(December 28, 1899.)

#### REYNOLDS v. BOARD OF COMMISSIONERS OF ONEIDA COUNTY.

[59 Pac. 730.]

Constitutional Law — Delegation op Power. — A power or function vested in one department body, board, or tribunal by express constitutional provision, cannot be delegated by sucb department, body, board or tribunal to another department, body, board or tribunal.

Same — Fixing Salaries op County Oppicees. — Act of March 2, Í899, provides a uniform basis, reasonable compensation, throughout the state, for the fixing of salaries of county officers; is general in its operation; does not delegate legislative functions, does not contravene the constitution, and is a valid act. *Stoolcey v. Board of Bounty Commrs.,*ante, p. 542, 57 Pac. 312, affirmed.

Appeals pbomc Action op Commissioners. — The action of the board of commissioners in fixing salaries of county officers, under act of March 7, 1899, is not final, but subject to appeal.

Same — -Findings op Fact.- — -Upon trial of appeal from order of a board of county commissioners, findings of fact should be made, unless waived as provided in section 4405 of the Revised Statutes. Judicial Discretion. — When a board of county commissioners, in exercising a discretionary power, make an order, such order will not be disturbed on appeal, except in case of clear abuse of such discretion.

(Syllabus by the court.)

APPEAL from District Court, Oneida County.

D. W. Standrod and J. *W.*Eden, for Appellants.

It is true tliat our supreme court has suggested in the case of *StocTcey v. Bowrd of County Commrs.,*ante, p. 542, 57 Pac. 312, that an appeal would lie from these orders, the same as in other cases. The question of an appeal from an order of this character was not before the supreme court in that case, however, and we beg leave to submit that an appeal was not contemplated by the statute known as the “county salary bill,” and that appeals from orders of this character have never been allowed by the courts, even under a statute so broad as the provisions of our Revised Statutes, section 1776, providing for appeals by “any person aggrieved.” The power conferred upon the board of *788commissioners by the salary bill is in the nature of legislative —not in a literal sense legislative, but in the broader sense— and when the board under this statute fixes the salaries, it acts as a legislative body thus far and does not act judicially. The distinction between a judicial and legislative act is well defined. The one determines what the law is and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it. (Throop on Public Officers, sec. 532; *Mabry v. Baxter,*11 Heisk. (Tenn.) 682.) The action of the commissioners in fixing the salaries, was essentially the exercise of a legislative power, because they established by their order what the law should be in the future, and not what any officer was entitled to for services already rendered. (Cooley’s Constitutional Limitations, 113; *Nebraska Tel. Go. v. State, 55*Neb. 627; *Stockey v. Board of County Gommrs.,*ante, p. 542, 57 Pac. 312; *Smith v. Strother,*68-Cal. 194, 8 Pac. 852.) The power to fix the salaries, being a legislative function, cannot be given by the legislature to the judiciary. *(Norwalk St. By. Go/s Appeal,*69 Conn. 576, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794; *Shepherd v. Gity of Wheeling,*30 W. Va. 479, 4 S. E. 635.) An appellant, to obtain a reversal in cases which involve the exercise of discretion must show the denial of a legal right. (2 Eney. of PI. & Pr. 410; *Nowell v.*Mills, 53 N. T. 322.)

George E. Gray and Dietrich, Chalmers *&*Stevens, for Respondents,

“Sec. 1776. An appeal may be taken from any order, decision or action of the board while acting in an official capacity, by any person aggrieved thereby, or by any taxpayer of the county when any demand is allowed against the county, or when he deems any order, decision or action of the board illegal or .prejudicial to public interests.” *(Stookey v. Board of County-Gommrs,*ante, p. 542, 57 Pac. 312.) But counsel say the expression of the court in *Stookey v. Board etc.*was unneccessary* and is mere *obiter.*Tn one sense possibly it was not necessary, but in no real sense is it *obiter.*Essentially it is a vital part of the decision. The court had under consideration the constitutional-*789itv of the act. The inference from a careful reading of the decision is irresistible that the court reached the decision that the act was not violative of the spirit of the constitution, upon the theory and condition, and not otherwise, that the power conferred upon the board was not absolute, unreasonable and despotic, but a discretionary power, to be exercised in good faith and in reason, and subject to review by the courts and to such theory and condition the court concluded it best to give definite expression,

QUARLES, J.

— At the general election in 1898, D. J. Reynolds was elected to the office of clerk of the district court, and ex-officio auditor and recorder, in and for Oneida county; P. C. Bingham was elected to the office of'sheriff of said county; J. E, Dailey was elected to the office of superintendent of public schools of said county; and Alice Thews was elected to the office of treasurer of said county. At the April meeting, 1899, of the board of county commissioners in and for said county, said board made an order, under the provisions of the act of March 7, 1899 (Sess. Acts 1899, pp. 405-407), fixing the salaries of the different county officers in and for said county. The salaries of the officers in question were fixed by said order as follows, to wit: Clerk of the district court and *ex-officio*auditor and recorder, at the sum of $900 per annum; sheriff, at $900 per annum; superintendent of schools, at $500 per annum; and treasurer, at $500 per annum, — for 1898 and 1899. From said order four several appeals were taken by the officers above named, respectively, to the district court, and by stipulation it was agreed at the commencement of the hearing in the district court that said four appeals “might be tried together, and that the judgment entered by the court might modify or affirm the order of the board of commissioners appealed from so as to cover the amount of salary to be allowed the respective officers involved in said appeal, as though each appeal had been heard separately, and a separate judgment entered in each thereof.” The district court rendered judgment that the said order of the board of county commissioners be modified as follows, to wit: “The decision of the court is that the order of the board of county commissioners hereto appealed from is remanded to said board with *790instructions that they modify said order by striking out from the salary of county treasurer the figures ‘$500/ and insert in lieu thereof the figures ‘$700’; strike out from the salary of sheriff the figures ‘$900/ and insert in lieu thereof the figures ‘$1,400’; strike out from the salary of the clerk of the district court the figures ‘$900/ and insert in lieu thereof the figures ‘$1,500’; strike out in the salary of the superintendent of schools the figures ‘$500’, and insert in lieu thereof the figures ‘$800.’ Each party to this action to pay his own costs.” From said judgment of the district court the appellants, the board of county commissioners, appeal to this court.

The appellants contend that the judgment should be reversed four different grounds, viz.: 1. Because the court erred in overruling the objection of the appellants to the introduction of any evidence; 2. Because there are no findings of fact that sup-the judgment; 3. That the power to fix the salaries in question is a legislative function, and therefore not reviewable by courts; 4. That in making the orders appealed from the board of commissioners were exercising a discretionary power, and violated no law, and therefore the said orders could not be reviewed upon appeal. We will discuss the different questions involved without reference to the order in which they are stated.

It is a well-settled rule that a power or function vested solely in one department, body, board or tribunal by express constitutional provision cannot be delegated by such department, body, board or tribunal to another department, body, board or tribunal. The legislature cannot delegate the functions expressly vested in it by the constitution to boards of county commissioners or to the judiciary. If, as contended by appellants, the act in question, popularly known as the “Salary Bill,” delegates to the board of county commissioners in the various counties a legislative power in the matter of fixing the salaries of county officers, then the said act should be held unconstitutional and void. But we do not so consider the act. It does not vest or attempt to vest in the board of commissioners the power to make law. The act in question is of general and uniform operation throughout the state. It fixes the basis upon which the salary of county officers in each county in the *791state is to be fixed. That basis is the same in each, and is reasonable compensation for the services to be performed, taking into consideration the character of the services, amount of labor to be performed, and such surrounding circumstances as affect the cost of living and supporting one’s self at the county seat of his county compatible with the dignity of the office to which he has been elected. We do not think that the legislature intended that any of the officers whose interests are involved should Teceive such remuneration as is paid to a common laborer, but that their compensation should be reasonable, taking into consideration all of the circumstances. The duty which devolves •upon the county commissioners under the act in question is a delicate, and will generally be found to be a difficult, one. They ■are called upon to exercise a judicial discretion, and to act so as to carry out the intent of the statute, with due regard for the rights and interests of both office-holder and taxpayer. Their action involves judicial discretion. They act, not as a legislative body, but *quasi*judicially. More or less trouble will grow out of their actions under said statute. They have conflicting interests to consider and determine. On the one hand, office-holders will desire large salaries, while the taxpayers will desire the salaries fixed as low as possible. But the interests of all — both office-holder and taxpayer — demand that salaries should be fixed at such sums as will reasonably compensate each officer for his time and labor, taking into consideration the qualifications necessary to be possessed by each county officer, and the responsibilities of his office. All of these matters should be carefully in-westigated and determined by the board of commissioners. The board should exercise the discretion vested in it with due regard for the rights of all parties concerned. It was not intended the legislature that the action of the board of commissioners should be final, or that such board might act arbitrarily, through mere whim or caprice. Section 1176 of the Bevised Statutes, ■as amended by act-of February 14, 1899 (Acts 1899, p. 248), provides that “an appeal may be taken from any act, order or proceeding of the board, by any person aggrieved thereby, or by any taxpayer of the county when any demand is allowed against the county or when he deems any such act, order or proceeding *792illegal or prejudicial to public interests.” And there is nothing in the salary bill (the act under consideration) which excepts it from this general rule. Hence we are compelled to hold that it was the intention of the legislature in passing the act in question that appeals should lie from orders made by the board fixing salaries of county officers. In entertaining such appeals, the courts are not exercising legislative functions. It was proper for the court to hear evidence, and necessary for it to do so.

There are no formal findings in the record, such as are contemplated by section 4405 of the Eevised Statutes. We find an expression of the opinion of the trial judge in the record, which is designated “Decision, findings, and conclusions,” and which ends with the order hereinbefore quoted, as follows:

> “This case is an appeal from the order of the board of county commissioners fixing the salaries of certain county officers. The point involved in the appeal is whether the board of county commissioners abused the discretion invested in them by the legislature in fixing the salaries of said county officers. The reason for the legislature delegating this power and discretion to the board of county commissioners was the fact that the different, counties of the state, as to matters of territory, population, and expense of running the same, are so widely different that no. general legislation could cover the subject in a way that would be right and just to all the counties, and for the best interests of the genera] public. The business of the counties must be carried on by the officials selected by the people, and the policy of the law is that such compensation should be paid them as will insure the efficient, business-like, and economical administration of the affairs of their respective offices in a manner provided by law. The law requires that the county officers shall keep their offices open daily between certain hours, and that certain ones, shall have their residence at the county seat. The law contemplates that the time and services of the county officials shall belong exclusively to the public within official hours. Hence they are effectually cut off from other avocations. It is not the policy of the law, the wish of the people, or in the interest of public-economy that the compensation of county officials should be placed on a niggardly footing, totally inadequate to the decent *793administration of public affairs. Neither is it the policy that these officials should be allowed extravagant salaries, beyond all .reason. But the intention of the legislature was that the boards of county commissioners in the various counties should take inte consideration the work and time consumed in the various offices, the expense connected with the same, the self-sustaining revenue therefrom, the responsibilities attached thereto, the bonds under which the parties are placed, and all the circumstances and conditions connected therewith, and from all these determine what .would be a proper and just compensation for their services. The question is not what men could be hired for to perform these services, for men cannot be hired to fill these offices. They are elected by the people; are representative men, in whom the people have confidence, and whom the people have said should ad.minister their public affairs during the ensuing two years. The question to be determined is what amount of annual salary shall be paid them for decently, respectably, and officially representing the welfare of the county, so that they may not only live and breathe out an existence, but also that they may derive from their positions a fair and reasonable profit, the same as ordinary mortals have a right to expect in other affairs of life. The public expect these officials to give their time and best energies to their public duties, and the people, in return, expect they shall have due and proper compensation therefor. Stop all extravagances in county matters; let honesty, fidelity, and capability be the paramount considerations; pay your county officials living salaries, commensurate with their duties and responsibilities— and the people will say ‘Amen to this kind of a programme, for it is right, and the true policy of the law.

> “After due consideration of the evidence introduced in this case, both by appellants and respondents, the court has arrived at the following findings of fact and conclusions of law in the appeal herein submitted: 1. That the county commissioners fixed the salaries of the appellants herein on the eleventh day of April, A. D. 1899, respectively, as follows: Treasurer, $500; sheriff, $900; clerk of district court, $900; superintendent of schools, $500. The order does not state if these salaries were annual, but the court infers such was the intention. 2. The *794board of county commissioners did not take into consideration, as they should, the income derived from the offices for the county, the time consumed, and nature of the labors and responsibilities attached thereto, but based their action on a rigid zeal for economy to the taxpayers, that did injustice to the appellants, and a policy that would result, if persisted in, in placing the .affairs of the county in incompetent hands, and result in the officials shirking their duties. The commissioners did not use their discretion in this matter as wisely and prudently as they should.”

This paper might be regarded as findings of fact and conclusions of law, but, as contended by appellants, they are not sufficient. We think the trial judge evinced a correct and comprehensive view of the object of the statute under consideration. The true question to be determined on the appeal is, Did the board of commissioners abuse the discretion vested in it in making the order in question P To determine this question, it was necessary to hear evidence bearing upon the numerous points to be considered. And findings, when not waived as provided by section 4405 of the Revised Statutes, *supra,,*should be made, showing the facts upon which the abuse of discretion is predicated. The action of the board should not be disturbed unless there is a clear abuse of discretion shown, which cannot be shown merely by the opinion of the district court.

Appellants argue that no law was violated by the board, and that the respondents had no legal rights to be violated at the time the salaries were fixed; that whatever legal right they have to compensation was created by the order appealed.from. We do not agree with this contention. The act in question vests in each county officer in the state the right to compensation which is, within the maximum and minimum prescribed, reasonable, considering the circumstances surrounding and affecting each office. Each taxpayer and office-holder has the right to have the board of commissioners in his county exercise its discretion in the matter of fixing such salaries as will afford to each officer reasonable compensation, thus protecting public interests. Each taxpayer also has a legal right to have the county treasury protected against an abuse of the discretion vested in the board, by way of profligate extravagance. If the theory of the appellants be *795correct, that the action of the board is final and cannot be reviewed by the courts, the taxpayers in one of the smaller counties may see the salaries fixed at the maximum, without regard to the amount of labor to be performed, or other circumstances, contrary to public interests, and be powerless to remedy the wrong. No such thing was contemplated. The theory upon which the case of *Stookey v. Board of County Commrs.,*ante, p. 542, 57 Pac. 312 — which is hereby affirmed — was decided, is that the boards of commissioners must, within the discretion Tested in them, allow reasonable compensation by way of annual salaries, when acting under the provisions of the act in question. It was only upon the theory that we could hold said act to be general and not special legislation. TJnder this theory, the act is uniform in its operation throughout the state. Under any other theory, we would be compelled to hold it local and special, and inhibited by the constitution. While it seems that the board of commissioners fixed the salaries in question very low, and while the amounts fixed by the district court do not seem extravagant, yet it does not sufficiently appear from the record before us that the board of commissioners abused its discretion in making the order appealed from. The cause is remanded to the district court for further proceedings consistent with the views herein expressed; each party to pay its own costs upon this appeal.

Huston, C. J., and Sullivan, J., concur.