Rooney v. Supervisors of Milwaukee County

Ryan, C. J.

Ch. 177 of 1875 does not purport to authorize or require the treasurer of Milwaukee county to employ clerks in his office, and the board of supervisors to pay him the compensation of clerks so employed. It requires the board to pay the treasurer an annual sum, in addition to his salary, for the purpose of enabling him to employ clerks. It does not appear *26 in this case that the treasurer actually employs any clerks in his office, though it may be presumed that he does. He takes the office cum onere, bound to discharge its duties, with or without clerks, as he may be able. And the sum which the statute requires to be paid to him is, by its terms, absolutely payable, without reference to the number or compensation of the clerks he may employ. There is therefore no doubt, as was indeed conceded on the argument, that the statute must be held as directly increasing the compensation of the treasurer himself, after the commencement of his term of office.

Sec. 26, art. IY of the constitution, prohibits the legislature from increasing or diminishing the compensation of public officers during their term of office. But this provision has been held to apply to such officers only as receive salaries from the state treasury; that is, state officers proper, excluding municipal officers proper. Supervisors v. Hackett, 21 Wis., 613 .

Legislative history points and sanctions the policy of the constitutional provision, to limit public officers to the very compensation at which they take office, to put their compensation beyond legislative interference, and to save the legislature from their importunity, and the treasury from legislative discretion in their favor. Carpenter v. State, 39 Wis., 271 . The purpose of the provision appears to apply as well to municipal officers receiving salaries, as to state officers; and it is unfortunate, perhaps, that the language of the constitution could not be held to include both. Such was evidently the view of the legislature.

Supervisors v. Hackett was decided January 3, 1867. And ch. 75 of 1867, passed April 2d, the same year, was plainly intended to supply the defect in the constitution disclosed in that case. It requires county boards of supervisors to fix the amount of salaries of county officers the year before their election; and prohibits increase or diminution of such salaries during the term of office for which they are fixed.

This statute is very distinguishable from ch. 20 of 1863, *27 wbicb related to county treasurers only; and tbé main purpose of wbicb appears to have been, to substitute fixed salaries in lieu of fees, as compensation of those officers. It provides, indeed, that tbeir salaries, once fixed, shall not be increased or diminished during tbeir term of office, but reqitires them to be fixed after, not before, the election of those officers. The essential difference between the two statutes, even in relation to county treasurers, is obvious.

The statute of 1867 effectively applies the wise policy of the constitution to county government.throughout the state, with the prudential addition that the compensation of county officers shall be unchanged, not only during their term of office, but after their election. The salary must go upon the duties of the office, not upon the influence of the officer. And the statute appears to us to be as manifestly part of the system of county government, as any other statutory provision; as manifestly as the constitution itself is part of the system of state government. The statute enters into and forms an essential and weighty provision of the organic law of county government established by the legislature. It enacts a vital principle, to control county government throughout the state. And it would be a signal breach of the uniformity of the organic system of county government required by the constitution, that the board of supervisors of one county should be permitted or required to disregard the wholesome principle binding all the other counties of the state. It would be a strange uniformity which, for grave ends of public policy, should absolutely place the compensation of county officers beyond control in some counties, and subject it, in violation of such policy, to control in other counties. It is not a question of the amount of compensation. It is a question of mischievous control over compensation. And the statute of 1875 is an attempt at the very evil which the statute of 1867 is intended to prevent; the former proving the wisdom of the latter. The legislature may at pleasure repeal the statute of *28 1867, but cannot suspend its operation in a single county. And while it remains in force, the board of supervisors of a county can take no statutory power to violate its provisions. The legislature has no power needlessly and materially to impair the practicable uniformity of the one system of town and county government required by sec. 23, art. XIY of the constitution. State v. Riordan, 24 Wis., 484 ; State v. Supervisors, 25 id., 339; State v. Dousman, 28 id., 541; McRae v. Hogan, 39 id., 529.

State v. Abert, 32 Wis., 403 , goes upon the ground that the statute in that case impaired the uniformity in a matter so trifling and unimportant as not to merit serious consideration on the question of its validity; de minimis non curat lex. Single v. Supervisors, 38 Wis., 363 , holds a statute authorizing a county to subscribe to the stock of a railroad, not to affect the system of county government. Nothing said in either of those cases is in conflict with the views taken of this.

By the Gou/rt.- — -Judgment reversed, and cause remanded to the court below with directions to affirm the appellant’s disallowance of the respondent’s claim.