The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-06-06
1t IS UNCONSTITUTIONAL
Judge Woody's Decision on the
Road Law.
A RAVALLI COUNTY CASE
An Incumbent of an Office Created by
the Constitution Cannot Have
His Salary Diminished
While in Office.
IALLI COUNTY CASE

delivered his decision in the matter OF
Ravalli county VS.. John Golden, the
same being the county surveyor case,
and which has been watched with in
terest by every county in the state,
bearing, as it does, on the effect ana
constitutionalty of the road law passed
by the last legislative assembly, and I'M
der which the care and charge of the
roads and bridges of a county are
taken from the county surveyor and
given to road supervisors whose cleo
ton is provided for by the same law. 1t
will be remembered that an opinion of
Attorney General Nolan was to the
effect that the new law was unconsti-
tutional so far as it effected the present
incumbents, at least, while the county
attorney of Cascade county held to the
opposite. Judge Woody's decision is
given in full below:
This is an action brought by plaintiff
against the defendant for the possession
of certain road tools and implements
belonging to said plaintiff county, re-
ceived into his possession as county
surveyor of said Ravalli county, and
which have been used by him in keep
Ing up dIlu iepdiilIS Lie publiS loodS III
said county. 1t is an action in the ma
ture Of claim and delivery. To the COM
plant an answer was filed. A stipula-
ton, or an agreed statement of facts
signed by the county attorney for
plaintiff, and by O'Hara & Myers, attor-
neys for the defendant. The agreed
statement of facts is, in substance, as
follows:
That the defendant, John Golden. is
ha I,,1,,
county surveyor of said Ravalli coun-
ty, duly elected at the election held in
November. 1898 for term of two years;
that he gave the bond and took the
oath of office, as required by law for
such officer, and on the first Monday
in January, 1898, entered upon the dis
charge of the duties Of said office, and
now is such officer and entitled to hold
such office and discharge the duties
thereof and receive all of the lawful
| fees. profits and amOlumentS thereof
| for the term of two s'ears from the date
| last aforesaid, and that as such officer
| received into his possession the said
| road tools and Implements mentioned
and described in plaintiffs complaint,
| and that he claims the right of posses
| sion of said property by virtue of his
| office as such county surveyor, The
contention Of the plaintiff is that the
act of the sixth session Of the legisla-
| ture, entitled An act to provide for the
| election of road supervisors, to define
and regulate their powers and duties.
| to fix their compensation, and to re-
peal an act entitled AN act to define
| the powers and duties of county survey
ors, and provide for their compensation
and to abolish the office of road super
| visors." approved March 4th, 1897,
which said act Of the Sixth Legislature
was approved March 8, 1899, Session
laws of 1899, page co. took effect upor
the date of its approval. and is now il
full force and effect and deprives tn,
defendant of the right of possession o
said property.
THE defendant contends that the ac
approved March 3. 1899. is not applica
BILE to, nor does it affect the defendant
or the duties or the emoluments of hi
said office, during the term for whicl
he was elected, in November, 1898, 70
the reason that it takes away from hin
and decreases the profits and emolu
ments of his office, as they existed un
der the law in force at the date of hi
election, and at the time he assumed
the duties of his said office, and is il
violation of section 81, article 5, of tn
constitution.
TT is further mutually agreed tina
if the law of March 3, 1892 is in fore
and effect, then the plaintiff is entitle
to the possession of all of the propertie
mentioned and described in plaintiff
complaint; but if said law is not i
force, and the law of March 4, 1897,
in force, then the defendant is entitle
to the exclusive possession of all of sal
property as such county surveyor.
From the foregoing it will be see
that the only question for the court t
determine is, which of the two law
are now in force, and in the opinion q
the court that is not a difficult questio
to decide. 1t is mutually agreed tina
if the act of March 8. 1892 took effet
upon its approval, and is now in flu
force and effect it diminishes the emo
uments of the defendant for the tern
for which he was elected and is no
, serving. Section 81 of article 5, of tn
constitution, provides Except as otf
, erwise provided in this constitution, n
law shall extend the term of any publ
\ officer, or increase or diminish his sa
airy or emoluments after his election {
appointment; provided. that this sha
: not be construed to forbid the legisls
tive assembly from fixing the salarie
or emoluments of those officers fir!
elected or appointed under this const
tuition, when such salaries or emoll
ments are now fixed by this constitl
ton
THE court does not find anywhere
provided and certainly the provision
section 81. supra, does not apply to II
0 defendant, or to the office of which
is II present an incumbent.
Section 81. supra, applies to all pull
lie officers, and the question then i!
Is the office of county surveyor a put
- lie office and the incumbent a publ
3 officer?
=. Section 5, article 16 of the constitl
!, ton, in direct and positive terms, crea
3, ed the office of county surveyor an
. fixed the term Of said office at NV
years, and, being an office created /
the constitution, there certainly cam,
A be any question as to its being a publ
- office; and, being a public office, no la
can be legally passed by the legislatu
which would increase or diminish Il
ID salary or emoluments' OF the incur
L bent of such office during the term
which he was elected or appointe
without conflicting with section 81, art
Gle 5, of the constitution, and Wou
therefore be unconstitutional, or
lie least, inapplicable to such officer du