CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of South Dakota

QUIGG, Respondent, V. STANLEY

DAKOTA, Appellant.

(172 N. W. 506).

COUNTY, SOUTH

(File No. 4469. Opinion filed May 13, 1919.)

Salaries-County Auditor-Division of County, Salary of Auditor of Parent County Thereafter-Statute, Suspension, Repeal, Effect.

Under Laws 1913, Ch. 315, providing that whenever salary of any county officer is based upon assessed valuation of property in his county, such valuation, for purpose of determining his salary thereafter" and until March 1st, 1915, shall be figured upon the basis" of the 1912 assessment, etc., provided, that if in any county the ratio of its valuation for any year subsequent to 1912, as compared with the valuation of the property in this state, increase above the average increase of valuation for subsequent years within the state, then the percentage of its increase above the average increase in valuation within the state be added to the assessment of such county for 1912 as basis of fixing and regulating salaries of such county officers, which act took effect March 3, 1913; and Laws 1915, Ch. 128, approved March 5, 1915, containing the identical provision contained in Ch. 315, save that the words "and until March 1st, 1915," are omitted; and Laws 1907, Ch. 100, concerning the vote on the question of division of a county, and providing that the portion of such county in which county seat is located shall, until organization of other portions thereof into new counties is perfected, for criminal and civil purposes, remain a portion of the original county; held, that by reason of said acts of 1913 and 1915, Laws 1909, Ch. 254, relating to fixing and regulating salaries of county auditors and payment thereof, was suspended by the act of 1913 until March 1st, 1915, and was repealed by act of 1915, and a new and different basis substi1 Vol. 42, S. D.

tuted for salaries of county auditors; that the Legislature, in fixing salaries under the new system, adopted the basis of salary for 1912, and provided for an increase figured on basis of the average percentage of increase in valuation on property in the state over the valuation for 1912, adding that percentage to the salary instead of fixing salary upon basis of county assessment, as was done under said Laws 1909, thereby (under the acts 1913 and 1915) guarding against an increase by reason of enactment of the tax commission law. He'd, further, that it cannot be inferred from said statutes that a decrease of salary was intended in case of division of a county. Held, further, that, plaintiff, auditor of Stanley County; who was elected at the general election in 1914 at which election resulting in the division of such county was had, and assumed office March 1st, 1915, was entitled to the same salary paid the auditor of that county for 1912; that he was not entitled to an additional salary.

Whiting, J., dissenting.

Action by James A. Quigg, against Stanley County, South Dakota, to recover a claimed balance of salary as county auditor. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

F. W. Lambert, and R. D. Walker, for Appellant.

Gardner & Churchill, for Respondent.

SMITH, P. J. The question presented on this appeal is whether plaintiff, as auditor of Stanley county, was entitled to a salary of $100 per month or a salary of $125 per month. The controversy results from the division of Stanley county by a vote taken at the general election in 1914, and the creation of two new counties, Haakon and Jackson, out of the territory formerly embraced in Stanley county. Plaintiff was elected at the same election and assumed his office on March 1, 1915, as provided by law. The board of county commissioners, on presentation of his claim for salary at the rate of $125 per month, allowed and he was paid that amount for the month of March, 1915. Each month thereafter a claim for the same amount was presented, but the board declined to allow an amount in excess of $100 per month. This action is to recover a balance of $500 claimed as accruing during the 20 months of plaintiff's subsequent incumbency as auditor.

that:

Chapter 315, Laws 1913, approved March 13, 1913, provided