340. PULASKI COUNTY V. CAPLE. [191 • •uLAstct COUNTy V. CAPLE. • 4-3958 , Opinion delivered September 30, 1.935. . 1. COUNTIES—SALARIES OF EMPLOYEES.—Acts 1933, No. 275, § 4, relating to the salaries of county.officers, in providing that "none of the deputies, assistants or employees provided for in this act shall. be: appointed. or employed by any county officer or . be allowed or paid any salary until'and unless the levying court of the respective county 'shall . have made aPpropriations to pay their respecti've salaries," held unconstitfitional as in conflict with the Constitution, art. 16, § 4, pioviding that "the number , and salaries .of clerks and employees of different departments of the State shall be fixed by law." 2.. STA'prrks— L ACT INVALID IN PART.—ACts 195, No. 275, relating to the 'salaries of county officers, held not inValidated by the-§ 4 thereof, Since the act is compleie withOut such unconstitutional provision. 'Appeal front PtilaSki Cirenit Court, Second Division; Dexter Thish, Judge *on exchange ; affirmed. , TY-i,e, b' er , ff . Lasley, for appellant.: • • .1)onkam.& Flak, for appellees.. ,!.„; . MEHAFFY, J. Appellee -Charles . E.: Caple, .deptity county clerk, filed his claim in the county court of Pulaski County for, $245 , which .he alleged was the balance due him on his salary: as deputy, , county,clerk from January 1, 1934, to A,ugust 31, 1934. . . E. L. Tipton,' appellee,'.filed his claim in 'the' 'county court for the• sum - of $200, alleging that this was the bal.!. ance due him on this salary.aS deputy sheriff. Both claims were disallowed by the county' court .and appeals ,prosecuted to the circuit• court The- cases mete consolidated and tried:together, and the circuit court found in favor of appellees, allowing their claims for balance of salaries, and, the case is here, on appeal. The following stipulation was filed by the parties : • •`q • is agreed between the parties that the •emoluments of the county clerk's office is..more than sufficient to pay the salaries and expenses of the office as provided by act 275 of the Acts of 1933 ; it is also agreed that the emoluments of the sheriff's office for the year 1934
ARK.] PULASKI. COUNTY V. CAPLE.! 341 is more than sufficient to pay the salaries and ekpense of the office as provided by act 275" of the Acts of 1933. "It is further stipulated and agreed that there were no more deputies and clerks employed in either the county clerk's office or the sheriff and collector's office than the maximum number permitted by act 275. of the Acts of 1933 as listed in said act.. . "The county admits that the claimant Caple .acted as deputy county . clerk, and performed the duties as such, and that the claimant Tipton acted as deputy sheriff and performed the duties as such, but will not admit . that either was legally aptIointed." The appellees claim the right to salaries under the provisions Of act 275 of the Acts of' 1933. The title of that act is "An Act to Provide More Efficient Counti7 Government, -6 Fix the Salaries - of Various County Officers, and for Other Purposes." ' • . Section 2 of said act' provides : " The salaries of the f011owing officers', tokether. with the number, of the deputies, employees and assistants they may aPPoint ei-cept as otherwise herein provided, arid the salaries there of, are as follows :" Then follows the list of the officers, deputies and their * salaries." Under 'the prOVisiOris*of that' act Caple's salary wa g fited at $2,400 and Tipton 's' Salary was fixed at $1,680. " Section 4 of the above act read§ as follOWs : "None of the dePuties-, assistants or employees proVided for in this act shall be appointed or emplOyed by any' county officer or be allowed or paid any' salary until and rinleSs the levying court of the respectiVe ' corinty shall . have made appropriations to pay their respective salaries." - It is contended by the appellant that under '§ 4 the quorum court had the right to make the appropriation for the number of deputies it thought 'necessary . and-to make the appropriation for salaries of the deprities, had a right to fix the salaries at a sum less than that fixed by the act of the Legislature, arid that since the appellees have received the amounts' fixed by the quorum &Me, appellees are not entitled to . any additional suni: The appellees contend that § 4 Of the' act , is 'unconstitutional; that under the Constitution the' Legislature
342 PULASKI COUNTY V. CAPLE. [191 must fix the number of deputies and the amount to be paid each, and that it cannot delegate to the quorum court the right to fix the number of deputies or the amounts to be paid them. The claim of appellee Caple is for $245, the difference between the $1,600, the statutory salary for eight months of 1934, and the suM of $1,355, the amount actually paid him. • The claim of appellee Tipton is for $200, the difference between $1,120, the statutory salary for eight months of 1934, and the sum of $920, the amount actually paid him. Appellants state : "It is not necessary in this case to undertake to make a complete and . detailed abstract of the testimony becauSe the court made findings of fact covering all the facts in the case, and no exceptions were taken to these findings by either party. Therefore for the purposes of this appeal, the findings of the court are conclusive and sufficient." The findings of fact by the court are as follows : "1. The . court finds that the record of the minutes of the meeting of the Pulaski County Quorum Court held in January, 1934, for the purpose of making appropriations for general county purposes of Pulaski County shows that the appropriation for the maintenance and operation of the county clerk's office of said county. for the year of 1934. was itemized as follows : Salaries $16,- 500, postage $350, stationery and supplies $200, equipment $6,000, total $23,050. "2. - The court finds that *the record of the minutes of the meeting of the Pulaski County Quorum Court held in January, 1934, for the.purpose of making appropriations for general county purposes of Pulaski County shows that the appropriation for the maintenance and operation of the -sheriff and collector's office of said county for the year of 1934 was itemized as follows : $44,000 salaries special, $2,000, postage $1,500, equipment $1,000, miscellaneous stationery and printing $300, telephone and telegraph and return of prisoners $2,500, cars and repairs $5,000, total $56,300.
ARK.] PULASKI COUNTY V. CAPLE.. 343 "3. The court finds that at its meeting in Novem-ber, 1934, the Pulaski County Quorum Court entered an order itemizing the appropriation made at its meeting in January, 1934, for the maintenance and operation of the county clerk's office of said county for the year 1934 as follows : Salary of county clerk $4,000; . salary of one chief deputy $2,400, four deputies each $1,800, one deputy $1,740, one deputy for eight months at $145 per month $1,160, postage $350, stationery and supplies $200, equipment $6,000, total $23,650. "4. The court finds that at its meeting in Novem-ber, 1934, the Pulaski County Quorum Court entered an order itemizing the appropriation made at its meeting in January, 1934, for the maintenance aUd operation of the sheriff and collector 's office of said county for the year. of 1934 as follows : • Sheriff 's salary $5,000, two chief deputies, at $2,700 each, $5,400, one . stenographer$1,200, one jailer $1,440, two assistant jailers at $1,200 each $2,400, six deputy collectors at $1,680 each $10,080, three deputies for two months at $140 each pei month $840, one execution deputy $1,680, nine deputy sheriffs at $1,680 each $15,120, one deputy sheriff for six months at $140 per month $840, salaries of extra help $2,000, postage $1,500, equipment $1,000, miscellaneous stationery and supplies $300, telephone, telegraph and returning prisoners $2,500, automobile expense • and *repairs $4,140, total $55,440. • "5. The court finds that the clerk of PUlaski County, prior to the meeting of the quorum court in January, 1934, for the purpose of making appropriations for the maintenance and operation of the several officers of the county, had employed the number of deputies at the salaries provided for the office of the county clerk of said county by § 2 of act 275 of the General Assembly .of the State of Arkansas for the year 1933. "6. The court finds that the sheriff and collector of Pulaski County, prior to the meeting of the quorum court in January, 1934, for the purpose of making appropriations for the maintenance and operation of the several offices of the county, had employed the immber of deputies at the salaries provided for the office of sheriff
344 PULASKI COUNTY V. CAPLE. [191 and collector of said county by § 2 of act 275 of the General Assembly of the State of Arkansas for the year 1933. "7. After the meeting of the quorum court in Jan-uary, 1934, the county clerk did not discharge any of the deputies theretofore employed by him and permitted under said § 2 of said• act 275, but proportionately reduced the salaries Of • all of said deputies so employed by him so as to bring the aggregate of said salaries within the total amount appropriated by the quorum court as salaries for his said office, exclusive of his own salary, and said number of deputies so continued drew the salary from the county as thus reduced. .• Y8. After the meeting of the quorum coUrt in Jan-uary, 1934', the sheriff and collector did not discharge any of the deputies theretofore employed by him and permitted under said § 2 of .said act 275, but •proportionately reduced the salaries of of said deputies so ..employed by him so as to bring the aggregate of said salarieS within the total amount appropr . iated by the quorum court as salaries for his said office, exclusive of his own salary, - aild,said number of deputies so continued drew the salary from the county as thus reduced." • . -The court then made the following . declarations of law : • "1. The court declares as a matter. of law that § 4 of act 275 of the Acts of the General. Assembly of 1933 is unconstitutional because the Legislature by said § 4 undertook to.delegate to the quorum courts of the several counties to which said act applies the authority to fix tbe number of deputies in the county clerk's office and the sheriff and collector's office. "2. The eourt declares as a . matter of -law that, ubder § '4, article •16 of the Constitution of 1874, the Legislature must fix the number, and the salaries, of all deputies and emplo*yees in the county clerk's office, and in the sheriff and collector's office .of Pulaski County, and cannot delegate the authority to fix either the salaries or the• number of, deputies and employees in either of said offices, to the quorum court of said county. "3. The court declares as a matter of law that under § 4, article 16, of the Constitution of 1874, the
ARK.] .PULASKI 'COUNTY V. CAPER. 345 Legislature cannot fix the maximum.number of deputies and employees,' nor the maximum salaries thereof,. employed by the county clerk or the sheriff and .collector Pulaski County, and then delegate, to the quorum dourt the power tO fix the • actual number .of deputies or employees to be employed . by said clerk or -. 13T the sheriff and collector.' ' The only question . involved in this case" is 'the constitutionality of .§ 4 of the above act. If that section is valid, no clerk . or sheriff in'Pulaski County, or any other county coming under the provisions of said act could employ any deputy, assistant or employee, or allow or pay . any salary unless the levying court had . made an appropriation: . In other words, unless 'the quornm court makes an . appropriation, neither; the sheriff nor the' clerk *is permitted to employ or pay any deputy, 'assistant or employee.. •' • Section 4 of ' article'. 16 of the ConstitUtion of tbe State of Arkansas readS* as follows : . "The General Assembly shall fix ' the salaries and fees ' of all offeers in * the State, and no greater.salary fee than that fixed by law shall be paid to . any officer, employee or other person, or at any rate other : than par value; and the . numbei and salarieS Otthe clerks . and employees of the diffeieni ` dePartMentS'of . the State .shall be fixed by law." • . , .„ . The Constitution provides • that th'e Legislature, and not the quorum court, shall fix the number of deputies and their salaries.- . Tbe appellant contends that the section of the Constitution above quoted does,"not prohibit the Legislature from delegating to the quorum court the power to fix the numberof deputies and to. fix their compensation. Appellant admits,,however, that there/is dictum found in the case Nixon v. Allen, 150 Ark. 244,234 S. W. 45, which is apparently in conflict with.the theories advanced:.by appellant,* bUt . ,it contends • ;that, when the opinion in. the Nixon case is read in full, it:is apparent that it was not the intention of the court in that- case to hold that sheriff or .county clerk oh a fee basis could not appoint a deputy.
346 PULASKI COUNTY V. CAPLE. [191 We think when the whole case is read there can be no question but wbat it holds that the Legislature, and not the quorum court or any other body, has authority to fix the number of deputies and their compensation. The court said in the Nixon case : "The power to fix the salaries and fees of all officers in the State and the number of their clerks and employees and their salaries is a function which, within the limits of the Constitution, is lodged in the supreme law-making power of the State— the Legislature. ' * The General Assembly cannot delegate this legislative power to any individual officer or board." The case of Nixon v. Allen, supra, was followed in the case of Cone v. Garner, 175 Ark. 860, 3 S. W. (2nd) 1. •The Tennessee court has said : "As to the delegation . of authority to fix the salary of clerks of special courts, referred to in the last paragraph of § 4 of the act under review, in our opinion the Legislature could not delegate the power to fix the salary of a county officer or of a regular clerk of any of the eourts ; hence this provision is invalid." Hunter v. Hamilton County, 152 Tenn. 258, 277 S. W. 71. " The provision giving the county commissioners power to fix the salaries of the officers according to the fancy of the board of commissioners, which may vary in each of the 52 counties of the State, destroys that Uniformity which is contemplated by the Constitution, and is in direct violation of those provisions of the Constitution requiring the compensation of county officers to be fixed by law ; and as this provision cannot be eliminated without destroying the purposes of the act, the entire act must fail as unconstitutional and void." State ex rel. Attorney General v. Spencer, 31 Fla. 211, 87 So. 634. We know of no authority, and none has been called to our attention, which holds that the Legislature may delegate the authority to fix the number of deputies or their compensations, where it is required that they be fixed by law. " The compensations for official services are not fixed upon any mere principle of a quantum meruit, but upon the judgment and consideration of the Legislature as a
ARK . 347 just medium for the services which the officer may be • called upon to perform." Throop on Public OffiCes, § 500. Public officers' compensation is . fixed by law, and no contract or agreement made to receive less or more is binding. Mechem on Public Officers, page 249. Act 275 is a complete act without § 4, and, this being true, the fact that § 4 is void does not affect the remainder of the act. We therefore hold that § 4 of act 275 is unconstitutional and void,.but that this does not affect .the validity of the other provisions of the act. This court has many times held that where the unconstitutional portion of an act was severable, where there was a complete act without it, the fact that one section or one portion of it violated the Constitution did not necessarily make invalid the entire act. Nixon v. Allen, supra; Cone v. Garner, supra. We find no error, and the judgment is affirmed.
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