Morgan County Commission v. Powell

• Decision Date: 04 April 1974
• Citation: 292 Ala. 300,293 So.2d 830
• Parties: MORGAN COUNTY COMMISSION et al. v. Judge Newton B. POWELL et al. SC 404.
• Court: Alabama Supreme Court

Page 830

293 So.2d 830

292 Ala. 300

MORGAN COUNTY COMMISSION et al. v. Judge Newton B. POWELL et al.

SC 404.

Supreme Court of Alabama.

April 4, 1974.

Julian Harris, Decatur, Truman Hobbs, Montgomery, for appellants

Robert Straub, Decatur, for appellees.

Lusk & Lusk, Guntersville, amicus curiae for Alabama Association of Circuit Judges.

Oakley Melton, Jr., and Champ Lyons, Jr., Montgomery, amicus curiae for Association of County Commissions of Alabama.

HARWOOD, Justice.

In 1959, an Act was passed providing for the allowance of stenographic assistance to each judge of the Eighth Judicial Circuit. For convenience, this Act may be found as Section 125(28a), Title 13, Code of Alabama 1940 (pocket part). The Act reads:

'Section 1. Each judge of the Eighth Judicial Circuit is hereby authorized to employ such clerical or stenographic assistance as may be necessary to carry out the duties of his office. The salary of each clerk or stenographer employed hereunder by any circuit judge shall be 'Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.' (First Ex. Session, 1959.)

fixed by such judge, subject to the approval of the county governing body of the county in which such judge resides, and shall be paid in equal monthly installments out of the county treasury of such county upon certification by the circuit judge.

The salaries of the stenographers to the judges were fixed for several years by conferences between the judges and the Chairman of the County Commission. In fairly recent times, the stenographer of one of the judges left his employment to accept a better paying position with a local industry. This employee had not been replaced at the time of the proceedings below.

Sometime during the employment of the stenographers, the practice developed of fixing their compensation on a pay basis identical with that of certain other similar county employees. A merit system with job descriptions for county employees was later used.

On 31 July 1971, the County Commission by letter requested a tentative budget for the office of each judge. A joint budget was submitted pursuant to this request. Included in this tentative budget were items for secretarial salaries for each judge individually. These salaries ranged from $4,680.00 per annum for one judge, $6,192.00 for a second judge, and $7,200.00 for the third judge, depending on the seniority of the judge by whom the secretary was employed. By letter, the Chairman of the Commission notified the judges that the salaries of the secretaries for the judges would be in accordance with a survey that had been conducted by an employee of the State Personnel Board sometime before. The judges had offered no ojection to this survey at the time it was made, but specifically refused to be bound by the survey. The judges furnished the job surveyor with job descriptions, and outlines of the duties and responsibilities of their secretaries.

In this job survey, newly employed secretaries to the judges were classified as Clerk Steno II, Range 22, Step 1, at a salary of $348.00 per month. We find nothing in the record pertaining to the salary scale fixed in the survey for more experienced secretaries.

In a conference in January 1973, between the judges and the Chairman of the County Commission, the judges were informed that the proposed pay scale submitted by the judges in their tentative budget would not be accepted, and that the courts' secretaries would be paid as 'Clerk-Typists.' This salary scale was considerably less than that proposed in the judges' tentative budget.

It is recited in the decree rendered in this case that at the January 1973 conference:

'The Chairman * * * took the position that he (the Commission) had the authority to fix their (secretaries) compensation and the court must abide by his decision which he felt was fair and in accord with the survey made. The Presiding Judge took the position that the job description was tailored to fit the range rather than vice versa.'

The pay of the secretaries continued to be in the amount fixed in the survey.

Upon the resignation of Judge Hundley's secretary in March 1973, he thereafter on 18 April 1973, requested a convocation of the judges for the purpose of conducting a wage survey which would reflect the reasonable worth of legal stenographic service in and around the Eighth Judicial Circuit so that it might be certified to the County Commission.

The presiding judge set the convocation for 20 April 1973, and requested that all three judges of the Eighth Judicial Circuit The three judges inquired of the four other courts in the area, of numerous attorneys in the circuit, and of the larger industries as to secretarial pay. The court then convened and made a detailed finding of fact and fixed the salaries of the secretaries in accordance with the evidence adduced as a result of the judges' inquiries. The Register was directed to certify these findings to the Commission for action 'in accord with the common law pertaining to the inherent powers of a constitutional court and by the statute set forth above,' i.e., Sec. 125(28a), Title 13, Code of Alabama 1940 (pocket part).

make inquiry in their georgraphical areas as to the reasonable and fair worth of legal secretaries.

As above stated, this finding was rejected by the Commission.

On 27 April 1973, the court issued an order to the Commissioners to show cause why the proposed salary schedule for the judges' secretaries was not reasonable and why it should not be implemented.

This matter was set for hearing on 3 May 1973. At the hearing the Commissioners first moved that the three judges recuse themselves on the ground that 'they have a personal interest in the matters involved.' After an argument on this motion, it was denied, all three judges concurring.

Thereupon the Commissioners filed a written answer. The answer, in parts pertinent to this appeal reads:

'Considering the total welfare of the County, its income, its obligations and required expenditures, the salary schedule of the stenographers and clerical employees of the other officers of the County required to be paid by the Commission and that of its own stenographers and clerical employees, it declined to approve the salary schedule submitted to it for approval by the Judges of the court.

'It will approve such schedule which may be submitted to it, fixed for Morgan County by the State Personnel Board for all stenographic and clerical employees of Morgan County.'

The Commissioners declined to offer any evidence, and after counsel had presented their arguments as to the legal principles involved, counsel for the Commissoners moved for submission of the cause on their answer. The matter was then taken under advisement by the court.

On 7 May 1973, a decree was entered by the Honorable Newton B. Powell, Presiding Judge, by which it was considered adjudged and decreed that the salary schedule for their respective stenographers theretofore determined by the court was reasonable and was to be put in force, and the Morgan County Commission was taxed with costs, and was ordered to pay the salaries of the stenographers as fixed by the court.

The decree entered by the court is quite lengthy, covering some 31 transcript pages.

The facts are recited in the first three pages and thereafter a number of cases are cited from a substantial number of other jurisdictions supportive of the conclusions reached in the decree that the court had inherent power and statutory power, to fix the salaries of the secretaries, and order the payment of the salaries by the Board of Commissioners.

As stated in State ex rel. Day et al. v. Bowles et al., 217 Ala. 458, 116 So. 662:

'A county is a unit of government invested with important functions of local character, and also in relation to the state, its revenues, the administration of its laws, etc. These functions involve the exercise of legislative, judicial, and executive or administrative powers. These powers are, in the main, conferred and defined by state legislation, and to be exercised by a governing body or bodies of legislative creation.'

By Section 12, Title 12, Code of Alabama 1940, whose precursors have been in seven prior codes, the authority of county governing bodies and their powers to act in certain areas, it spelled out in detail. By Section 14, Title 12, Code of Alabama 1940, in addition to the authority granted generally in Section 12, it is specifically provided that the courts of county commissioners, boards of revenue, or other county governing bodies, must adopt a budget system for the conduct of the affairs of the county, and to this end May appropriate from the county treasury sufficient funds to pay the actual expenses of the county as shown by the budget so adopted.

In the aspect of appropriating money from the county treasury, a county governing body must be deemed as exercising a legislative power.

While many of the cases concerning the point now contain statements relative to the exercise of legislative, executive, or judicial power on the state level, no valid reason appears to deny the application of these same principles on a lower or county level. No distinction is made therefore in our discussion of the powers and limitations of the functions of the three branches of government whether on the state level or county level.

In brief counsel for appellants have raised three material points:

(1) That the court below did not possess inherent power, nor statutory power, under Section 125(28a), Title 13, supra, to order the Commission to put into effect the salary schedule fixed by the judge or judges, since this concerned the appropriation of public funds, a matter within the province of the legislative branch of government rather than the judicial branch;

(2) That the court erred in denying appellants' motion that either or all of the judges recuse...