Montana Attorney General Opinion 15-110

Opinion No. 110 County Officel's--JSala.Iies-Col'rupt Pl'actices Act-Public Policy. HELD: Acceptance of less than the :>alary fixed by statute is contrary to public policy. March 13, 1933. You IUl\'e submitted the following question: "'Vill it be against the law for the cuunty officers to reduce their salaries?" Attorney General L. A. Foot, in an upinion found in Yolume 14 Opinions of the Attorney General, page 2i9, held that a candidate fur public office vio- lates the Corrupt Practices Act, if he promises or agrees that if elected he will dmw only a part of the salary at- tached to the office, or refund into the treasury a part thereof. This was held to be in direct violation of the Corrupt Practices Act, Section 10i96 R. C. M. 1!)21. r am unable to see a great deal of difference in principle between the case where a mun offers to' tuke less thun the salary provided by law in order to obtain office, and the case where a man offers to take less than the salary pro- \-hled by law in order to retain office. The l\Iassachusetts court ill Ah'ord Y. Collins, 20 Pick. 418,428, in speaking of the offer to take less than the salul'Y allowed bv luw. said: "It leads to the election of incompetent uncI unworthy officers, und on their purt to extortion and fmudulent pmctices to procure a rem un em tion for the price paid. Nor can we disco,er u difference in princi- ple between the sale of un office und the disposing of it to the person who will perform its duties for the lowest compensution. In our opinion the same ohjection lies to both". The legisluture, in fixing certain sal- aries for certain county officers, doubt- less had in mind fixing a salary high enough to attract to such offices the most worthy. Personal fitness should be the test of a man's right to hold of- fice anrl this involves goo(l character. intellectuul ability and -training, social standing and good habits. It is pre- sumeil that the salaries provided by law are necessary to obtain men of the highest personal fitness. and, in my opinion it would be contrary to public policy to permit cour.ty officers to ac- cept less than the regulur salary as it would tend to inattention to official duties, inefficiency and corruption. 'l'he sulary prescribed by law is pre- sumed to be required in order to ob- tain men of the highest personal fit- ness. .Justice Brewer. while a member of the Supreme· Court of Kansas, (after- wards a member of the Supreme Court of the United States) in the case of State v. Elting, 2f) Kan. Rfli. used the following pertinent language: "Per- sonal fitness--and in that is included moral character, intellectual ability. social standing, habits of life and po- litical convictions - i,.; the single test which the law will recoguize. That which throws other considerations into the scale, und to that extent tends to weaken the power of pm-sonal fitnes;;;, should not be tolera ted. It tends to tum away the thought of the \'oter from the one question which should be paramount in his mind when he depos- its his ballot. It is in spirit at leust, hrihery. more insidious, und therefore more dangerous than the grosser form 86 OPI~IO~S OF THE ATTOHXEY GEXEHAL of directly offering money to the vot- er". See also Thmop on Public Officers, ~edion 52, where the text writer said: "In the second place quite independent- 1.\' of any corrupt bargain, a person ap- pointed to an office of this description, is disabled, on grounds of public policy, frolll dealing with his' fees because he is considered to require them to enable him to uphold the dignity and perform. the duties' of his office. Public policy prohibits any alienation or incum- hrance of such fees". Citing: Liver- pool Y. 'Vright, 1 Johns Oh. 359, 28 L. .T. CII. 868; 5 JUl'. U. S. 1156'; Followed in Dublin v. Hayes, 10 Irish H. C. L. 226. See also Throop on Public Officers, Section 452. It is illY opinion further that an ac- ceptance by an officer of less than the salary allowed by statute would not prevent him from recovering the bal- ance of his salar~' and an agreement on his part to accept lE'SS would not be enforceable because of lack of consid- eration. See 46 C. J. 1027, Section 275: "The acceptance of less compensation than that established by law for the office does not estop an officer from subsequently claiming the legal com- pensation." (But, see opinion No. 175, this vol.)