 1936. This complaint was filed March 30, following. Said chapter amends section 5047, C. L. 1921, and is now section 56, chapter 40, '35 C. S. A. It specifies the duties of public trustee, fixes the fees therefor, and the trustee's compensation. The following section classifies the counties of the state into first, second, and third, placing Park in the latter. Said section 56 directs that in this class "the public trustee shall receive no salary other than that which he receives as county treasurer." Section 4 of said chapter 152 reads: "This act shall be effective on and after January 15, 1935." Section 1 of said chapter provides, inter alia, that the fees earned as public trustee shall be paid "into the county treasury."

Young contends that said chapter 152, as applied to him to deprive him of the fees claimed, contravenes section 15, article XIV and sections 25 and 30 of article V of the state Constitution.

1. If the act of 1933 conflicts in any manner with said section 15 it is only in its requirement that the fees be paid over rather than retained by the public trustee. On that point counsel cites Airy v. People, 21 Colo. 144,40 P. 362; Davis v. Dunlevy, 11 Colo. App. 344,53 P. 250; Blanchard v. Chaffee County, 15 Colo. App. 410,62 P. 579; Price v. Kit Carson County, 22 Colo. App. 315,124 P. 353; Glaister v. Kit Carson County,22 Colo. App. 326, 123 P. 955. But we are not here concerned with the question. The point is not, Should Young as public trustee keep these fees or pay them to himself as county treasurer, but, Is he, as public trustee, or the county now entitled to them?

[1] 2. Said section 25 forbids the passage of special laws increasing or decreasing allowances of public officers. But an act which makes a reasonable classification of counties, as this clearly does, and is equally applicable to all counties of a given class, as this unquestionably is, is general legislation, not special. Numerous illustrations may be gathered from our own statutes and from the state's unbroken legislative practice. Counsel suggest no reason why the present instance is an exception to the rule.

[2, 3] 3. Said section 30 forbids the increase or diminution of the salary or emoluments of a public officer "after his election or appointment." But the question here is not what was the remuneration of the public trustee of Park county from November 6, 1934, when plaintiff was elected, to January 15, 1935, when the act took effect. The question is, When plaintiff was elected November 6, 1934, what was then the compensation fixed by law for the term for which he was elected? That compensation had been definitely fixed by said chapter 152, already passed and approved, and effective on the date named therein, i. e., January 15. The compensation had been changed as of that date when plaintiff was elected. We do not overlook the general rule that statutes speak from their effective date, and that, generally speaking, they are held inoperative for any purpose prior thereto. 59 C. J., 1137, § 673. But it seems to require no argument to demonstrate that such statements are not entirely accurate. In the instant case the law was passed and approved. It carried no provision which could properly be constructed as a declaration that it was not to be considered law for any purpose before January 15, 1935. The mere statement "This act shall be effective on and after January 15, 1935" applied to the instant case means nothing more than that the change in compensation takes effect on that date. In other words on November 6, 1934, when plaintiff was elected, it was the law of Colorado that on and after January 15, 1935, the public trustee of his county should receive no compensation beyond what he drew as county treasurer.

[4] When the General Assembly was in session in 1933 it had unquestioned power to fix the compensation of a legislative officer who would not be elected until November, 1934, nor take office until January, 1935. To hold otherwise would be to hold that it had no authority to fix such compensation at all. It could only so act, however, by providing, as it did, that the statute "shall be effective on and after January 15, 1935," or omitting all limitation. In the latter case, the act, which was approved May 2, 1933, would have gone into effect August 2, 1933, applied to trustees then in office, and thus have reduced their compensation, in plain violation, as Young here contends, of said section 30.

When Young became a candidate, when he was elected, and when he took office, the statute provided that, during his term, he should receive no compensation as ex officio public trustee beyond what he received as county treasurer, and he had full notice thereof, hence there was no diminution of his salary or emoluments "after his election" and no violation of said section 30.

The judgment is accordingly affirmed.

MR. JUSTICE BOUCK concurs in the result.

MR. JUSTICE KNOUS not participating.

On petition for rehearing Mr. Justice Bouck withdraws his concurrence in the result and dissents.