State Ex Rel. Rusch v. Board of County Com'rs , 121 Mont. 162 ( 1948 )

I think my associates are in error in holding that a deputy sheriff is not an officer within the meaning of the rule that makes the salary an incident to the office.

"Although in some jurisdictions it is held that a deputy is not a public officer, the weight of authority appears to be the other way, especially where the appointment is permanent and not merely casual for a special service, and where he is required by statute to take an oath of office." 43 Am. Jur., p. 220, sec. 462.

In this state deputies must take and file an oath "in the manner required of their principals." Sec. 435, Rev. Codes 1935.

Relator here held a permanent appointment as distinguished from a casual appointment for a special service. Deputies possess exactly the same powers and duties and assume the same liabilities that the law imposes upon the principal. This is by virtue of section 4733, reading: "Whenever the official name of any principal officer is used in any law conferring power, imposing duties or liabilities, it includes his deputies."

In Stubbs v. Lee, 64 Me. 195, 18 Am. Rep. 251, it was held that one holding the office of trial justice by accepting the office of deputy sheriff vacated the former office. The court said: "The defendant having been appointed and sworn as a deputy-sheriff must be regarded as having accepted that office. By that acceptance he surrendered the office of trial justice, a judicial office incompatible with that of a deputy-sheriff."

In State ex rel. Walker v. Bus, 135 Mo. 325, 36 S.W. 636, 638, 33 L.R.A. 616, the court said: "The statute requires a deputy sheriff to take ``the oath of office,' and his powers and duties are made equal to those of the sheriff himself. The deputy sheriff is certainly a ``public officer,' under the laws of this state, and his power and authority are co-extensive with that of sheriff. State v. Dierberger, 90 Mo. 369, 2 S.W. 286." The same conclusion was reached in the case of Flanagan v. Hoyt, 36 Vt. 565, 86 Am. Dec. 675, and Russell v. Lawton, 14 Wis. 202 [reprint page 219], 80 Am. Dec. 769. Likewise, a deputy city clerk (Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P.2d 94); a deputy building inspector (State ex rel. Stage v. Mackie, 82 Conn. 398, 74 A. 759); a deputy county auditor, required to take the oath required of the principal and perform the same duties and subject to the same liabilities as the principal (Wells v. State, 175 Ind. 380, 94 N.E. 321, Ann. Cas. 1913C, 86) and a deputy assessor (Robertson v. Robinson, 65 Ala. 610, 39 Am. Rep. 17), have been held to be public officers.

Mechem in his work on Public Offices and Public Officers, section 38, page 16, has this to say:

"Whether deputies appointed by public officers are to be regarded as public officers themselves, depends upon the circumstances and method of their appointment. Where such appointment is provided for by law, and a fortiori where it is required by law, which fixes the powers and duties of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of their duties, the deputies are usually regarded as public officers. Thus deputy postmasters appointed and qualified according to law, are public officers. So a deputy marshal is an officer of the United States, and deputy sheriffs are recognized by the statutes of most States as independent public officers.

"But where the deputy is appointed merely at the will and pleasure of his principal to serve some purpose of the latter, he is not a public officer but a mere servant or agent. So a special deputy employed only in a particular case is not a public officer."

As to deputy sheriffs, while serving at the will of the principal (sec. 422) they are not appointed merely to serve some purpose of the principal but are appointed to perform the same sovereign functions of government as the principal. Sec. 4733. Their appointment is expressly authorized by statute (sec. 4875) and the legislature is given authority to provide for their appointment. Sec. 6, Art. XVI of the Montana Constitution. Former Attorney General S.C. Ford held that a deputy sheriff is a public officer and hence not entitled to the benefits of the Workmen's Compensation Act, (Vol. 8 Op. Atty. Gen. p. 310) and former Attorney General Albert J. Galen held that all deputy county officers are public officers within the meaning of section 7, Article V of the Constitution prohibiting members of the legislature from holding other public office under the state. Vol. 2 Op. Atty. Gen. p. 56.

True, we have held in Adami v. County of Lewis Clark,114 Mont. 557, 138 P.2d 969, that deputies are not public officers within the meaning of section 31, Article V of the Constitution prohibiting the legislature from changing the compensation of an officer during his term. This court simply held that that section had to do only with officers having a fixed and definite term. By clear implication the court recognized that there may be officers who do not hold for a fixed and definite term but only at the will of the appointing power. Such, in my opinion, are deputy sheriffs. Even though a deputy sheriff may not be a public officer within the meaning of section 31 of Article V of the Constitution, that does not prevent him from being a public officer within the meaning of some other constitutional or statutory provision or within the rule that the salary fixed by law is an incident to the office.

Whether the deputy sheriff comes within that rule or not depends upon the reason for the rule and whether the office of deputy sheriff comes within that reason.

The rule is grounded upon the proposition that so long as the officer holds the office he is entitled to the salary which goes with it, not by virtue of a contract but as an incident to the right to hold the office. McGillic v. Corby, 37 Mont. 249,95 P. 1063, 17 L.R.A., N.S., 126, and see note in Ann. Cas. 1918B, 435. In order to be deprived of the right to the salary the officer must be discharged or removed from the office. There is no reason why the rule should be made applicable to the principal and not to the deputy.

A deputy sheriff's salary when fixed by the county commissioners under section 4874 constitutes a salary fixed by law and not one fixed by contract.

The case of O'Leary v. The Board of Education of the City of New York, 93 N.Y. 1, 45 Am. Rep. 156, is a leading case on this subject. In that case there was involved a clerk serving at the will of the principal. Illness prevented the performance of services for a long period. He was granted a leave of absence. He was paid for about nine months during which time he performed no services. He was finally discharged and attempt was made to have the discharge operate retroactively. This the court held could not be done and that he was entitled to the salary until the date of his actual discharge. The court said:

"The plaintiff was clearly entitled to the amount of salary which had been audited to him for the months of May and June, nor are we able to see any reason why he should not be entitled to his salary subsequent to that period and up to the time when the resolution of removal was adopted. He left for Europe on the 15th of May, and at that time no action had been taken by the defendant. He was clearly entitled to his salary up to that date, and the auditing of the bills continued it up to the 1st of July. After that and until the early part of September the public schools were closed as also was the office of the department and the general office, and all the employes went on their vacation. There was then no service for the plaintiff to perform during this period, and he had the leisure which was allotted to all in the department and to which he was clearly entitled with them.

"The defendant having excused the plaintiff for good cause and sufficient reasons from a temporary discharge of his duty, and failing to take any action indicating its intention to relieve him from his office, we think must be regarded as assenting to his absence and is estopped from insisting or claiming that the plaintiff was not in its employment. If it was considered that his duties were at an end, some steps should have been taken and he notified that such was the intention of the board."

The case of O'Hara v. City of New York, 46 A.D. 518,62 N YS. 146, 149, applied this rule to a watchman in the county court house, the court saying, "As a watchman, it is fairly to be assumed that he was called upon to use good judgment, and it was necessary that he should be an honest, reliable, and trustworthy man. But the nature of his duties is not particularly important. The case turns upon the right which the plaintiff had to the position to which he was appointed, and, so long as his right to the position existed, we think the rule should be applied which has come to be recognized in cases of this kind, — that the right to the salary is an incident of the position from which one is irremovable, and as long as the position exists the right to the salary remains." And this was adhered to on appeal in 33 Misc. 53, 66 N.Y.S. 909. It was also applied to a doorkeeper who was prevented from performing services by reason of sickness and where he had not been notified that his services were no longer required and where he had not been discharged. Devlin v. Mayor, 41 Hun, N.Y., 281.

It is contended that section 4891 prohibits payment of compensation when no services have been rendered. That section reads: "The board must not order the payment of the compensation of any deputy until he has signed and filed with the county clerk the following affidavit: State of Montana, County of ____ ss. I do swear that I have rendered services as deputy ____ for the month of ____, 19__, and that I am entitled to receive the full sum of my compensation for the same for my own use and benefit, and that I have not paid, deposited, or assigned, nor contracted to pay, deposit, or assign any part of such compensation for the use of any other person, nor in any way, directly or indirectly, paid or given, nor contracted to pay or give, any reward or compensation for my appointment to office, or the emoluments thereof, to my principal or to any other person."

It will be noted that most of the affidavit relates to giving or promising to give a reward for the appointment. It was designed chiefly to prohibit corrupt practices in the matter of making appointment of deputies. But this same matter is dealt with in the Constitution, section 1 of Article XIX, which prescribes the form of official oath for all public officers dealing specifically with the matter of paying or promising a reward for an appointment. The constitutional provision then states, "And no other oath, declaration or test must be required as a qualification for any office or trust." Section 430, Revised Codes, is a reiteration of section 1, Article XIX of the Constitution.

It is clear that the portion of section 4891 relating to promises of a reward for appointment to the office of deputy is in conflict with the last sentence in section 1, Article XIX of the Constitution. Whether the invalidity of the major portion of section 4891 affects the remainder of the Act need not now be considered. If section 4891 has any validity it affords no defense to this action. The petition alleges that appellant filed the affidavit in this instance and defendant board has no discretion under the statute to investigate the truth of the statements therein made. The statute carries its own penalty for a false oath which is provided for in section 4906.

It seems to me that former Attorney General Nagle gave the correct rule when he held in Volume 15, Opinions of Attorney General, page 278, Opinion No. 398, that vacations with pay and pay when absent on account of sickness should be allowed to county officers and deputies so long as they remain in office and have not been discharged by their principal and particularly when their part of the work has been handled by other deputies without any additional cost to the county.

I think the court erred in sustaining the demurrer to the petition and in dismissing the action. The judgment should be reversed and the cause remanded with directions to overrule the demurrer and to allow defendants a reasonable time to further plead.

Rehearing denied April 20, 1948.