No. 12774 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA

MARGARET BROWN, Gallatin County Superintendent of Schools, EARL BEST, GallatinCounty Surveyor, CARL STUCKY, Gallatin County Clerk and Recorder, IRIS WHITTLE, Gallatin County Treasurer, WILLIAM JOHNSON, Gallatin County Auditor, PAUL REESE, Clerk of theDistrict Court of Gallatin County, and L.D.W. ANDERSON, Gallatin County Sheriff, Plaintiffs and Respondents,

THE BOARD OF COUNTY COMMISSIONERS OF GALLATIN COUNTY, MONTANA, Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial District, HonorableW. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas Allen Budewitz, Assistant Attorney General,

argued, Helena, Montana For Respondents

### : Thomas A. Olson, County Attorney, Bozeman, Montana Ronald K. Olson, Deputy County Attorney, argued,

Bozeman, Montana

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## 12;gjq Filed: - - Submitted: November 19, 1974 Decided: 

# DfC121974Mr. JusticeWesley Castles delivered the Opinion of the Court. This is an appeal from ajudgment for plaintiffs entered by the district court, Gallatin County, Hon. W. W. Lessley presiding. Plaintiffs are elected county officers. They brought a declaratoryjudgment action seeking a determination of their salaries under the provisions of section 25-605 and 25-609.1, R..C.M. 1947, for the fiscal year July 1, 1973 through June 30, 1974. The trialcourt

# 's judgment read: "That 'taxable valuation' tobe used incomputing the plaintiffs' salaries isa valuation for the new fiscal year 1973-1974, and the defendants have a clear legal duty tocompute the taxable valuation for the fiscal year 1373-1974 and pay salaries to the plaintiffs based thereon. The 'taxable valuation' should be computed on orbefore July 1of each fiscalyear using the new figures available to the defendants. It Defendant raises two issues on appeal: (1) Whether there isa clear legal duty to compute taxable valuation of a county on orbefore July 1of each fiscalyear. 

### (2) Whether the taxable valuation of a county which is completed after July 

### 1may be used to compute salari~s of county officers for the following fiscalyear. Appellant isthe Board of County Commissioners of Gallatin County. Itsposition is that it cannot be compelled tocompi~te the taxable valuation of a county prior to July 1,because it has until the second Monday inJuly to assess the taxable property under section 84-406, R.C.M. 1947, and the second Monday inAugust to affixthe milllevy under section 84-3505, R.C.M. 1947. In otherwords, appellant 

### argues that the only valuation existing as of July 1to apply the salary formula to isthat of the previous year. On the other hand, respondent county officersmaintain that the two sections, 84-406 and 84-3805, arenot controlling since the only importance of section 84-406 isthat it sets the second Monday inJuly 

### as the deadline forreporting to the statedepartment of revenue and section 84-3805 only concerns the time for fixingrates. Respondents urge that the 1972 Constitution omittedthe former prohibition against changing a county official's salaryduring his term of office, and section 25-609.1 imposes a clear legal duty tocompute the new taxable valuation of a county prior toJuly 1. This, respondents contend, would allow salaries tobe current with respect to demands of the office and would avoid a lack of uniformity and even influenceby the commissioners asto whether to increase or decrease salaries. We agree with respondents' position. Traditionally, county officialshave been paid according to a salary formula based on the taxable valuation and population of the county computed just prior to their election. Under theMontana Constitution of 1889 a county official could not receive a pay increase during the term of his office. The net resultwas that
some county officerswere paid more, or on a different pay scale than others, since they were elected ata different time and there were, consequently, different tax valuations. The 1972 Montana Constitution removed this restriction and the 1973 legislature upgraded the county salariesby amending section 25-609.1, R.C.M. 1947, and settingthe salaries at thebeginning of each fiscalyear. This change imposes a clear legal duty to compute the taxable valuation prior toJuly 

### 1, the first day of the fiscalyear, and the effective date of the legislative amendment. The time for assessment and computing taxable valuation set out in section 

### 84-406, R.C.M. 1947, isatany time between the first Monday inMarch and the second Monday inJuly. The second Monday in July 

### is only important by virtue of the required reporting of this valuation to the State Department of Revenue. In addition, the findings of fact of the district court inthismatter indicate that itwould be possibl-e for this valuation tobe acted upon by defendant Board of County Commissioners on orbefore July 1,without waiting until that last possible moment before the second Monday in July. Under the 1889Montana Constitution, the legislature followed
a clear policy of insulating an officer's compensation from anyalteration, for political or other reasons, during his term of office. Art. V, Sec. 31, 1889Montana Constitution; Section 25- 

### 609, R.C.M. 1947; Shubat v. State of Montana, 157 Mont. 143, 484 P.2d 278. Thus, a public officerwas denied a pay raise during his term of office. Montana has since abandoned such an arbitrary approach. The legislatureand the electoratehave removed certain restrictions to allow salaries of officers tobe responsive to changes inthe amount of work required of their offices. The legislature has chosen a salary formula based on population and taxable valuation of the county. These yardsticks are fair
measures of the amount of work required of these officers. But touse the taxable valuation of the previous year as appellant argues, whether it be larger or smaller, would defeat thewhole purpose of the constitutional and legislative changes; it would be impossible for salaries toachieve a current and responsive level. Every public officerwould receive his pay raise or decrease
one year later. By choosing July 1, the legislature has attempted tomake allsuch changes consistent with the start of the county fiscalyear. Appellant's argutrent would further allow for the very abuses this Court sought to quell in Shubat v, State of Montana, 157 Mont. 143, 150, 484 P.2d 278. There this Court said, citing from Jackson
v. Porter, 57 Mont. 343, 188 P. 375:

'I* ;k 

# * the sole purpose of the constitutional limitations 

### is toremove from the sphere of temptation every public officerwhose office iscreated by the Constitution and whose official conduct in the remotest degree might be influemedby thehope of reward or the fear of punishment." To allow, as appellant urges, the taxable valuation tobe determined eitherbefore or after the date of fixing these salaries would open up the possibility of exerting influence by increase
or decrease of salary. Certainly the constitutional restriction against change has been lifted, but undue influence inbranches of stateand local government isnever tobe tolerated.Appellant in 

### itsbrief, citing 35 Attorney ~eneral's Opinions, No. 33, states that if the taxable valuation is not completed until afterJuly 1of the fiscalyear, then the statutory schedule 

## -- -- in effect on the firstday of the fiscal year must be used. That opinion was issuedjust prior tothe filing of the instant suit and isdeserving of our consideration; however, we feel itis in
error on two points. First, the salary schedule discussed in secti-on 25-605, R.C.M. 1947, 

### isnot the amount of the salary paid, but the formula for its determination. This formula or schedule isonly open to legislathe changes and isn3t affected by when the taxable valuation of the county isfixed. The attorney general's opinion infers the schedule itself 

### is subject tochange, which we feel isclearly
erroneous. Second, that same opinion infers that valuation isnot due until the second Hmday inAugust under section 84-3805, R.C.14. 1947. However, this section is setting out the time for fixing the rate of taxation, not the taxable valuation, which isset out as on or before the second Monday in July. Section 84-406, R.C.M. 1947. The judgment of the district court is affirmed.

Justice 

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We Concur:

Chief Jusice

Justices.