Comptroller of State v. Klein

• Decision Date: 30 January 1958
• Docket Number: No. 89,89
• Citation: 138 A.2d 648,215 Md. 427
• Parties: COMPTROLLER OF the STATE of Maryland v. Danlel E. KLEIN.
• Court: Maryland Court of Appeals

Page 427

215 Md. 427

138 A.2d 648

COMPTROLLER OF the STATE of Maryland v.Danlel E. KLEIN.

No. 89.

Court of Appeals of Maryland.

Jan. 30, 1958.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellant.

Charles C. G. Evans and W. Giles Parker, Baltimore (Robert F. Skutch, Jr., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, and HORNEY, JJ., and JOHN B. GRAY, Jr., J., specially assigned.

JOHN B. GRAY, Jr., Special Judge.

This appeal presents for consideration the construction of Article 3, Section 35, of the Constitution of Maryland.It involves the right of a public officer, who was appointed to fill out an unexpired term, to receive an increase in the salary of that office provided for after the appointment of his predecessor but before the present incumbent was appointed.While this Section of the Constitution has heretofore received interpretation by this Court, ¹ the specific question now presented comes for determination for the first time.

The facts are simple and undisputed.On June 1, 1949Mr. William Mahaney was appointed Chairman of the Employment Security Board for a six-year term expiring on June 1, 1955.At that time his salary was fixed at $7,500.Thereafter, by Chapter 617 of the Acts of 1951, the power to fix the salary of the Chairman was vested in the Standard Salary Board.In June, 1951, this Board fixed the salary of the Chairman at $10,000.However, Mr. Mahaney continued to receive his original salary until his resignation on July 20, 1953.After Mr. Mahaney resigned, the Governor appointed Daniel E. Klein, the appellee, to fill the remainder of Mr. Mahaney's unexpired six-year term, effective on or about November 2, 1953.Thereafter and until his resignation on April 15, 1955, the appellee received as his salary $10,000 per annum, which included the increase of June, 1951.During the course of a routine audit of the fiscal affairs of the Employment Security Board, the propriety of paying the appellee the increased salary was raised.In due course, the Comptroller of the State of Maryland called upon the appellee to return the funds paid to him by way of salary in excess of the rate of $7,500, which was the salary established by law when his predecessor, Mr. Mahaney, was originally appointed for the six-year term.Thereupon the appellee brought suit in the Circuit Court of Baltimore City, seeking a declaratory decree establishing his right to the funds in question.These proceedings resulted in a decree of that Court establishing the right of the appellee to the full salary actually received by him.From this decree, the Comptroller has taken the present appeal.

Some collateral issues were originally raised in the nisi prius court, but they seem to have been abandoned there and were not argued or otherwise urged in this Court.Counsel for both sides concede that the sole question for determination in this appeal is whether or not the appellee, while serving the unexpired term to which Mr. Mahaney had been originally oppointed, was prohibited from accepting the increase in salary by the concluding clause of Section 35, Article 3, of the Constitution.The relevant clause reads: 'Nor shall the salary or compensation of any public officer be increased or diminished during his term of office.'The appellant contends that this clause should be interpreted as though it read: 'Nor shall the salary or compensation with respect to any public office be increased or diminished during any term thereof.'The appellee contends that the clause should be construed as though it read as follows: 'Nor shall the salary or compensation of any public officer be increased or diminished during his term of office, while he shall be an incumbent thereof.'

It is apparent that the question raised for determination is a narror one, but it has given rise to a wide difference of opinion and is not free from difficulty.Contrary interpretations have been reached by different attorneys general.² In the pending case the full salary was first paid to the appellee, and now the State demands a refund of the increase.An examination of the authorities in other states discloses a wide difference of opinion among them.Some of this difference stems from the fact that most of the State Constitutions contain a clause prohibiting certain increases or decreases of compensation, or both, but the phraseology in the several instruments is quite different.Some of the decisions adopt a construction which the Court concerned deems to effectuate the general object of the prohibition while others result from a study and application of the phrase involved.Generally, the decisions fall into two categories: (a) Those which hold that the prohibition relates to the term and therefore prevents any person serving during that term, whether an original incumbent or one filling an unexpired term, from receining an increase or being subjected to a decrease in compensation; and (b) Those which hold that the prohibition is intended to relate to the individual who may for the time being hold the particular office.This group of cases generally holds that the prohibition affects only the incumbent who may occupy the office at the time of the increase or diminution.

The appellant relies upon State ex rel. Wyrick v. City of Ritzville, 16 Wash.2d 36, 132 P.2d 737, 738, 144 A.L.R. 681, which relates to municipal officials, one of whom sought a per diem which had been authorized before he accepted appointment to an unexpired term.As pointed out by the appellant, Article II, Section 25 of the Washington Constitution is substantially identical with Article III, Section 35 of the Maryland Constitution.However, the Court appears to have applied Article XI, Section 8 of the Washington Constitution which provided that, 'The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election or during his term of office * * *.'This provision of the Washington Constitution is materially different from ours.In view of this difference and of the reasoning of the Courtwe do not regard the precedent as persuasive.Somewhat similar decisions were rendered in the following cases: Bosworth v. Ellison, 1912, 148 Ky. 708, 147 S.W. 400.(This case had to do with an increase of a jailer's compensation for keeping and feeding prisoners, and the Court reached a conclusion contrary to that of this Court in Bowman v. County Com'rs of Harford County, 166 Md. 296, 171 A. 48.)Clark v. Frohmiller, 1939, 53 Ariz. 286, 88 P.2d 542, involves the right of a judge elected to fill an unexpired term of an increase provided before his election.The constitutional limitation is not dissimilar to ours.The Court reviewed various decisions on both sides of the question and held that the increase was prohibited.In Foreman v. People, 1904, 209 Ill. 567, 71 N.E. 35, the Court construed three quite different constitutional provisions to mean the same thing and that all prohibit any increase during the term.

In Wilson v. Shaw, 1922, 194 Iowa 28, 188 N.W. 940, 942, the Court was dealing with a constitutional limitation affecting compensation 'during the term for which they shall have been elected.'I.C.A.Const. art. 5, § 9.By a divided Court, increased compensation to one filling an unexpired term was denied.

The case of State ex rel. Henneford v. Yelle, 1942, 12 Wash.2d 434, 121 P.2d 948, cited by the appellant, is not in point, for it has to do with the question of whether an incumbent, re-elected for a new term, may be subjected to a decrease effected before his re-election;but seeState ex rel. Hovey v. Clausen, 1921, 117 Wash. 475201 P. 770;Holmes v. Frohmiller, 1940, 55 Ariz. 556, 104 P.2d 156.

The following cases tend to support the contention of the appellee:

Gaines v. Horrigan, 72 Tenn. 608.In this case the constitutional limitation was 'during the time for which they are elected.'Article 6, § 7.In a well considered opinion the Court held that a decrease before Horrigan assumed an unexpired term was effective.

Lancaster v. Board of Com'rs, 1946, 115 Colo. 261, 171 P.2d 987, 988, 166 A.L.R. 839, dealt with a constitutional limitation prohibiting increase or decrease 'after his election or appointment.'Art. 5, § 30.The Court held that an increase authorized before the incumbent was appointed to fill an unexpired term was payable.

State ex rel. Bashford v. Frear, 1909, 138 Wis. 536, 120 N.W. 216, 219.In Wisconsin's Constitution there was a limitation on the power of the legislature to increase or decrease any public officer's compensation 'during his term of office.'Article 4, § 26.One appointed to fill a vacancy was held entitled to an increase.The Court based its reasoning largely on the fact that the limitation was on the legislature(as in Maryland) and related to the incumbent rather than the term.

To the same effect, see: Board of Chosen Freeholdes of Atlantic County v. Lee, 1908, 76 N.J.L. 327, 70 A. 925;State ex rel. Jackson v. Porter, 1920, 57 Mont. 343, 188 P. 375(but seeState ex rel. Morgan v. Knight, 1926, 76 Mont. 71, 245 P. 267);Ballangee v. Board of County Com'rs, 1949, 66 Wyo. 390, 212 P.2d 71;Carter v. State ex rel. Taylor, 1919, 77 Okl. 31, 186 P. 464.

Many of these decided cases deal with phraseology substantially different from that of our Constitution.It is quite impossible to reconcile the reasoning or the results in all of the cases that deal with this subject and there seems to be no clear weight of authority.The Court concludes that its determination should not be based upon an attempt to determine the weight of the authority in the cases thus decided.We prefer to predicate the decision in this case upon what we conceive to be the natural and logical interpretation of the words of the Constitution, an evaluation of the purposes of the framers of the Constitution in establishing this...