Park County Board of County Commissioners v. Hodge ( 1990 )

CARDINE, Chief Justice.

This was an action to recover the sum of $400 per month for the balance of Sheriff Dan Hodge’s term. The Park County Board of County Commissioners (Board) appeals from a summary judgment in favor of Hodge.

The Board presents for our determination the following issues:

“A. Did appellee provide sufficient ‘record’ to sustain the summary judgment?

“B. Did the court err in determining that the housing allowance was ‘salary’?”

We affirm.

Appellee Dan Hodge is the sheriff of Park County. From the beginning of his term, January 1987, he was paid a housing allowance of $400 per month. On July 1, 1988, the Board ceased payment of the $400 per month housing allowance. Hodge sued the Board in district court, alleging that Art. 3, § 32 of the Wyoming Constitution prohibited the Board’s action. Article 3,§ 32 of the Wyoming Constitution provides:

“Except as otherwise provided in this constitution, no law shall extend the term of any public officer or increase or diminish his salary or emolument after his election or appointment * * *.”

On review of summary judgment, we examine all of the information and material presented to the district court. Matthews v. Fetzner, 768 P.2d 590, 592 (Wyo.1989). The record in this case consists of Hodge’s complaint, motion for summary judgment, and affidavit with one of his pay stubs attached showing the payment of $400 per month.

The second paragraph of Hodge’s complaint states:

“2. From the beginning of his term, until July 1, 1988, plaintiff received, as authorized by law, as part of his salary, a housing allowance of approximately $4,800 per year.”

The Board’s answer to paragraph 2 of the complaint states as follows:

“1. This Defendant admits paragraph

Having admitted that the $400 per month was salary, the Board now claims that Hodge failed to establish that the housing allowance was part of his salary. The Board also argues that Hodge did not establish that he was legally entitled to any salary.

The Board, in its answer, admitted the precise point it now seeks to dispute. A party is bound by its admissions. Board of County Comm’rs v. State ex rel. Miller, 369 P.2d 537, 540 (Wyo.1962). For purposes of this case, appellant’s admissions conclusively establish that the monthly $400 payments were legally authorized and part of Hodge’s salary. The Board is precluded from asserting now that they did not intend to make these admissions or that the admissions are incorrect. The Board made no attempt to amend their answer, and indeed filed nothing further until Hodge was granted the summary judgment.

Since the Board has admitted that these payments were part of Hodge’s salary, we do not reach the general question of whether a sheriffs housing allowance as provided in W.S. 18-3-603(b) is something other than “salary of emolument.” The opinion dissenting and concurring in the result only is advisory. While the dissenting justice may believe he is writing for the future of the law, the reader should remember the thoughts are his alone and that a majority of this court would probably disagree, if it were inclined to issue an advisory opinion.

The only question here presented is whether the Board’s action in terminating the monthly payments violated Art. 3, § 32 of the Wyoming Constitution. The Board has admitted that the $400 per month payment to Hodge was salary. The cessation of this payment during his term was in violation of Art. 3, § 32 of the Wyoming Constitution. It was unconstitutional and void. The summary judgment, therefore, is affirmed.

THOMAS, J., filed a specially concurring opinion.

URBIGKIT, J., filed an opinion dissenting and concurring in the result only.