Higer v. Hansen

• Decision Date: 20 June 1946
• Docket Number: 7299
• Parties: HIGER v. HANSEN, State Auditor, et al
• Court: Idaho Supreme Court

170 P.2d 411

67 Idaho 45

HIGER v. HANSEN, State Auditor, et al

No. 7299

Supreme Court of Idaho

June 20, 1946

Original application by C. H. Higer for peremptory writ of mandamus directed to Ernest G. Hansen as Auditor of the State of Idaho, Frank Langley, as Attorney General of the State of Idaho, and Ruth G. Moon, as Treasurer of the State of Idaho requiring the issuance of warrants for increased amount of salaries to justices of the Supreme Court, and the payment thereof.

Writ directed to issue.

C. H Higer, of Emmett, pro se, and Hawley & Hawley, of Boise, for plaintiff.

The Act of 1945 became effective on the 8th day of May, 1945 and the salaries of all encumbents of the offices of Justices of the Supreme Court and Judges of the District Court became $ 6,000.00 per annum and $ 5,000.00 per annum respectively payable in equal monthly payments, and the refusal of the defendant, Auditor, to issue warrants to the State Treasurer constitutes denial of the legislative intent to increase the salaries of Justices and Judges effective May 8, 1945. Article V, Sections 18, 19, 27, Idaho Constitution; I.C.A § 57-502, as amended by Chapter 77, Session Laws 1945; Sec. 6147, R.S.Idaho; I.C.A. § 1-711; Sec. 6151, R.S.Idaho, I.C.A. § 1-211; Woods v. Bragaw, 13 Idaho 607, 92 P. 576; Achenbach v. Kincaid, 25 Idaho 768, 777, 778, 140 P. 529; Williams v. Baldridge, 48 Idaho 618, 627, 284 P. 203; Fletcher v. Gifford, 20 Idaho 18, 115 P. 824; Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Oregon Short Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877; Phipps v. Boise Street Car Co., 61 Idaho 740, 107 P.2d 148.

Frank Langley, Atty. Gen., and J. R. Smead, Phil J. Evans, Thomas Y. Gwillian, and M. Reese Hattabaugh, Asst. Attys. Gen., for defendants.

The language of Section 27, Article V, of the Constitution of Idaho is too plain to permit of construction, and prevents either increase or diminution of the salary of any officer named therein who is in office at the time of enactment of an Act providing for such increase or diminution. Woods et al. v. Bragaw, 13 Idaho 607, 92 P. 576; Carlile v. Henderson, 17 Colo. 532, 31 P. 117, and authorities there cited; Jackson v. Porter, 57 Mont. 343, 188 P. 375, and authorities cited; Board of Chosen Freeholders of Atlantic County v. Lee, 76 N.J.L. 327, 70 A. 925.

The meaning of a Constitution, the intent to be arrived at by the courts, is that of the people who adopted it, not that of the Convention which drafted and proposed it. Cooley, Const.Lim., quoting Marshall, C.J.; Fletcher v. Gifford, 20 Idaho 18, 26, 115 P. 825; Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Oregon Short Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877; Hockett v. State Liquor License Board, 91 Ohio St. 176, 110 N.E. 485, L.R.A.1917B, 7; Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 133 P. 780, 134 P. 1191.

Miller, Justice. Ailshie, C. J., and Budge, Givens, and Holden, JJ., concur.

OPINION

Miller, Justice.

The 1945 Legislature by Chapter 77, Session Laws 1945, approved February 28th, amended Section 57-502, Idaho Code Annotated, increasing the salaries of Justices of the Supreme Court from $ 5000 to $ 6000 per annum, and judges of the district courts from $ 4000 to $ 5000 per annum. The act carried no emergency clause and became a law May 8, 1945. The act, insofar as it relates to salaries, is as follows:

"The salary of the Justices of the Supreme Court shall be $ 6,000.00 per annum, and the salary of the Judges of the district courts shall be $ 5,000.00 per annum. Such compensation shall be paid monthly as due out of the State Treasury * * *".

There are no restraints, inhibitions or prohibitions contained within the act against the payment of said salaries immediately upon the act becoming a law. The wording of the act follows very closely the wording of Section 17, Article V of the Constitution, providing the salaries of Justices of the Supreme Court and of district judges, and as originally adopted by the Constitutional Convention, reads:

"The salary of the Justices of the Supreme Court, until otherwise provided by the legislature, shall be three thousand dollars each per annum, and the salary of the Judges of the District Court, until otherwise provided by the legislature, shall be three thousand dollars each per annum, and no Justice of the Supreme Court or Judge of the District Court, shall be paid his salary, or any part thereof, unless he shall have first taken and subscribed an oath that there is not in his hands any matter in controversy not decided by him which has been finally submitted for his consideration and determination, thirty days prior to the taking and subscribing such oath."

The payroll of the justices of the Supreme Court, when Chapter 77, supra, became effective, was submitted to the state auditor for payment of the increased salary. The state auditor sought the opinion of the attorney general, and then refused to pay the increased amount of salary provided by Chapter 77, supra, on the grounds that the payment thereof was prohibited by the provisions of Section 27 of Article V of the Constitution, and which said section purports to be as follows:

"The legislature may by law diminish or increase the compensation of any or all of the following officers, to-wit: Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Superintendent of Public Instruction, Commissioner of Immigration and Labor, Justices of the Supreme Court, and Judges of the District Courts and District Attorneys, but no diminution or increase shall effect the compensation of the officer then in office during his term, provided, however, that the legislature may provide for the payment of actual and necessary expenses of the Governor, Secretary of State, Attorney-General and Superintendent of Public Instruction incurred while in the performance of official duty."

It is for the purpose of determining what affect, if any, Section 27, Article V, supra, has upon or over Chapter 77, supra, that this action was commenced and prosecuted. Just why Section 27, Article V, supra, was included in the Constitution is problematical, as no one now seems to know why or is able to justify its inclusion. Section 19 of Article IV of the Constitution provided the amount of salary to be paid the various executive officers, and as applied to such officers contains everything and even more than is contained in Section 27, Article V, supra. It is provided in Section 19, Article IV, that "The legislature may by law, diminish or increase the compensation of any or all of the officers named in this section, but no such diminution or increase, shall affect the salaries of the officers then in office during their term; Provided, however, the legislature may provide for the payment of actual and necessary expenses to the Governor, Lieutenant-Governor, Secretary of State, Attorney-General, and Superintendent of Public Instruction, while traveling within the State in the performance of official duty." Considerable discussion was indulged in by the delegates to the Constitutional Convention incident to salaries. Mr. Reid of Nez Perce County was chairman of the salary committee, and he and many other delegates were not slow in establishing salaries so low that the practice seems to have persisted and apparently has become a part of our fixed economic policy. We are not unmindful of the fact that it is generally considered that the salary of a Constitutional officer cannot be increased or diminished during his term of office, and for that reason that none of the justices of the Supreme Court could receive the increase in salary as provided by Chapter 77, supra, until a new term begins.

Some criticism may arise from the fact that the justices of this court are individually interested in the question involved, and, accordingly, it may be urged they are disqualified from hearing, considering or determining this proceeding. It would be fortunate, indeed, if the matter could be determined without this court having to participate, but since the machinery of the law furnishes no other means or tribunal to hear and determine the same, we must deal with the subject as best we can, and with the means at our disposal. The case of McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361, 368, L.R.A.1915E, 858, Ann.Cas.1917A, 1046, a parallel case, in which a vast array of authorities are cited, holds that the disqualification of judges must yield to necessity, and wherein it is made clear, under both reason and authority, that the rule of necessity must be recognized in proper cases. The author of said decision quotes from 23 Cyc. 581:

"The rule as to the disqualification of judges must yield to the demands of necessity. Where disqualification, if permitted to prevail, destroys the only tribunal in which relief may be sought, and thus effectually bars the door of justice, the disqualified judge is bound to hear and decide the cause. But, to justify a disqualified judge in sitting in a cause in which he is directly interested, the necessity must be imperative, in the determination of which the greatest care should be exercised."

In said case, as here, there was only one court to which plaintiff could apply for relief. He could not wait until the people provided another tribunal because there was nothing to justify the belief that any such tribunal would ever be created. There was but one course to pursue and that was to go before a court having authority to determine the validity of his demands. In referring to this court as a court having authority to determine the validity of plaintiff's demands, we must bear in mind that while a district court has jurisdiction to issue writs of mandamus, and could...