Board of Sup'rs of Albemarle County v. Marshall

• Decision Date: 28 April 1975
• Docket Number: Nos. 740513,740514,s. 740513
• Citation: 214 S.E.2d 146,215 Va. 756
• Parties: BOARD OF SUPERVISORS OF ALBEMARLE COUNTY v. Shelby J. MARSHALL. Record
• Court: Virginia Supreme Court

Page 146

214 S.E.2d 146

215 Va. 756

BOARD OF SUPERVISORS OF ALBEMARLE COUNTY v. Shelby J. MARSHALL.

Record Nos. 740513, 740514.

Supreme Court of Virginia.

April 28, 1975.

Frederick W. Payne, Deputy County Atty. for Albemarle County, for plaintiff in error.

Edward H. Bain, Jr., Charlottesville (Boyle & Wood, Charlottesville, on brief), for defendant in error.

Charles K. Trible, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief amicus curiae).

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

Shelby J. Marshall, Clerk of the Circuit Court of Albemarle County, filed her motion for judgment in the trial court against the Board of Supervisors of Albemarle County (Board), alleging that the Board had, during her term of office, underpaid her in the amount of $39,264.36 (Record No. 740513). She also filed a motion for declaratory judgment against the Board seeking an adjudication that the compensation of her deputy clerks is controlled by the State Compensation Board and not by the Board of Supervisors (Record No. 740514). Answers were filed by the Board of Supervisors.

After a hearing on March 1, 1974, at which evidence was introduced and argument of counsel was heard, the trial court ruled against the Board in both cases. On March 15, 1974, judgment was entered in the declaratory judgment proceeding, declaring that the State Compensation Board determines the compensation and the effective dates during which such compensation is payable to Marshall's deputies and awarding judgment for any salary deficiencies of the deputies for the calendar year 1973. On April 24, 1974, judgment was entered for Marshall against the Board in the amount of $39,264.36 for additional salary payable to her. The Board has appealed both judgment orders.

I

Salary of the Clerk.

Albemarle County adopted the county executive form of government in 1933 pursuant to enabling legislation, Title 15.1, Chapter 13, Article 2, § 15.1--588 et seq., Code of 1950, as amended, and predecessor statutes. Under this optional form of government the General Assembly vested in the Board the power to fix the compensation of all officers of the county and to establish a uniform schedule of compensation for county officers and employees, subject to limitations made by general law. ¹

Marshall was elected clerk for an eight year term beginning January 1, 1968. During her term the Board has paid her a salary which at all times has been less than what she would have earned had she been compensated under the fee system. There is no evidence that Marshall accepted only under protest the salary, including annual increases, fixed for her by the Board. Marshall contends, however, and the trial court held, that by Code § 14.1--155.1 ² she was entitled to a salary not less than the compensation which she would have earned under the fee system. The Board concedes that the sum of $39,264.36 is the aggregate amount of the difference between what Marshall was paid from the beginning of her term and what she would have earned if she had been compensated on a fee basis.

In support of her position, Marshall called as a witness Harry B. Wright, the President of the Clerk's Association at the time § 14.1--155.1 was enacted and a member of the Association committee which drafted the then proposed legislation. He testified, in essence, that the Association's proposal was based on the belief that all clerks, regardless of the form of government under which they operated, should receive equal compensation for equal work. He also testified, however, that members of the General Assembly chose the word 'salary' as it appears in the statute.

Marshall also called as a witness Thomas R. Miller, a retired clerk of the Hustings Court for the City of Richmond. Miller testified that he took no active part in proposing § 14.1--155.1 or in testifying before the legislative committee responsible for the statute, although he was involved in proposing Code § 14.1--155, which increased the maximum compensation for clerks and was made specifically applicable to clerks on a salary basis. He stated that the purpose of § 14.1--155 was to 'equalize, to pay the clerks for doing the same amount of work.' Although Miller testified that there 'is no minimum salary to a clerk of a court of record,' he also 'construed the minimum that (he) could get as the amount of fees (he) took in up to what (he) was restricted to under general law.'

Marshall testified that she first learned what salary she would receive shortly after her election, but before she took office, and she was 'highly disappointed' when she found out the amount. She testified that when she ran for the office she was aware of what the salary 'should be under the general law.'

The trial court held that the minimum salary payable to Marshall was the maximum compensation which she could retain pursuant to Code §§ 14.1--143 et seq. if she were on the fee system of compensation. The court's holding was based primarily on its belief that a decision to allow the Board to fix Marshall's salary would have the effect of subordinating a constitutional officer to the board of supervisors of a county. This conclusion, however, ignores the effect of the enabling legislation under which a county executive form of government functions.

Section 110 of the 1902 Constitution, as amended, in effect in 1933 when Albemarle County adopted the county executive form of government, provided for the election of specified county officers, including the clerk, whose duties and compensation 'shall be prescribed by general law.' This section also authorized the General Assembly to 'provide for complete forms of county organization and government' different from that prescribed in the Constitution. Pursuant thereto, Code § 15.1--588 et seq., and predecessor statutes, providing for a county executive form of government, permitted the elimination of certain constitutional offices, such as those of the commissioner of the revenue and of the treasurer, and the consolidation of various functions under department heads appointed by the board of supervisors.

The constitutionality of the enabling legislation was upheld in Lipscomb v. Nuckols, 161 Va. 936, 172 S.E. 886 (1934), where we said that '(t)he power to provide for a complete change in the form of county organization and government includes the power to abolish the old form and all officers thereunder.' 161 Va. at 948, 172 S.E. at 890. Therefore, the General Assembly could validly authorize the Board in its discretion to determine the clerk's salary. Indeed, in oral argument Marshall conceded that prior to the enactment of § 14.1--155.1 in 1966, the Board had the power to set the clerk's salary, irrespective of the fee provisions of § 14.1--143 et seq.

If the construction which the trial court placed upon § 14.1--155.1 is correct, then the enactment of that statute resulted in the repeal by implication of Code § 15.1--619, which expressly abolished the fee system as a method of compensation for clerks in counties operating under the county executive form of government, and of other statutes. Thus, the Board's authority under Code § 15.1--600 to fix the compensation of county officers, and its mandate under Code § 15.1--616 to establish a uniform schedule of compensation would be compromised. We perceive no such intent in the language of § 14.1--155.1, regardless of what may have been the hopes and expectations of those who sought to have the legislation passed. Repeal of a statute by implication is not favored, and, indeed, there is a presumption against a legislative intent to repeal 'where express terms are not used, or the later statute does not amend the former.' New Market, etc., Co. v. Keyser, 119 Va. 165, 170, 89 S.E. 251, 253 (1916). If apparently conflicting statutes can be harmonized and effect given to both of them, they will be so construed. Standard Drug v. General Electric, 202 Va. 367, 378--79, 117 S.E.2d 289, 297 (1960).

Fee system clerks do not receive salaries. Under § 14.1--143 et seq., their compensation is based upon fees collected, less expenses, subject to the maximum limits established by statute. Thus, the annual compensation of such a clerk cannot be precisely determined until the expiration of the year, and it is subject to fluctuations reflecting the state of the economy and the volume of business transacted in the clerk's office.

To interpret § 14.1--155.1 to guarantee salaried clerks the same income as fee system clerks who collect an equal amount of fees, it is necessary to infer that 'salary', as used in the third paragraph of the statute, means 'compensation', so that salaried clerks shall receive not less than the minimum compensation provided under general law. We do not consider this to be a fair inference.

In determining legislative intent from the statutory language, words should be given their ordinary meaning. Superior Corp. v. Commonwealth, 147 Va. 202, 136 S.E. 666 (1927). Moreover, where a word is used in different sections of a statute and its meaning is clear in all but one instance, '(t)he same meaning . . . will be attributed to it elsewhere unless there be something in the context which clearly indicates that the legislature intended some other and different meaning . . ..' Postal Telegraph Co. v. Farmville, etc., R. Co., 96 Va. 661, 664, 32 S.E. 468, 470 (1899).

Throughout Article 3, Chapter 2 of Title 14.1, the statutes consistently distinguish between 'compensation', derived from fees, and 'salaries (which) shall be in full compensation for services and shall be in lieu of the retention by . . . clerks of any and all official fees' or other compensation. Code §§ 14.1--144, --144.1, and --149; See also Code § 14.1--162. Therefore, we conclude that the General Assembly could not did intend that 'salary' not be used interchangeably with 'compensation' in § 14.1--155.1.

By letter opinion dated ...