Flurry v. Jackson County

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court sustaining a demurrer and dismissing the suit of the appellant Flurry wherein he claimed that the appellee Jackson county was indebted to him in the sum of eight hundred seventy-five dollars as a balance of salary due him as bridge commissioner for the county for the year 1922.

The board of supervisors, acting under section 5 of chapter 276, Laws of 1920, employed the appellant Flurry as bridge commissioner for. the county at a salary of one hundred twenty-five dollars per month for and during the year 1922. After Flurry had served several months as bridge commissioner he was discharged by the board on the ground that he was related to a member of the board within the third degree as prohibited in chapter 278, Laws of 1922, whereupon he demanded and sued for the balance due him for the remaining months of 1922.

Section 5 of chapter 276, Laws of 1920, provides as follows: : ■ ! :

“The board of supervisors are hereby authorized, in their discretion, if they consider it necessary and to the general interest of the county or district, to employ a competent person to serve as road commissioner, whose compensation shall not exceed five dollars per day for each day served in the actual discharge of his duties, as defined by the board of supervisors of each county. Labor for said roads to be employed by the board of supervisors, in case there be a commissioner, to be employed by him.”

Acting under this statute the board in January, 1922, appointed appellant Flurry as bridge commissioner by the following order spread upon its minutes, to-wit:

“Ordered by the board that J. L. Flurry be and is hereby appointed bridge commissioner for Jackson county for the year 1922, in accordance with the former orders of this board relative to the duties of such commissioners, and that his salary as such commissioner be fixed at one hundred twenty-five dollars per month until the further orders of this board relative thereto. It is further ordered by the board that he be required to furnish bond as such commissioner in the sum of one thousand dollars, as provided by law, same to be approved by this board.”

There are several grounds of demurrer, but we shall notice only one, which we think was good and justified the action of the lower court in dismissing the suit, and that is, the order of the board appointing appellant bridge commissioner was void, and the board had the right to dispense with his services at any time, because the order provides that “his salary as such commissioner be fixed at one hundred twenty-five dollars per month until the further orders of this board relative thereto.”

We think the order is invalid because it is contrary to the statute with reference to the compensation to be allowed the commissioner for his services. The only authority given the board to employ a bridge commissioner is derived from this statute, which provides the board is authorized “to employ a competent person to serve as road commissioner, whose compensation shall not exceed five dollars per day for each day served in the actual discharge of his duties.” The order of the board fixing the compensation .at one hundred twenty-five dollars per month without reference to daily compensation for “each day served in the actual discharge of his duties” is contrary to the provision fixing the compensation. The compensation is per diem, not by the month, and the requirements of the statute must be followed.

We are not called upon to decide whether or not the employment could have been by the year if the compensation had been fixed at a sum not in excess of five dollars per day for each day served in the actual discharge of his duties; nor is it necessary to decide whether the employment could be by the month where compensation is fixed by the day for the actual services rendered for each day, because the order makes no such provision, but simply provides for compensation at one hundred twenty-five dollars per month, regardless of the number of days of actual service rendered or the fixed amount to be paid for each day’s work.

Whether the nepotism law is applicable in the case we do not decide, because a consideration of this point might involve the constitutional question of the impairment of contract, since the contract by the board with a relative in January, 1922, was a valid contract at that time because the nepotism.act did not become operative until afterwards.

The judgment of the lower court sustaining the demurrer and dismissing the suit is affirmed.

Affirmed.