The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-10-17
STATE SUPREME COURT
Motion for Rehearing in the
Daynes Case Denied.
ACTION CONSTITUTIONAL
Points Brought Forward by tie Attor-
ney General Not Deemed OF SUM
Client Force to Grant the De-
sired Rehearing.

Helena, Oct. 16.-The supreme court
to-day denied a motion for rehearing
of the mandamus case of County Sur
veyor Daynes of Granite county against
the BOARD of county commissioners to
conpei the board to recognize him as
tne regularly elected and qualified SUI
perlntendent Of county roads, regard
less OF the action OF the last legislature
IN enacting law doing away with
that office. Last Monday the court de-
clded that the action Of the Legislature
was constitutional, as it simply took
from the surveyors emoluments and
duties placed upon them by a previous
legislature, without In any manner i'm
pairing their constitutional rights. Last
week Attorney General Nolan made
motion for a rehearing, citing some
points he deemed of vital Importance.
These the court considered In an opin-
ION by Associate Justice Pigott, con-
Cured in by the other two justices, but
does not deem them of sufficient bear
ing upon the case to warrant a rehear-
ing. In the course of it's opinion the
court says:
Counsel advance the view that the
legislative assembly, after adding
duties and providing compensation for
them. affecting the surveyor then in
ONCE, may not take away such duties
and attendant emoluments from sub
sequent surveyor, unless it be done be-
fore the election of such successor; in
other words, that the surveyor is en-
titled to discharge the duties and re-
ceive fees prescribed allowed at the
time OF his election, and that statute
purporting to curtail such duties or to
relieve him of some of them is a law
diminishing the emolument after his
election. We are unable to approve Of
the distinction attempted to be drawn
Inc office OF county surveyor was Gre
ated by the constitution, but his duties
and emoluments are matters entirely
of legislative control, subject to the
prohibition of the fundamental law
against the increasing or diminishing
OF his salary or emoiument after his
election. The legislative assembly may
from time to time increase or lessen
the duties required to be performed by
the officer; it may allow compensation
for the additional duties; 1t may also
lessen the duties and deprive him of
the emoluments attendant upon the
performance of the duties of which he
is relieved. OF course, if at the time of
his election the statute prescribed
certain salary designed to cover all
services that the officer, as such, might
perform, then it is not within the COM
potency of the legislative assembly to
increase such salary nor to diminish 1t,
while the obligation still rests upon the
officer to perform all, or any, Of the
services enjoined upon him at the time
of his election. Where, however, the
statute in force at the time the sur
was elected exacted from him the dis
charge Of certain duties for which GER
tain fees were allowed, as in the case
at the bar, the legislative assembly
may at any time relieve him of the
duties and deprive him OF the compen-
sation allowed; for 1t is not the inten-
ton of the constitution to prohibit a
lessening of the duties Of such an off,
GER as the county surveyor after his
election. even though the effect be to
curtail or lessen his total income.
Where such officer is paid by fees
or per diem compensation measured
by the services performed and the time
employed. his emoluments are not,
within the meaning of section 81 of art.
icle of the constitution, diminished by
a statute taking effect after his cleo
ton that relieves him of the obliga-
ton to perform the duties resting lpon
him and destroys the compensation
which had heretofore been prescribed
for their discharge. We think a care
full reading of the original opinion, the
language of which is, perhaps, not as
clear as might be desired, will disclose
that the decision therein announced is
based upon the doctrines here referred
to; and that it was not intended to de-
clare that the new duties imposed by
the act of 1897 were new, additional or
extraordinary in respect of the plain
tiff, who was elected in 1898. Comments
upon the fact that the Office of road su-
pervisor is of legislative, not constitu
tional. creation. were indulged in for
the purpose of illustrating the power
of the legislative assembly to abolish
that office and transfer Its duties to
the county surveyor
Jay P. Lee, Butte attorney, was adj
mitted to practice in the courts of this
state upon the motion of ]. B. Clay
berg.