Kearney v. Bd. of State Auditors, No. 551.

• Court: Supreme Court of Michigan
• Writing for the Court: PER CURIAM.
• Citation: 155 N.W. 510,189 Mich. 666
• Decision Date: 22 December 1915
• Docket Number: No. 551.
• Parties: KEARNEY v. BOARD OF STATE AUDITORS. HORTON v. BOARD OF STATE AUDITORS

189 Mich. 666
155 N.W. 510

KEARNEY
v.
BOARD OF STATE AUDITORS.
HORTON
v.
BOARD OF STATE AUDITORS

No. 551.

Supreme Court of Michigan.

Dec. 22, 1915.

Application by Thomas D. Kearney for a writ of mandamus against the Board of State Auditors, consolidated with application by George B. Horton for writ of mandamus against the same respondent. Writs denied.

Argued before BROOKE, C. J., and KUHN, MOORE, STONE, OSTRANDER, BIRD, STEERE, and PERSON, JJ.

[155 N.W. 510]

Shields & Silsbee, of Lansing, for relators.

Grant Fellows, Atty. Gen., and L. W. Carr and Clare Retan, Asst. Attys. Gen., for respondent.

PER CURIAM.

Relators in the above-entitled cases are members of the state tax commission of Michigan by gubernatorial appointment. The office is appointive, with a full term of six years. Each first became a member of the commission by appointment for a full term. Relator Horton was appointed and entered upon the duties of his office January, 1911, and relator Kearney two years later. Except as hereafter stated, they have been continuously members of said commission ever since. Their respective terms will expire in January, 1917, and January, 1919. When each entered upon the duties of his office, his salary, as fixed by statute, was $2,500 per annum. Other than the dates of their first appointments, the facts and questions of law involved are substantially alike in both cases, which are briefed and submitted together.

In 1913 the Legislature passed an act (No. 331) entitled:

‘An act to fix the salary and provide for the expenses of the board of state tax commissioners.’

The material part of said act is as follows:

‘Section 1. Hereafter the members of the board of state tax commissioners shall each receive an annual salary of three thousand five hundred dollars, which shall be paid out of the general fund in the state treasury. The members of said board shall also receive all expenses actually and necessarily incurred in the performance of official duties, all of which shall be audited and allowed by the board of state auditors and paid from said general fund: Provided, however, that the members of said board shall devote their entire time to the duties of their respective offices.’

[1] While it may imply more time than formerly should be devoted to those which exist, this act adds no new duties; and, if it did, extra compensation cannot be provided for additional duties within the scope of and germane to the office without violating a constitutional provision forbidding increase in salary after election or appointment or during the then term of office. Moore v. Nation, 80 Kan. 672, 103 Pac. 107,23 L. R. A. (N. S.) 1115,18 Ann. Cas. 397;United States v. King, 147 U. S. 677, 13 Sup. Ct. 439, 37 L. Ed. 328; Evans v. Trenton, 24 N. J. Law, 764.

[2] Until April, 1915, relators continued to draw their salaries at the rate of $2,500 per annum. On April 27, 1915, both presented their resignations to the Governor, which were accepted upon the day they were presented. On the following day, April 28th, both relators were reappointed to the same respective terms and offices from which they had resigned. Their appointments were thereafter confirmed by the state senate, and commissions were at once issued to them under their reappointments. Relator Kearney again took and filed the constitutional oath of office on April 29 and relator Horton on April 30, 1915. Both thereafter claimed that during the balance of the terms to which they were originally appointed, and reappointed to fill vacancies created by their resignations, they were entitled to the annual salary of $3,500, as provided by said Act No. 331, Pub. Acts 1913. Having asked and received from the Attorney General an opinion unfavorable to this claim, the state board of auditors declined to audit and allow relators' salaries at the increased rate, taking the position that they were not entitled to the benefit of such increase until the expiration of the terms for which they were originally

[155 N.W. 511]

appointed, for the reason that section 3, art. 16, of the state Constitution of 1909 prohibits increasing salaries of public officers after their election or appointment. The board did, however, audit the salaries of relators at the rate of $2,500 per annum, as before. After due demand and refusal, these petitions for mandamus were filed to compel the state board of auditors to audit and allow relators' salaries at the rate of $3,500 per annum after the dates they qualified under reappointment, according to the pay roll of said commission as prepared and presented. Orders to show cause were granted and answers filed properly putting the question involved at issue.

It is conceded that members of the board of state tax commissioners are public officers within the meaning of the Constitution, and, had relators continued in office under their original appointments for the terms they are now filling, the constitutional prohibition would preclude their receiving an increase of salary. It is urged, however, that when they resigned and their resignations were accepted, their tenure ended, and there was an absolute vacancy in the office, which the Governor could fill by the appointment of any incumbent he chose; that, when he saw fit to appoint them, and they accepted, they began a new tenure of office as independent of and distinct from their former tenure as though other persons had been appointed, entirely free from the constitutional restriction urged by respondent. The ground for this contention is the less lucid phraseology of the prohibition in our present Constitution than that found in the preceding one, or generally in the legislation and...