Montana Attorney General Opinion 15-387

Opinion No. 387 Public Officers - Compensation Coroners-Salary-Fees HELD: Chap,ter 59, Laws of 1933, is intended to apply to officers elected or appointed prior to enactment, inso- far as it does not ,'iolate the Constitu- tion, Article Y, Section 31. Changing the compensation of a pub- lic officer from fee basis to salary basis is not necessarily increaSing or decreasing his compensation, Unless such effect is apparent it will be pre- sumed that the Legislature and GOY- ernor, before the passage of the Act. found to the contrary. Xovember 14, 1\)33. You haye submitted an opinion from the County Attorney of Silver Bow County to the effect that Chapter 5n, La ws of 1933, fixing the salary of cor- oners at Thirty-three Hundred Dol- lars per annum, in lieu of fees, in counties haying a population of Fifty Thousand or more, applies to the pres- ent Coroner of Silver Bow County who was elected and took office prior to the said enactment. This chapter expressly amends Sec- tion 4922, R. C. M. 1921, repeals all conflicting acts, (Section 2), and de- clares that it "shall be in force and effect from and after the 31st day of ):larc11, 1933", (Seotion 3). The act changes the milage from ten cents to seven cents per mile and permits only one fee of Five Dollars when two or more inquests are held on the same day. S'ince, without Section 3, the act would be effective on the first da~' of .July, it is m'ident that the Legislature intended -that the act should appl~' to present officers insofar as it does not violate the Constitution, Article Y, Section 31. which forhids increasing or decreasing the salaries of any pub- lic officers after their election or ap- pointment. It has been held, however, that when the compensation of an officer is changed from a fee basis to a salary hasis and it is not apparent that any increase in compensation will result. the necessary presumption in fa VOl' of the Legislature will be indulged in, that no increase will result. (46 C. J. p. 1026, Section 265; Keith Y. Ramsey, 34 Cal. A. 167 Pac. 408: Galeener Y. Honeycutt, Cal.. 159 Pac.' 595; Crocket Y. Mathews, Cal., 106 Pac. 575; Smith Y. Mathews, Cal., 103 Pac. Hl!J: Eldet· Y. Garey, Cal., 127 Pac. 826.) Wl1ile the California ConstJitution forbids an increase, yet, if the princi- ple announced by the California Court is correct. the converse must neces- sarily also be true, to-wit: that such a change of basis of compensation will not result in a decrease in compensa- tion. It was said in Smith Y. :Math- ews: "Upon this assumption we af- firmed the judgment of the superio]' court, holding, in accordance with t-ilC doctrine of Ste"enson v. Colgan. 91 Cal. 649, 27 Pac. 1089, 14 L. 'R. A. 45!), 25 Am. St. Rep. 230, that the consti- tutionality of an act of the Legisla- ture is always a pure question of law, and that when the right to enact a la w depends upon the existence of a fact the passage of the act implies. and the conclusi"e presumption is, that the Goyernor and the Legislature haye performed their duty, and ascertained the existence of the fact before enact- ing or appro\'ing the la ,\'-a decision which the courts have no right to question or review." For the foregoing reasons we con- cur in the conclusion reached hy the Connty Attorney.