McGovern v. Mitchell

• Decision Date: 07 March 1906
• Court: Connecticut Supreme Court
• Parties: McGOVERN v. MITCHELL, omptroller, et al.

63 A. 433

78 Conn. 536

McGOVERN

v. MITCHELL, omptroller, et al.

Supreme Court of Errors of Connecticut.

March 7, 1906.

Case Reserved from Superior Court, Hartford County; Joel H. Reed, Judge.

Action by Patrick McGovern against Asahel W. Mitchell, Comptroller, and another. On demurrer to complaint, the cause was reserved for the advice of the Supreme Court of Appeals. Superior court advised to sustain demurrer.

The following waiver was signed by the parties hereto, through their attorneys:

"The parties in and to the above action unite in expressly waiving any and every disqualification which may attach or suggest Itself as attaching to each and every justice of the Supreme Court of Errors, and to each and every judge of the superior court; and, pursuant to the provisions of section 498 of the General Statutes of 1902, the said parties to this action in open court agree and consent that said justices of the Supreme Court and said judges of the superior court may act in all the proceedings in and arising out of said above-named action. Dated at Hartford this 2d day of January, A. D. 1906."

PER CURIAM. The court is reluctant to hear this cause. No final determination of the subject-matter in controversy, however, can be made except by the Supreme Court of Errors. Of its five justices all are directly Interested in the result of this action. Of the judges of the superior court who might be called in to sit here, all but two are similarly interested. If, therefore, the cause were to be heard before a full court, a majority of the judges would be interested in the result. If, on the other hand, a special court of three judges of the superior court were to be constituted under Gen. St. 1902, § 484, to constitute the Supreme Court of Errors pro hacvice, it would be necessary, in order to fill it up, to designate at least one judge who was so interested, and thus to place upon him the burden now resting upon each of us. The question presented to us by this condition of things we regard as one of judicial duty. The statutes of the state have provided for the situation in which the parties find themselves. They authorize judges who are interested in the event of a cause to hear it, on the request and by the consent of both parties, expressed in open court. Such a request and consent have been expressed in this cause. We think that we have no right, under these circumstances, to decline to exercise the jurisdiction which the law has committed to us.

Action seeking to enjoin the State Comptroller and State Treasurer against drawing and paying certain orders in pursuance of legislation claimed to be unconstitutional, brought to the superior court in Hartford county. The Attorney General, appearing for the defendants, filed a demurrer to the complaint, and the cause was reserved for the advice of this court "as to the constitutionality of an act of the Legislature of the state of Connecticut, passed on July 14, 1905, and entitled 'An act amending an act concerning the salaries of judicial officers,' and what judgment should be rendered in said cause." Laws 1905, p. 410, c. 213.

Since the adoption of the Constitution of 1818, the Legislature has from time to time established by general law a compensation which it deemed adequate to be paid to the judges of the Supreme Court of Errors and of the superior court. In 1871 the Legislature by such law established the salary of these judges at $4,000 a year, and no new establishment of salaries was made until the passage of the legislation in question. In 1877 an amendment to the Constitution was adopted, which is in the following language: "Neither the General Assembly, nor any county, city, borough, town, or school district, shall have power to pay or grant any extra compensation to any public officer, employé, agent, or servant, or increase the compensation of any public officer or employé, to take effect during the continuance in office of any person whose salary might be increased thereby, or increase the pay or compensation of any public contractor above the amount specified in the contract"—and is known as article 24 of amendments to the Constitution. Chapter 213, p. 410, of the Public Acts of 1905, is as follows:

"An act amending an act concerning the salaries of judicial officers.

"Be it enacted by the Senate and House of Representatives In General Assembly convened:

"Section 1. Section one of chapter 163 of the Public Acts of 1903 is hereby amended by striking out commencing in the third line thereof the words 'as their respective terms of office shall hereafter begin,' so that said section as amended shall read as follows: The chief justice of the Supreme Court of Errors, each associate justice of said court, and each judge of the superior court shall receive annual salaries as follows: The chief justice of the Supreme Court of Errors, six thousand five hundred dollars; each associate justice of said court and each judge of the superior court, six thousand dollars.

"Sec. 2. This act shall take effect from its passage.

"State of Connecticut, House of Representatives, July 13, 1905. Reconsidered and passed by yeas and nays. Yeas 124, nays 46—the objections of the Governor notwithstanding. John A. Spafford, Clerk.

"State of Connecticut, Senate, July 14, 1905. Reconsidered and passed by yeas and nays. Yeas 15, nays 9—the objections of the Governor notwithstanding. Alfred C. Baldwin, Clerk."

The judges of the Supreme Court of Errors at the time the act of 1905 went into effect were the same judges constituting the court prior to the passage of the act of 1903, and were all appointed prior to the passage of that act. The judges of the superior court at the time the act of 1905 went into effect were the same judges constituting that court prior to the passage of the act of 1903, except that one judge then in office was retired by constitutional limitation in 1904, and a person not before a member of the court then became judge. With this exception all the judges had been appointed prior to 1903; one of them, however, continuing in office under a reappointment made shortly before the passage of the act of 1905.

The plaintiff, describing himself as a citizen, taxpayer, and elector of the state and, in common with his fellow citizens, entitled to all the protection, benefits, privileges, and immunities arising from article 11 of the Constitution relative to amendments to the Constitution, brought this action alleging the passage of the act of 1905 and the constitution of the Supreme Court of Errors and of the superior court at and before the passage of that act, and alleging that "the Legislature has passed an act which attempts to increase such salaries and the state officers threaten to comply with it to the damage of the plaintiff," and praying for an injunction restraining the State Comptroller and Treasurer from drawing and paying orders for the payment of the salaries mentioned.

The Attorney General demurred to the complaint on the following grounds: "(1) Because the constitutional judicial officers mentioned in said complaint, to wit, the chief justice of the Supreme Court of Errors, the associate judges of that court, and the judges of the superior court, are not public officers, employés, agents, or servants within the true intent and meaning of the twenty-fourth article of the amendment to the Constitution. (2) Because the Senate and House of Representatives, as 'the Legislature of the state of Connecticut' in enacting the law referred to in paragraph 3 of the substituted complaint, lawfully exercised 'the legislative power of this state' exclusively vested by the Constitution in the Senate and House of Representatives, and especially so vested therein by article 3, § 1, and article 4, § 12, and did not, as 'the General Assembly' referred to in article 24 of the amendment to the Constitution, pay or grant anything to, or increase the compensation of, any public officer, employé, agent, or servant, within the true intent and meaning of said 24th amendment to the Constitution."

The following stipulation was filed in the superior court: "The parties to the above-entitled action hereby stipulate and agree that, for the purpose of determining the question of the constitutionality of the act of the Legislature passed at the January session of 1905, as set forth in chapter 213, p. 410, Public Acts of the state of Connecticut, and entitled 'An act amending an act concerning the salaries of judicial officers,' the demurrer to the complaint as filed by the Attorney General in behalf of the defendants shall be considered as presenting, in connection with the plaintiff's complaint and amended complaint, said question for the consideration of the Supreme Court of Errors, January term, 1906, First judicial district, and that all formal defects in said complaint and amended complaint and demurrer thereto are hereby waived for the express purpose of presenting to said Supreme Court the question of the constitutionality of said act."

John A. Stoughton, for plaintiff.

The plaintiff at the time of the passage of the act under consideration was, and now is. a member of the state Senate, and voted against the passage of the act, and contended:

(1) The construction of the Constitution must be according to the commonly approved usage of language, by virtue of the statute declaring that in the construction of all statutes of this state words and phrases shall be so construed. Gen. St. 1902. § 1. "Public officers" includes the Governor and other state officers directly mentioned in the Constitution and all officers established by or in pursuance of article 5, which defines the judicial department. All these officers are understood, in the natural interpretation of the language, as "public officers." A judge is a public officer. 23 Am. & Eng. Ency. of Law (2d Ed.) p. 332; 17 Am. & Eng. Ency. of Law (2d Ed.) p. 716.

(2) The Constitution is a limitation of the powers of...