{ "id": 1586548, "name": "NYE v. BOARD OF COM'RS OF EDDY COUNTY", "name_abbreviation": "Nye v. Board of Com'rs", "decision_date": "1932-02-03", "docket_number": "No. 3748", "first_page": "169", "last_page": "175", "citations": [ { "type": "official", "cite": "36 N.M. 169" }, { "type": "parallel", "cite": "9 P.2d 1023" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "9 Ohio St. 628", "category": "reporters:state", "reporter": "Ohio St.", "opinion_index": 0 }, { "cite": "159 P. 379", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "92 Wash. 347", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 639342 ], "opinion_index": 0, "case_paths": [ "/wash/92/0347-01" ] }, { "cite": "75 F. 794", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3964519 ], "opinion_index": 0, "case_paths": [ "/f/75/0794-01" ] }, { "cite": "158 P. 800", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "22 N. M. 149", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4725098 ], "opinion_index": 0, "case_paths": [ "/nm/22/0149-01" ] }, { "cite": "214 P. 757", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "28 N. M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842591 ], "opinion_index": 0, "case_paths": [ "/nm/28/0458-01" ] }, { "cite": "210 P. 237", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "28 N. M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841685 ], "opinion_index": 0, "case_paths": [ "/nm/28/0179-01" ] }, { "cite": "125 P. 617", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "17 N. M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208825 ], "opinion_index": 0, "case_paths": [ "/nm/17/0088-01" ] }, { "cite": "124 P. 649", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 4463081, 4463131 ], "opinion_index": 0, "case_paths": [ "/or/62/0592-01", "/or/62/0574-01" ] }, { "cite": "17 N. M. 81", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208925 ], "opinion_index": 0, "case_paths": [ "/nm/17/0081-01" ] }, { "cite": "12 P. 759", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "4 N. M. (Gild.) 37", "category": "reporters:state", "reporter": "N. M. (Gild.)", "opinion_index": 0 }, { "cite": "136 P. 47", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "18 N. M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4696467 ], "opinion_index": 0, "case_paths": [ "/nm/18/0246-01" ] }, { "cite": "34 N. M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556098 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/34/0306-01" ] }, { "cite": "33 N. M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554404 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/33/0664-01" ] }, { "cite": "62 P. 979", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "10 N. M. 438", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11272465 ], "opinion_index": 0, "case_paths": [ "/nm/10/0438-01" ] }, { "cite": "31 N. M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551443 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/31/0120-01" ] }, { "cite": "167 P. 414", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "23 N. M. 43", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2396180 ], "opinion_index": 0, "case_paths": [ "/nm/23/0043-01" ] } ], "analysis": { "cardinality": 776, "char_count": 14203, "ocr_confidence": 0.512, "pagerank": { "raw": 3.827058065974551e-07, "percentile": 0.8986025826216123 }, "sha256": "697bfba536d646af1cea819094b933dc9f1c4384e047597a803d0c28f733ba2c", "simhash": "1:08eeaa6cf36425da", "word_count": 2397 }, "last_updated": "2023-07-14T18:24:15.491223+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BICKLEY, O. J., and PARKER, SADLER,. and HUDSPETH, JJ., concur." ], "parties": [ "NYE v. BOARD OF COM\u2019RS OF EDDY COUNTY." ], "opinions": [ { "text": "WATSON, J.\nBy peremptory mandamus, the board of county commissioners of Eddy county has been ordered to pay a claim of the county clerk for one month\u2019s \u201cadditional compensation,\u201d under 1929 Comp., \u00a7 33-3202; she having personally performed the duties of clerk of the district court.\nThe merit of the board\u2019s appeal depends upon the meaning of the section cited, enacted as section 2 of the Salary Act of 1915. For present purposes, amendments are immaterial.\nCounties having been classified according to assessed valuation 'by the preceding section, section 33-3202, in so far as we deem it material here, provides:\n\u201cUpon the basis of the foregoing classification, the annual salaries of the county officers in the several counties of the state, for the terms for which such officers were elected, are hereby fixed as follows:\n\u201cCounties of the First Class.\n\u201cCounty clerk, three thousand dollars and eighteen hundred dollars additional for a deputy or deputies; * * *\n'\u201cCounties of the Second Class.\n\u201cCounty clerk, twenty-two hundred dollars and fifteen hundred dollars additional for a deputy or deputies.\n\u201cProvided, that whenever during any calendar year the fees earned and turned into the county treasurer hy the county clerk, exclusive of those derived from the district court as shown by the certificate of the county treasurer, shall exceed in counties of the first class the sum of thirty-five hundred dollars ; in counties of the second class the sum of three thousand dollars; * * * an additional deputy or deputies may be employed in such clerk\u2019s office in sufficient number to take care of any emergency, upon the authority of the county board of commissioners at a salary to be fixed by the board of county commissioners, but in no case shall the salary exceed $100.00 per month, salaries for such additional fee deputies to be paid out of the fees collected and turned over to the county treasurer but no such deputy or deputies shall be employed unless the county clerk devotes himself personally to the duties of his office during usual business hours.\n\u201cAnd, provided, further, until relieved by law from the performance of the duties of clerks of district courts, the county clerks of the several counties in the state shall respectively receive additional compensation as follows:\n\u201cIn counties of the first class, fifteen hundred dollars per annum. In such counties where the fees derived from the district court, exclusive of fines and forfeitures, during any calendar year shall exceed twenty-five hundred dollars an additional deputy may be employed at a salary of not to exceed seventy-five dollars a month.\n\u201cIn counties of the second class, one thousand five hundred dollars per annum.\n\u201cSuch amounts shall be payable only to the deputy performing such service. Whenever such amount or any portion thereof shall have 'been heretofore paid to any person other than the county clerk, such county clerk shall reimburse the fund from which such payment was made, out of the allowance hereby made.\u201d\nThe controversy arises out of the seeming conflict between the one provision that the county clerks shall receive \u201cadditional compensation\u201d until relieved of the duties of district court clerks, and the other provision that such amounts shall be payable only to the deputy performing such service.\n\u201cSuch amounts\u201d as are made payable only to the deputy should not, of course, be paid to the clerk. The Attorney General contends that the clerk\u2019s present claim is one of those amounts, payable only to a deputy. Appellee contends that it cannot be, because the amount claimed by her is clearly given to the clerk as \u201cadditional compensation\u201d for performing specific duties, if not for administering a separate office.\nPut to it to point out what \u201csuch amounts\u201d are, counsel for appellee claims that they are only the amounts, not exceeding $75 a month, allowed for \u201can additional deputy\u201d who may be employed if district court fees in first class counties shall exceed $2,500.\nThis solution is more ingenious than convincing. It certainly reduces the importance of the provision to a minimum. It becomes a triviality. Before adopting this answer, we must look further.\n\u25a0 Reading the provision with the sentence immediately following, we cannot doubt that it refers to the office of clerk. But for this it might perhaps be argued that it refers to the allowances for the deputies of all officers. We know of no reason why one rule should be made as to the ordinary deputies of the clerk, and another for the deputies of the treasurer and the assessor.\nIt would seem, then, that \u201csuch amounts\u201d means the \u201cadditional compensation\u201d which county clerks are to receive until relieved by law from the duties of court clerks. It seems also that the Legislature must have contemplated, though it has not expressly comm\u00e1nded, that each county clerk should have a deputy to perform the duties of court clerk.\nThis gives importance to the provision, is entirely reasonable, and does no violence to the arrangement of the various provisions of the section. It gives it application to tile whole of the proviso in which it occurs.\nIt has not, however, advanced our effort to harmonize the two expressions thought to be inconsistent. We must, therefore, turn to \u201cadditional compensation\u201d to see if it will yield to interpretation. It does so readily.\nThe salary of the clerk is plainly fixed at $2,200. Any emoluments additional to the \u201csalary\u201d to be fixed by law, the Constitution prohibits. Article 10, \u00a7 1. Of course, if it is really \u201csalary,\u201d it would not matter .if the Legislature saw fit to call it \u201ccompensation.\u201d But,. a \u201csalary\u201d having been prescribed, the idea suggests itself that the \u201cadditional compensation\u201d was to be something else. For every county office in each of the five classes the section prescribes, in addition to the salaries, certain allowances for deputy hire. If the term \u201cadditional compensation\u201d be interpreted \u201cadditional allowance,\u201d all inconsistency disappears. That interpretation we are constrained to adopt, and that interpretation is fatal to appellee\u2019s claim and to the judgment.\nAttorney General Clancy, in 1916, concluded otherwise. He rendered his opinion to the then traveling auditor that the provision for paying \u201csuch amounts\u201d only to the deputy is of no effect, unless the clerk has in fact appointed a deputy for the purpose, and if the clerk himself performs the duties of clerk of the court. Op. Att. Gen., 1915-16, p. 375.\nThe learned former Attorney General must have overlooked a consideration which to our minds condemns this view as unsound. Under it, by the simple device of failing to appoint the deputy, the clerk could increase the salary or compensation or emoluments of office from $2,200 to $3,700. This would be strange public policy; conducive neither to economy nor to efficiency. This weakness is no doubt the reason why counsel for appellee rejected this view and sought another.\nCounsel for appellee claims no merit for the interpretation he suggests, except that no other will give to each part of the section the force to which it is entitled, and meet the requirements of numerous familiar canons of construction to which he calls attention.\nBut canons of construction are mere aids in determining legislative intent. Courts will not be mastered by them and driven to a result which could not have been contemplated. It is easy, however, thus to support our present conclusion.\n\u201cStatutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship, or injustice, to favor public convenience, and to oppose all prejudice to public interests.\u201d State v. Llewellyn, 23 N. M. 43, 167 P. 414, 415; State ex rel. Otto v. Field, 31 N. M. 120, at page 165, 241 P. 1027. And this is true, even if it be necessary for the court to seek a word better expressive of the legislative intent than that which it employed. Baca v. Board of Com\u2019rs of Bernalillo County, 10 N. M. 438, 62 P. 979; State v. Davidson, 33 N. M. 664, 275 P. 373; State v. Southern Pacific Co., 34 N. M. 306, 281 P. 29; Ex parte De Vore, 18 N. M. 246, 136 P. 47; Lewis\u2019 Sutherland Stat. Const. (2d Ed.) \u00a7\u00a7 376, 381-384.\nStanding alone, \u201cshall receive additional compensation\u201d seems very plain. But, when connected with the direction that it be paid only to some one else, it is evident that the ordinary meaning of the phrase was not intended. There are other compensations than monetary. To be allowed a deputy at public expense to do the work compensates or counterbalances for being required to perform the duties of clerk of court.\nNo one can read this section without being impressed that it is patchwork. Proviso has been added to proviso. It may have been the first thought to give the clerk monetary compensation. When that was abandoned for the plan of providing a deputy, the expression \u201cadditional compensatibn\u201d should, of course, have been changed. Since it .was not, we must work out the result of the two provisions as they operate each on the other. For two reasons preference must be given to the provision placed later in the section: First, it cannot be made to yield to any reasonable variance, while the other provision yields readily; and, second, if the provisions were not reconcilable, the later in position would repeal the earlier. Lewis\u2019 Sutherland Stat. Const. (2d Ed.) \u00a7 349; 36 Cyc. 1130; Board of County Commissioners v. Leavitt, 4 N. M. (Gild.) 37, 12 P. 759.\nMuch is made in argument of the \u201chardship\u201d upon the clerk of requiring her to perform the duties of court clerk without this \u201cadditional compensation.\u201d In an early case under the Constitution this court held that there1 was no presumption that a public officer was to receive any compensation. Delgado v. Romero, 17 N. M. 81, 124 P. 649, Ann. Cas. 1914C, 1114; and see Ward v. Romero, 17 N. M. 88, 125 P. 617; Fancher v. County Commissioners, 28 N. M. 179, 210 P. 237. In Baca v. County Com\u2019rs, 28 N. M. 458, 214 P. 757, we held that a statute prescribing compensation for an officer is in derogation of the common law and is to be strictly construed. Moreover, the county clerk is not compelled personally to perform these duties. A deputy to perform them is contemplated by clear implication.\nCounsel for appellee also contends that the last sentence above quoted conclusively shows that payment is to be made ,to the county clerk and to none other. We are unable to attribute any such meaning to it. It should be recalled that the act not only prescribed salaries and allowances for the future, hut made necessary provision for county officers who had been serving for more than three years without salaries, 'or any provision for the expenses of office. Its re-enactment in 1929 does not change the meaning of \u201cheretofore,\u201d which still means prior to the taking effect of Laws 1915, c. 12. Lewis\u2019 Sutherland Stat. Const. (2d Ed.) \u00a7 237; Ex parte Carrillo, 22 N. M. 149, 158 P. 800; Barrows v. People\u2019s Gaslight & Coke Co. (C. C.) 75 F. 794; State ex rel. Fair v. Hamilton, 92 Wash. 347, 159 P. 379; McKibben v. Lester, 9 Ohio St. 628.\nThe eminent counsel whose services as amici curiae have been tendered and accepted have not sought to sustain either the theory of the Attorney General or that of appellee\u2019s counsel. They contend only that early, long, and continuous official recognition of the right here claimed is strong evidence, not only as to the intent of the 1915 Legislature, but as to sanction by succeeding Legislatures. This is perhaps the strongest position that can he taken in favor of the judgment.\nReliance is placed upon the Attorney General\u2019s opinion before referred to and upon the stipulated fact that ever since the passage of the act Eddy county clerks have been paid this \u201cadditional compensation.\u201d\nWe do not think, however, that these facts are sufficient. .In the first place, the law is of state-wide application. Its interpretation is not to be controlled by the practice in one county. In the second place, Attorney General Bowman, in 1921, rendered an official opinion to the exact contrary of Attorney General Clancy\u2019s. Op. Att. Gen. No. 3110. The opinions for that period do not seem to have been published, but we seriously doubt whether the force of such opinions is to depend upon their publication and distribution in book form. Later Attorney General Otero, without referring to either of the former opinions, advised that the clerk was entitled to the \u201cadditional compensation\u201d; not noticing the requirement that it was to be paid only to the deputy. Op. Att. Gen. 1929-30, p. 40. Finally, Assistant Attorney General Patton rendered an opinion, No. 241, as yet unpublished, advising as we now hold. This opinion occasioned the rejection of appellee\u2019s present claim. So it has not been shown either that the practice was general or that the official rulings were uniform.\nCounsel for appellee makes the same point, and he would add to the facts by asking us to take judicial notice that these salaries are budgeted under scrutiny of the state tax commission, and thus to conclude that they could not have been paid without the knowledge and sanction of state officials, as well as of the county officials, charged with the execution of the law. It is apparent, however, that the item might be properly budgeted without disclosing that the payment was to be made contrary to law.\nFinding no substantial consideration to support appellee\u2019s right, and no sufficient evidence to cause us to yield our clearly defined views as to the meaning of the statute, in favor of long-continued and uniform administrative interpretation and practice, we are constrained to reverse the judgment. The cause will be remanded, with a direction to set aside the judgment and to vacate both the peremptory and the alternative writs.\nIt is so ordered.\nBICKLEY, O. J., and PARKER, SADLER,. and HUDSPETH, JJ., concur.", "type": "majority", "author": "WATSON, J." } ], "attorneys": [ "E. K. Neumann, Atty. Gen., for appellant.", "Caswell S. Neal, of Carlsbad, for appellee.", "Herman R. Crile, H. M. Dow, and L. O. Fullen, all of Roswell, amici curb\u00bb." ], "corrections": "", "head_matter": "9 P.(2d) 1023\nNYE v. BOARD OF COM\u2019RS OF EDDY COUNTY.\nNo. 3748.\nSupreme Court of New Mexico.\nFeb. 3, 1932.\nRehearing Denied April 15, 1932.\nE. K. Neumann, Atty. Gen., for appellant.\nCaswell S. Neal, of Carlsbad, for appellee.\nHerman R. Crile, H. M. Dow, and L. O. Fullen, all of Roswell, amici curb\u00bb." }, "file_name": "0169-01", "first_page_order": 197, "last_page_order": 203 }