Opinion
No. 7,729, No. 7,730.
Submitted November 8, 1937.
Decided November 17, 1937.
Statutes and Statutory Construction — Counties — Reclassification — Statute Relating to Certain Duties of County Commissioners Held Directory — Statute Operates Automatically — Salaries of County Officers — Effect of Statute. Statutes — When Directory and not Mandatory. 1. Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form; when a provision relates to some immaterial matter as to which compliance with the statute is a mere matter of convenience, or the directions are given merely with a view to the proper, orderly or prompt conduct of business, or where no substantial rights depend upon the strict observance of the statute, it is generally regarded as directory and not mandatory. Same — Counties — Reclassification — Statute With Relation to Certain Duties of County Commissioners Held Directory. 2. Under the above rule, held, that section 4742, Revised Codes, requiring the various boards of county commissioners in each even-numbered year to make an order at their regular September session designating the class to which their counties belong as classified under section 4741 by the assessed valuation of the property therein, is directory only, and that therefore such an order made in February of the year 1937, instead of in September, 1936, substantially complied with the statute, no substantial rights having been impaired by the board's delay. Same — Reclassification of Counties — Statute Operates Automatically. 3. The statute classifying counties according to the assessed valuation of the property therein, for the purpose of fixing salaries of county officers as well as the penalties of their bonds (sec. 4741, Rev. Codes), operates automatically to place a county in a certain class on the ascertainment of such valuation as shown from the records of the assessor's office in even-numbered years. Same — Reclassification of Counties — Effect on Salaries of County Officers — Constitutional Law. 4. Since county officers elected in 1936 were charged with the knowledge that their salaries might be changed by a reclassification of their county as provided by section 4741, Revised Codes, an Act in force since 1905, they took office subject to the contingency that their salaries might be reduced, depending upon the assessed valuation of the property in the county, and under such a state of facts the provision of section 31, Article V, of the Constitution, prohibiting the passing of a law increasing or diminishing an official's salary after his election is not violated. Same. 5. Held, that the salaries of all officers of Roosevelt county coming within the purview of section 4741, Revised Codes, formerly a county of the sixth class but reduced to the seventh class upon reclassification in 1936, after the first Monday in January, 1937, the date on which operations on the seventh class basis began were affected by such change as of that date, regardless of the actual date a new term of office began or the duration thereof.
Consolidated appeals from District Court, Roosevelt County, in the Fifteenth Judicial District; Frank P. Leiper, Judge of the Seventh District, presiding.
Messrs. Marron Foor, Mr. Harrison J. Freebourn, Attorney General, and Mr. Enor K. Matson, First Assistant Attorney General, for Appellants, submitted a brief; Mr. Ailie M. Foor argued the cause orally.
Mr. Ernest L. Walton, for Respondent, submitted a brief, and argued the cause orally.
When the assessed valuation or the percentage of the true and full valuation of all property assessed for taxation in Roosevelt county, was of a taxable valuation of less than five millions of dollars, it became mandatory upon its board of county commissioners to conduct the business of the county upon that basis, under section 4741, Revised Codes. ( State v. Dilworth, 80 Mont. 102, 258 P. 246; City of Astoria v. Cornelius, 119 Or. 264, 240 P. 233, 234; Pickton v. City of Fargo, 10 N.D. 469, 88 N.W. 90; Cook v. Independence, 133 Iowa, 582, 110 N.W. 1029; City of Madison v. Daley, (C.C.) 58 Fed. 751; Hugg v. Camden, 39 N.J.L. 620.) In Springfield Milling Co. v. Lane County, 5 Or. 265, 271, it is said: "When a public body or officer has been clothed by statute with power to do an act which concerns the public interest, the execution of the power is a duty, and though the phraseology of the statute may be permissive, it is nevertheless to be held peremptory."
When the valuation is determined by the board of county commissioners, it then becomes only a ministerial duty to designate the class to which Roosevelt county belonged. "An official duty is `ministerial' when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action is ministerial when it is the result of performing a certain and specific duty arising from fixed and designated facts." ( Garff v. Smith, 31 Utah, 102, 86 P. 772, 120 Am. St. Rep. 924; State v. Kozer, 126 Or. 641, 270 P. 513, 515; 34 C.J. 1179.)
As a rule a statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of the power after such time or the nature of the act or the statutory remedy shows that the time was intended as a limitation. (46 C.J. 1037; People ex rel. Jacobs v. Murray, 15 Cal. 221; Board of County Commrs. v. Union P. R. Co., 63 Colo. 143, 165 P. 244; Quirk v. Diana Mines Co., 34 Idaho, 30, 198 P. 672; Village of Oakley v. Wilson, 50 Idaho, 334, 296 P. 185; State ex rel. Wight v. Park City School Dist., 43 Utah, 61, 133 P. 128.)
Relators are basing the success of their case solely and wholly on a technicality, to-wit: The failure of the board to place an order designating the classification of Roosevelt county in their minutes at the September meeting. Justice and fair dealing are on the side of the appellants. It is their contention that under our statute, when that percentage of the true and full valuation of the property within Roosevelt county upon which the tax levy is made, the class of the county automatically became fixed, except only for the order of the board of county commissioners — a purely ministerial duty.
The agreed statement of facts admits that the board of county commissioners at their August, 1936, meeting did not make a formal order for the express reason that the board considered that the decrease in the valuation of the property automatically determined the class of the county, and that no order in connection therewith was made until in February, 1937. The making of the formal order then was doing that which should have been done as a matter of course, and as a legal duty. In other words it was no more nor less than a nunc pro tunc order. "The office of ` nunc pro tunc order' is not to create, but to speak what has been done, to supply an omission in the record, through inadvertence or mistake, of action really had, or to enter an order which should have been made as a matter of course and legal duty." ( Cranston v. Stanfield, 123 Or. 314, 261 P. 52; 46 C.J. 835.)
Relators contend that the reclassification of Roosevelt county could not affect the salary of the officers elected at the general election in 1936, by reason of the provisions of section 31 of Article V, of the state Constitution. Appellants take a different view. The change of salary is made, not by operation of any law enacted during his term, but is a difference in salary resulting from the operation of a statute enacted before his term. When relator accepted his office he could with assurance say that his salary, during the term then beginning, could not be changed by any law enacted after his election, but with equal certainty he could say that, by operation of sections 4741 and 4742, his salary, at some time in the future, might be increased or diminished, dependent upon the percentage of the true and full valuation of the property in Roosevelt county, upon which the tax levy is made.
Does a county automatically change its classification, upon an increase or reduction of its assessed valuation, under the provisions of section 4741, Revised Codes, or, does a county retain its original classification, irrespective of an increase or reduction in its valuation, until an order designating the county reclassification is made, as provided to be made, under the provisions of section 4742?
The general rule against appellants' contention of automatic reclassification of counties, is set forth and summarized in 15 C.J., at pages 416, 417.
In the case of McFadden v. Borden, 28 Cal.App. 471, 152 P. 977, the supreme court of California held that when a new federal census is taken, the counties are not by operation of law reclassified under it, but remain in the old classification until reclassified by the legislature, "and that there can be no reclassification of counties except by an affirmative and direct act of the legislature itself."
A statutory situation and set of facts, very similar to those here in issue, were considered by the supreme court of New Mexico, in the case of Baca v. Board of County Commissioners of Socorro County, 30 N.M. 163, 231 P. 637, wherein the court said: "They [appellants] contend that because the creation of Carton county from the territorial limits embraced within Socorro county by the Legislature in 1921 reduced the valuation of taxable property in Socorro county below $14,000,000, the minimum valuation for first-class counties under the salary act of 1915, the classification of Socorro county was automatically reduced to that of a county of the second class. * * * The manner in which counties were to be reclassified was at that time specifically provided for by section 19 of the County Salary Act of 1915, and there is nothing to indicate any legislative intent to repeal, modify, or amend this section. It is a rule of statutory construction that repeals by implication are not to be favored, and that where two statutes can be construed together, and preserve the object to be obtained by each, they should be so construed."
The appellants argue that the county commissioners' order of February, 1937, was a nunc pro tunc order. As a nunc pro tunc order is not to create, but to speak what has been done, and to supply an omission in the record, most certainly such contention cannot be logically so urged in view of the stipulated facts. Furthermore, the order of February, 1937, does not recite the same to be effective as of a prior date, or that Roosevelt county was a seventh class county in 1936 and that its valuation had then dropped below $5,000,000. Even if the action and order of the Roosevelt county commissioners in February, 1937, reclassified such county for such purposes, the same could not affect the officers elected in 1936, by reason of the provisions of section 31 of Article V, of the Constitution of the state of Montana, prohibiting the increasing or diminishing of an official's salary after his election or appointment.
Furthermore, if a nunc pro tunc order of a board of county commissioners, made in February of 1937, can supply an omission of such board to in any way comply with the specific requirements of section 4742, with reference to making an order determinative of county classification in 1936, then said board can by nunc pro tunc order in effect repeal or nullify the specific provisions of such section.
Section 4741, Revised Codes, clearly prescribes the classification regulations under which the counties of this state shall be classified. And, section 4742, clearly prescribes the precise mode of procedure to be taken to classify or reclassify any county of this state, thus excluding all other methods. The provisions of such statutes come clearly within the rule of this court set forth in its opinion rendered in the case of Franzke v. Fergus County, 76 Mont. 150, 245 P. 962: "Since the legislature has seen fit to indicate with particularity the essential steps necessary to be taken, and has prescribed the precise mode of procedure, the statute must be held to exclude any other. Expressio unius est exclusio alterius."
We submit that the trial court correctly construed the statutes when in its order, it said: "Here we have a statute which imposes upon the Board of County Commissioners a duty. It fixes a time for the performance of that duty, and the mode and manner for its performance. The language used in sec. 4742, supra, is so clear that it requires no interpretation. For this court to say that the re-classification of Roosevelt county took place automatically without any compliance by the board of county commissioners with the provisions of the section last mentioned is tantamount to repealing that statute. This the court may not do."
The stipulated facts in this matter, permit only the conclusion that such facts show a condition existing in Roosevelt county in 1936 which made it the duty of its county commissioners to change its county classification, and also conclusively show that such county classification change was not made, and therefore Roosevelt county retains its former classification and is a sixth class county at this time.
These are appeals from two judgments of the district court of Roosevelt county commanding the board of county commissioners and the county clerk to issue warrants for the salaries of the county treasurer and sheriff, as provided by law for a county of the sixth class. The causes were tried upon an agreed statement of facts. It was stipulated that the decision in the treasurer's case should also control in the sheriff's case. The appeals were likewise consolidated for consideration here. The parties will be referred to herein as follows: The treasurer and sheriff as plaintiffs, and the board of county commissioners and county clerk as defendants.
From the pleadings it appears that plaintiffs were elected to their respective offices in 1934, each now serving his second two-year term. The treasurer's term will expire in March, 1939, and the sheriff's in January of the same year.
The agreed statement of facts shows that, during the years 1935 and 1936, Roosevelt county was a county of the sixth class, and operated as such; that the assessable property within the county was duly assessed for the year 1936 and showed the assessed value to be less than $5,000,000, which fact "had been heard" by plaintiffs; that while the decrease in valuation of the property was discussed by the board of county commissioners during the month of August, 1936, at a regular meeting thereof, no action was taken by the board to re-establish or redetermine the classification of the county. The board took no action for the reason that it considered that the decrease in the valuation of property automatically determined the class of the county. In February, 1937, however, it made the following order in its minutes: "Upon motion, board designated Roosevelt County as a seventh class county, due to the fact that the valuation of this county has dropped below five million dollars."
The agreed statement discloses that it is the contention of the board that Roosevelt county is now, and at all times during the year 1937 has been, a county of the seventh class; that plaintiffs' salaries have been paid during all of this time without the filing by them of any claims in writing with the county clerk and recorder, and that no claims in writing have been filed by plaintiffs at any time claiming any salary; that defendants have paid, and intend to continue paying, all salaries of county officers upon the basis of a seventh class county; that they would not have paid to any such officer any greater salary regardless of whether he had demanded it or filed claim therefor, and that plaintiffs were duly advised of such determination prior to the commencement of their actions.
The only question involved is: Are plaintiff officers of Roosevelt county entitled to the salary provided by law for officers of a county of the sixth class, or a county of the seventh class?
The decision depends upon the interpretation and effect to be given sections 4741 and 4742 of the Revised Codes. The former reads in part as follows: "For the purpose of regulating the compensation and salaries of all county officers, not otherwise provided for, and for fixing the penalties of officers' bonds, the several counties of this state shall be classified according to that percentage of the true and full valuation of the property therein upon which the tax levy is made, as follows: * * * Seventh class. All counties having such a taxable valuation of less than five millions of dollars."
Section 4742 provides: "The several boards of county commissioners must, at their regular session in September, 1906, make an order designating the class to which such county belongs, as determined by the assessed valuation of such county for the year 1906, under the provisions of this Act, and in each even numbered year thereafter; provided, that such classification shall not change the government of the county then in existence until the first Monday in January next succeeding."
It is clear that section 4741 prescribes a standard or criterion for the classification of counties for the purpose of regulating the compensation of certain officers, as well as for fixing the penalties on their bonds. (See, also, section 4866, Rev. Codes.) Section 4742 contains a provision as to the duty of the board of county commissioners in the premises; that is, a method of declaring and promulgating the effect of the facts of the valuation which occurred by operation of law in effect long before the election of 1936.
Plaintiffs prevailed in the trial court upon the theory that the duty imposed upon the board by section 4742 was mandatory as to time, and that the order of reclassification subsequently made in February, 1937, was not a sufficient legal compliance with the statute to accomplish the reclassification. It is the theory of defendants that the statute is merely directory, and that, having failed strictly to comply therewith, they were not precluded from doing their duty at a later date with the same force and effect as if it had been done within the time prescribed by the statute.
The question thus presented is strikingly similar to that [1, 2] raised in the case of Shekelton v. Toole County, 97 Mont. 213, 219, 33 P.2d 531, 534, a case in which the board of county commissioners failed to adopt a resolution providing for the issuance of bonds within the statutory time. The statute there applicable required such action within thirty days after the election. In the disposition of that case, the following rule from 59 C.J., section 631, page 1074, was approved, which we think is equally as applicable here: "Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results."
This case would seem, as did the Shekelton Case, supra, to be one wherein the requirements of the statute "are given merely with a view to the proper, orderly and prompt conduct of business." We are unable to see where any substantial rights have been impaired by the board's delay in making the order required by section 4742. It is agreed that plaintiffs had heard of the assessment being under $5,000,000 — the criterion for determining what their salaries should be — and, also, that they had been paid since January, 1937, on the basis of a seventh class county. It would seem, therefore, from these admitted facts, that the general purpose and result contemplated by the statute has been fairly and substantially accomplished.
Under the authorities cited, and because of what we have just said, we hold that this provision of the statute is directory rather than mandatory. What was said on this point in the Shekelton Case, supra, is likewise applicable here: "It might, however, have been mandatory in the sense that the board could have been compelled to pass and adopt the resolution within the designated thirty days. Now that the board has acted, even out of time, such provision should fairly be viewed as directory only."
The reclassification was only appropriate and legally possible when the 1936 records of the assessor's office showed an assessed valuation of the property in the county at less than $5,000,000. For the purposes of the orderly government of the county, however, section 4742 expressly forbids any such reclassification from taking effect until the first Monday of January next succeeding. This was obviously to prevent raising or lowering the salaries of most county officers having two-year terms during the period thereof, and to comply with the spirit, but not necessarily with the letter, of our Constitution in that respect.
The order of the board merely gave formal expression to a [3] status, the basis of which had already eventuated by operation of a law in effect at the time of the election in 1936. In the text, 15 C.J., section 163, pages 498, 499, the matter is stated correctly, we think, as follows: "Except where it is specifically provided that counties are not by operation of law reclassified under a new census, but remain in the old classification until reclassified by the legislature, statutes classifying counties according to population for the purpose of fixing salaries of county officers operated automatically to place a county in a certain class on the last census showing it to have the required population; but such statutes do not so operate merely on the county attaining such population, but only on the legal ascertainment of the fact by the census bureau, and they will not be allowed to operate so as to change an officer's compensation during his term in violation of constitutional provisions."
Here the classification depends upon the assessed valuation of property rather than upon the difference in the population. The principle, however, is the same, the assessed valuation of the property in the county as shown by the records in an even-numbered year being analogous to the legal ascertainment of the population at a designated time. (Compare Faucher v. Rosenoff, 65 Wn. 416, 118 P. 315.)
Plaintiffs also invoke a constitutional provision in support [4, 5] of their position. They argue that, even if the action and order of the county commissioners in February, 1937, reclassified Roosevelt county for any purpose, the same could not affect the officers elected in 1936, by reason of the provision of section 31, Article V, of the state Constitution, prohibiting the passing of a law increasing or diminishing an official's salary after his election or appointment. We are not impressed with this contention. The law which in this case operated to reduce the salaries of certain officials is one that was on the statute books before these plaintiffs took office. It is, in fact, the only law by the terms of which they may collect for services at all. It is a general rule that public officers can only claim compensation where the compensation is provided by law. ( State ex rel. Matson v. O'Hern, 104 Mont. 126, 65 P.2d 619.) When these plaintiffs were candidates for their respective offices, they were charged with the knowledge that their salaries might be the same, more, or even less than their predecessors were receiving. By virtue of the existing statute, plaintiffs took office subject to the contingency that, by operation of law, their salaries might be reduced or increased, depending entirely upon the assessed valuation of the property in the county.
This identical question was under consideration in the recent Oklahoma case of Drolte v. Board of Commissioners of Ellis County, 176 Okla. 622, 56 P.2d 800. A county clerk was there involved, and his salary was, as in this case, determinable according to the assessed valuation. In construing a similar constitutional provision the court relied upon the authority of an earlier case in which the population of the county was the determining guide as to what the salary should be. ( Board of Commissioners of Delaware County v. Williams, 38 Okla. 738, 135 P. 420, 422.) It was there said: "The foregoing provision of the Constitution, prohibiting a change of salary of an officer during his term of office, does not require that the salary of an officer shall be uniform throughout his term. It requires only that there shall be no difference in his salary during the different parts of his term, except such as result from the operation of a law enacted prior to his election or appointment. A statute enacted before an officer is elected might provide that his compensation should consist of the fees of his office. Under such statute it is entirely probable that the fees of the first year of a two-year term would greatly exceed those of the second year, or vice versa, yet such a difference in the salary of such respective years would not constitute a change in the salary of his office, in violation of the foregoing provision of the Constitution. So, in the instant case, the officer's salary is made to depend upon the population of his county at biennial periods, and the fact that the census at one of the periods, occurring after his term began, exceeds the population as shown by the preceding census, and thereby operated to give the officer a greater compensation for the latter period of his term than for the first period, does not constitute a change of salary by operation of any law enacted during his term, but is a difference in salary, resulting from the operation of a statute enacted before his term began. The same reasoning and conclusion apply to the amount to be allowed for clerk hire." The same principle controls here, except that instead of the population being the effective matter which changed the salary in this instance, it was the decreased valuation of the assessed property in the county.
It is obvious that the legislature may likewise provide fixed or flat compensation for all or any part of a term, viz.: It might provide that all sheriffs shall receive $2,000 for the first year of a term, and $3,000 or $1,000 for the second year, provided always that the statute so fixing compensation be in effect at the time of the election of the incumbent. This might come about by reason of facts justifying such discrimination known to the legislature and by it deemed sufficient to warrant such discrimination.
Under this view of the matter, and by reason of what we have heretofore said with regard to the duty of the board of county commissioners, we hold that each of the plaintiffs here is entitled to compensation on the basis of a county of the seventh class. As pointed out earlier in this opinion, and by reason of the proviso in section 4742, supra, "that such classification shall not change the government of the county then in existence until the first Monday in January next succeeding," operations on the seventh class basis did not actually commence in Roosevelt county until January, 1937. The salaries of all officers within the purview of section 4741, supra, were affected as of that date, regardless of the actual date a new term of office began, or the duration thereof.
The judgments are therefore reversed and the causes remanded, with direction to the district court to enter judgments for defendants.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES ANDERSON, MORRIS and ANGSTMAN concur.