In re Breidenbach

• Decision Date: 24 January 1934
• Citation: 252 N.W. 366,214 Wis. 54
• Parties: IN RE BREIDENBACH ET AL.
• Court: Wisconsin Supreme Court

214 Wis. 54

252 N.W. 366

IN RE BREIDENBACH ET AL.

Supreme Court of Wisconsin.

Jan. 24, 1934.

Original proceeding for declaratory relief by Otto H. Breidenbach and others.--[By Editorial Staff].

Judgment in accordance with opinion.

Original action. Request for leave to institute an original proceeding for a declaratory judgment pursuant to section 269.56, Stats. The petition, which was filed November 17, 1933, recites that the petitioners are the duly elected, qualified, and acting circuit judges presiding over the respective branches of the circuit court of the Second judicial circuit of the state of Wisconsin, which is comprised alone of Milwaukee county; that the petitioners hold terms of office expiring variously from the first Monday in January, 1934, to the first Monday in January, 1939; that this action has to do with a controversy over the validity and effect of section 252.07, subsecs. (4) and (5), Stats.; that it is the contention of Milwaukee county that subsection (5) of section 252.07 is unconstitutional and void, and that the county which, by ordinance adopted October 9, 1923, elected to pay to the circuit judges of Milwaukee county the compensation authorized by subsection (5), (1) has no obligation to continue to pay such sum, and (2) may, assuming that it has such an obligation, discontinue the payments forthwith regardless of the fact that all of the petitioners have still some portion of their term unexpired. By stipulation between all of the parties and the Attorney General, it has been agreed that, in the event leave is granted to commence the original action, this court may proceed to render a declaratory judgment upon the basis of the allegations of fact appearing in the petition, without further pleadings.

Walter D. Corrigan, Sr., Maxwell H. Herriott, and J. H. Beuscher, all of Milwaukee, for petitioners.

William A. Zabel, Dist. Atty., and Oliver L. O'Boyle, Corp. Counsel, both of Milwaukee, for Milwaukee County and George F. Breitbach, County Clerk.

James E. Finnegan, Atty. Gen., and Joseph G. Hirschberg, Deputy Atty. Gen. (Mary Eschweiler, of Madison, of counsel), for the State as amicus curiæ.

WICKHEM, Justice.

The facts relating to this controversy, other than those heretofore recited, need not be set forth in detail. Suffice to say that the petitioners, at the time of the controversy in question, were receiving, in addition to payments from the state treasury, $1,000 per annum under the mandatory provisions of section 252.07, subsection (4), and $1,000 per annum under the provisions of subsection (5) of the same section, which reads as follows: “(5) In every county having a population of five hundred thousand or more, and containing an entire judicial circuit, for which more than one judge is provided by law, the county may pay to each such judge, during terms of office commencing after the first day of January, 1924, a sum of one thousand dollars per annum, payable monthly, out of the treasury of said county, as compensation in addition to the salary paid to such judges out of the state treasury and the salary paid to them out of the treasury of said county, pursuant to subsection (4) of section 252.07.”

The controversy arose out of the attempt on the part of the county to retrench by reducing public expenditures in view of the present condition of financial stringency. The petitioners offered voluntarily to waive 25 per cent. of the sum received from the county. This voluntary waiver was not deemed sufficiently large by the county board, and ultimately the question arose as to whether the county should or could properly pay the extra compensation at all, and if it could, whether it could not also elect to cease paying this extra amount whenever in the judgment of the board such a step seemed a wise measure of public economy. These facts are important only in so far as they go to show that there is a genuine controversy, and that it may be proper for this court to entertain the action so far as the declaratory judgment law is concerned. Heller v. Shapiro, 208 Wis. 310, 242 N. W. 174;Village of Sun Prairie v. Wisconsin Power & Light Co. (Wis.) 251 N. W. 605.

[1] The first question is whether this court should take jurisdiction. The petitioners rely upon the fact that the instant case involves a matter publici juris; that the remedy in the lower courts is lacking or inadequate; and that a situation is presented where jurisdiction must be taken or justice denied. The petitioners constitute all of the judges of the Second judicial circuit. It is pointed out that this circuit contains more than one-fourth of the population of the state, more than 30 per cent. of the value of assessed property of the entire state, and is the situs of more than 50 per cent. of the entire net taxable income received by residents or derived from property located or business transacted in the state. It is further claimed that since section 252.071 authorizes the county board in judicial circuits containing a city or cities of the population of 40,000 or more to contribute to the salary of its circuit judge, the petitioners do not deem it appropriate to bring this action for declaratory judgment before any circuit judge of this state. Since this case involves important questions concerning the delegation of legislative power, and since the power of the county board to decrease the salary of circuit judges prescribed by the state Legislature is involved, it presents a question publici juris, and this, taken with the virtual disqualification of many circuit judges, warrants this court in taking jurisdiction. Attorney General v. City of Eau Claire, 37 Wis. 400;Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164;In re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N. W. 643.

Upon the merits two questions are involved: (1) Is subsection (5), § 252.07, unconstitutional? (2) Assuming that it is, may Milwaukee county, having exercised an option to pay the additional salary therein prescribed, revoke its action and withhold from petitioners the increased compensation provided for by this subsection?

It is not contended by any of the parties hereto that circuit judges are not state officers. That they are has been held in Milwaukee County v. Halsey, 149 Wis. 82, 136 N. W. 139, and State ex rel. Wickham v. Nygaard, 159 Wis. 396, 150 N. W. 513, Ann. Cas. 1917A, 1065. Nor is there any question in this case as to the validity of subsection (4) of the same section, which makes mandatory the payment by Milwaukee county of an extra compensation to the circuit judges in the sum of $1,000. The validity of such a statute has been settled by the case of Milwaukee County v. Halsey, supra. The subject was there thoroughly considered, and it may be taken as settled that the Legislature may enact a statute giving to the judges of more populous and consequently busier circuits an extra compensation to be paid by the circuit in which such judges are elected and serve. Thus it is only the optional feature of subsection (5) that gives rise to questions concerning its validity.

[2] Coming to the first question, subsection (5) is claimed to be unconstitutional, first, because it violates section 7, art. 7, of the Wisconsin Const., which provides in part: “* * * Every circuit judge shall * * * receive such compensation as the legislature shall prescribe.”

It is also claimed to violate section 10, art. 7, Wis. Const., which provides in part as follows: “Each of the judges of the * * * circuit courts shall receive a salary, payable at such time as the legislature shall fix, of not less than one thousand five hundred dollars annually; they shall receive no fees of office, or other compensation than their salary.”

It is contended that under the Constitution the Legislature must prescribe the salary of the circuit judge, and that the judges must not receive compensation other than their salary; that subsection (5) of section 252.07 permits the county to pay to the judges compensation in addition to their salary, and, at least in part, to prescribe their salary. This is contended to be in direct contravention of the two sections named, and to constitute an invalid delegation to the county board of legislative powers conferred by the Constitution solely upon the Legislature. It is the contention of the petitioners that subsection (5) of section 252.07 merely grants to the county board of a county coextensive with such a circuit as is described in the section the right to elect to pay or not to pay the additional compensation, and that this constitutes a valid option statute under the doctrine of In re Richard Oliver, 17 Wis. 703, star page 681; that the subsection fulfills the requirements of the Wisconsin cases that such statutes must be complete in themselves, leaving nothing to be done except the exercise of the right to make them operative. State ex rel. Williams v. Sawyer County, 140 Wis. 634, 123 N. W. 248, 249. In re Richard Oliver, supra, involved the constitutionality of a federal statute authorizing the President, at his option,to suspend the writ of habeas corpus. In the case of In re Kemp, 16 Wis. 382, this court had held that the writ could only be suspended by act of congress. When the question was raised, in the Oliver Case, whether the Legislature could authorize the President, ...