Montana Attorney General Opinion 17-72

Opinion No. 72. Public Officers-What are Probation Officers-Salary-Increase in. HELD: Probation officers are public officers. and their salary cannot be increased during their tenure of of- fice, March 30, 1937. Board of County Commissioners Silver Bow County Butte, Montana Attention: Emmett P. O'Brien, Chair- man Gentlemen: You have requested OP1l11011' as to whether or Ilot the Probation officers 76 OPINIONS OF THE ATTORNEY GENERAL now serving are entitled to the in- creased salary provided by Chapter 117 of the 1937 Session Laws, in view of Article V. Section 31 of the State Constitution. "Except as otherwise provided in this constitution, no law shall ex- tend the term of any public officer or increase or diminish his salary or emolument after his election or ap- pointment." The question to be decided is wheth- er or not probation officers are pub- lic officers. In the case of State ex rei Barney v. Hawkins, 79 Mont. 506, the Court lays down the following rules, in order to determine whether an office is a public office, or an officer a public officer. "(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must pos- sess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legisla- ture and by it placed under the gen- eral control of a superior officer or body; (5) it must have permanency and continuity and not be only tem- porary or occasional." In determining whether or not Pro- bation Officers are "public officers," under the test laid down by our Su- preme Court in the case cited, we must look at the statutes relating to such officers. Section 12288, R. C. M., 1935, provides for the appointment, salary and duties. Section 12301, pro- vides for the furnishing of a bond. The provisions of these sections clearly meet the requirements of a public officer as laid down in the cited case, viz, the office is created by legisla- tive enactment; the officer possesses a delegation of the sovereign power ex- ercised for the benefit of the public; the powers conferred and duties to be discharged are clearly defined by the legislature; the duties are per- formed independently, subject to a supervisory control by the appointing power; the office has permancy and continuity. 46 Corpus Juris, at page 922 lays down the following rule: "Officer, in the sense of public of- fice, may be defined broadly as a public station or employment con- ferred by the appointment of the government, or more precisely as the right. authority and duty created and conferred by law, the tenure of which is not transient, occasional or incidental, by which for a given period the individual is vested with power to perform a public function for the benefit of the public." See also, State ex rei Quintin v. Edwards, 38 Mont. 250. In the case of Coulter v. Poole (Calif.), 201 Pac. 120, at page 123, the court says: "The most general characteristic of a public officer, which distin- guishes him from a mere employee, is that a public duty is delegated and intrusted to him, as agent, the performance of which is an exercise of a part of the governmental func- tions of the particular political unit for which he, as agent, is acting." This new act increasing the salary of the probation officer became ef- fective March 15, 1937, and any proba- tion officer appointed prior to the time said new law went into effect cannot have his salary increased. To do so would be in viola ton of the consti- utional provison as heretofore quoted. However, these probation officers hold office for a term without a tenure of time, subject to the pleasure of the appointing board. While it is the opinion of this office that probation officers are public officers and come within the provisions of article 5, section 31, yet the Court could at any time at its own pleasure reappoint these probation officers or give these probation officers a new appointment, and they would be entitled to the in- creased salary under such new ap- OPINIONS OF THE ATTORNEY GENERAL 77 pointment, even tho the new appoint- ment was made within the present fiscal year. Therefore, it is my opinion that the pro baton officers are not entitled under an appointment made prior to March 15, to the additional salary, but that the Courts or the appointing board may extend to them new ap- pointments if they desire, and under these new appointments the probation officers would be entitled to the in- creased salary.