Milwaukee Cnty. v. Halsey

• Decision Date: 11 May 1912
• Citation: 136 N.W. 139,149 Wis. 82
• Parties: MILWAUKEE COUNTY v. HALSEY.
• Court: Wisconsin Supreme Court

149 Wis. 82

136 N.W. 139

MILWAUKEE COUNTY

v.HALSEY.

Supreme Court of Wisconsin.

April 3, 1912.

Dissenting Opinion May 11, 1912.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by Milwaukee County against Lawrence W. Halsey. From an order sustaining a demurrer to the complaint and stipulation of facts, plaintiff appeals. Affirmed.

Barnes, J., dissenting.Winfred C. Zabel, Dist. Atty., and William L. Tibbs, Asst. Dist. Atty., for appellant.

Thomas W. Spence and George P. Miller, for respondent.

TIMLIN, J.

The complaint shows that the defendant is circuit judge of the Second judicial circuit, and entered upon a term on April 2, 1901, and again entered upon a term of six years on the 1st day of January, 1906, and received from the state of Wisconsin an annual salary of $4,000, and, in addition, as salary or compensation other moneys from Milwaukee county amounting to $250 per quarter or $1,000 per year. It is contended that these latter payments were illegal, and the action is brought to recover the money so paid by the county.

Two questions arise: (1) What statutes are in force and their meaning? (2) Are the statutes when given their true meaning unconstitutional? These questions are interrelated because of the rule that, where a statute is fairly susceptible of two different constructions, that which will leave the statute valid and constitutional is to be preferred. Prior to the amendment to the Constitution ratified in April, 1897, there was but one class of judicial circuits and one class of circuit judges in this state. Five judicial circuits were created by the Constitution, but the Legislature was given power to increase the number of circuits bounding such circuits by county lines, not, however, so as to legislate a judge out of office, and the minimum salary of the circuit judges was fixed. The circuit judges were to receive no fees of office or other compensation than their salaries. Const. art. 7. While the constitutional provisions stood thus, there was enacted and in force chapter 12, R. S. 1878, “Of Salaries and Permanent Appropriations,” which fixed the annual salaries of judges of the circuit court at $3,000 each. Chapter 246, Laws of 1885, raised this salary as to the judges thereafter elected to $3,600 annually, and chapter 263, Laws of 1889, provided that each of the several judges of the circuit courts in this state should receive the sum of $400 per annum as and for his necessary expenses while in the discharge of his duties as such judge in addition to the salary then provided by law, and that the act should apply to the several judges then in office.

[1] It may be observed in passing that, in addition to the explicit provisions of this statute to the effect that the allowance thère made is for expenses and in addition to salary, the act would be invalid on its face if we should consider the allowance there made “compensation” within the meaning of that word in section 26, art. 4, Const., which provides that the compensation of a public officer shall not be increased or diminished during his term of office. The substance of these statutes condensed, rewritten, but without material change was carried into the Revised Statutes of 1898, where it appears in chapter 12 in these words: “The judges of the circuit courts, three thousand six hundred dollars each, and in addition thereto each judge shall receive the sum of four hundred dollars per annum as and for his necessary expenses while in the discharge of his duties, such amount to be paid quarterly.” This revision was enacted and approved August 20, 1897, to go into effect September 1, 1898. The statutes revised and condensed in the R. S. 1898, viz., R. S. 1878, chapter 246, Laws of 1885, and chapter 263, Laws of 1889, were expressly repealed on August 20, 1897, such repeal to take effect September 1, 1898. On the same day, viz., August 20, 1897, there was approved, and on August 23d published, chapter 377, Laws of that year. This recited the recent constitutional amendment to the effect that in any circuit composed of one county only, which county contains a population of one hundred thousand or over, the Legislature might from time to time authorize additional circuit judges to be chosen. By this amendment every circuit judge was also required to reside in the circuit from which he is elected, and to hold his office for such term and receive such compensation as the Legislature should prescribe. It was then recited that the Second judicial circuit was composed of Milwaukee county containing more than the required population, and that there was need of an additional circuit judge in that circuit. It was then enacted that an additional circuit judge be elected in this circuit and his election and term of office provided for. Then occurs the following sentence in the third section of the act: “The judges of the Second judicial circuit shall, on and after January first A. D. 1900, receive a salary of five thousand dollars per annum payable as other circuit judges are paid, provided that the excess over the compensation of other circuit judges shall be paid by the county of Milwaukee in the same manner as the compensation of judges of the superior court is paid.” It so happened that the term of Hon. D. H. Johnson, the sitting single judge of the Second circuit, would expire January 1, 1900, and the term of the additional judge provided by the act would commence on or after that day. The judges of the superior court for Milwaukee county were paid quarterly by Milwaukee county. We give to the word “compensation” found in this act the same meaning which the word has in the state Constitution. Section 26, art. 4; section 10, art. 7; section 5, art. 5; section 2, art. 6; section 5, art. 6. The “compensation” of other circuit judges did not include the reimbursements provided for by chapter 263, Laws of 1889, because to hold otherwise would give this word a meaning different from its manifest meaning in the constitutional provisions above referred to, and would convict the Legislature of passing an unconstitutional law when it enacted chapter 263, supra, and because that act itself expressly distinguished the sum so awarded from salary while in the Constitution the words “salary” and “compensation” are employed synonymously. The “excess over the compensation of other circuit judges” was therefore at this time the excess of $5,000 over $3,600 or $1,400.

[2] At the next session of the Legislature chapters 138 and 414, Laws of 1901, were enacted, and these acts raised the salaries of judges whose terms should thereafter (May 14, 1901) commence and again distinguished between the salary and the allowance for expenses. These acts last mentioned purported to amend only chapter 12, Stats. 1898, and repealed all acts and parts of acts in conflict with their provisions. They did not in words amend or purport to amend or repeal chapter 377, Laws of 1897, relating to the judges of the Second circuit, and they did not raise the salary of these judges, but did raise the salary of all such judges whose salaries were fixed by chapter 12, Stats. 1898, from $3,600 to $4,000 per annum, and consequently diminished the “excess” above mentioned from $1,400 to $1,000. The judges of the Second circuit acquiesced during their first terms in that construction of chapter 377, Laws of 1897, which made the “excess” which they were to be paid by Milwaukee county only $1,000, and thereafter both parties acquiesced in a construction of these statutes which would exclude this $400 for expenses. In other words, the judges of the Second judicial circuit continued to receive from the county $1,000 per year. We do not consider chapter 377, Laws of 1897, repealed by the general clause repealing all acts or parts of acts which in any way conflict therewith found in chapters 138 and 414, Laws of 1901. A law relating to the salaries of one class of circuit judges does not in any way conflict with a law fixing the salaries of another and different class. There is no necessary antagonism or conflict. If section 170, ch. 12, Stats. 1898, and chapter 377, Laws of 1897, stood together, and were not in conflict prior to the enactments of 1901, it is hard to see how they became in conflict by reason of the enactments of 1901.

[3] Repeals by implication are not favored, and it has been decided that a general repealing clause like this did not repeal other acts relating to the same general subject, unless there was actual conflict between the statutes. Simmons v. Bradley, 27 Wis. 689;Lewis v. Stout, 22 Wis. 234, marg. Besides, chapter 377, Laws of 1897, was long after, and by chapter 2, Laws of 1903, by the Legislature recognized as in force. State ex rel. Gates v. Commissioners of Public Lands, 106 Wis. 584, 82 N. W. 549. This, however, is not conclusive; only a makeweight. Walworth County v. Whitewater, 17 Wis. 193;Janesville v. Markoe, 18 Wis. 351.

[4] Chapter 520, Laws of 1905, then came into existence in these words: “The judges of the circuit courts shall receive as salary, in addition to the amount now received, the sum of six hundred dollars per annum, payable quarterly out of the state treasury.” Can this be limited to judges outside of the Second circuit, or does it apply to all the circuit judges of the state of both classes, so that those outside of the Second circuit who were then receiving $4,000 yearly should be entitled to $4,600, and those who were receiving $5,000 yearly should be entitled to $5,600, thus leaving the excess of the salaries of the judges of the Second judicial circuit to be paid by Milwaukee county still $1,000? We are satisfied that this act must be applied to all circuit judges adding to the amount “now received” by each. It is an independent enactment, contains no reference to any prior statute, refers to existing conditions of fact, and uses words applicable to all circuit judges in the state. We perceive no...