Pruett v. Delony, 8 Div. 484

Decision Date21 September 1972
Docket Number8 Div. 484
Citation269 So.2d 109,289 Ala. 578
PartiesDavid W. PRUETT et al. v. Clifford K. DELONY.
CourtAlabama Supreme Court

Harris, Harris, Shinn & Harris, Decatur, for appellants.

McDonnell & Jones, Sheffield, for appellee.

PER CURIAM.

The only point raised by this appeal is whether the Honorable Clifford K. Delony, circuit judge of Colbert County, can require the Colbert County Commission to pay his supplemental salary as provided by law.

Judge Delony filed a mandamus petition to compel the county commission to pay his supplemental salary which he claimed he was entitled to by law. A special judge appointed to hear the case decided in his favor and ordered the county commission to pay him $15,164.50, the amount the parties agreed was due if he was legally entitled to recover.

The Colbert County Commission appealed and filed a supersedeas bond.

Appellants contend that each legislative act purportedly authorizing the supplemental salary during his six-year term beginning in January 1965 was unconstitutional, and that the Legislature abolished the county supplement beginning with his new term in January 1971. Those are the questions which we must consider and decide.

Judge Delony was elected on November 5, 1956 as judge of the Thirty-first Judicial Circuit, then consisting of Franklin and Colbert counties, to fill the unexpired term of the judge who had resigned. He was elected for a full six-year term in November 1958, the term beginning on the first Monday after the second Tuesday in January 1959. He was re-elected in November 1964 for a six-year term beginning on the first Monday after the second Tuesday in January 1965.

The Alabama Legislature, in 1965, divided the Thirty-first Judicial Circuit consisting of Colbert County and Franklin County, into separate circuits. Colbert continued as the Thirty-first Circuit. Franklin became the Thirty-fourth Circuit. Act No 406, Acts of Alabama, Regular Session, 1965, p. 586. By Act No. 156 of the Special Session of the Alabama Legislature of 1966 (Acts of Alabama, Special Session, 1966, p. 182) an additional judgeship for the Thirty-first Judicial Circuit was created. Judge Delony held judgeship no. 1. Judge Leonard I. Burt was appointed to judgeship no. 2 on November 28, 1966 and served under this initial appointment until December 5, 1968, when he began a new term by virtue of his election in November 1968.

Act No. 156 required judge no. 2 to be 'elected and qualified as provided in Article VI, sections 158 and 159, of the Constitution of Alabama.' The act further provides: 'The judge for the additional judgeship shall be elected thereafter as other circuit judges in this state.'

Judge Delony claims he was entitled to the following supplemental

compensation.

                 PERIOD         RATE                AUTHORITY               AMOUNT
                --------  ----------------  -------------------------  ----------------
                8/16/65   $1,200 per annum  Act.  No. 569, Acts of       $3,958.06
                   to                       Alabama 1947, p. 402
                12/ 4/68                    (Tit. 13, § 177(1b)
                                            Code, Recomp., 1958)
                                            Act.  No. 406, Acts 1965
                                            p. 586 (Tit. 13, § 112
                                            Code, Recomp. 1958)
                12/ 5/68  1/4 of $12,000    Act.  No. 195, Reg.          $  375.00
                   to     per annum         Session, 1967, p. 560
                1/19/69
                1/19/69   1/4 of $15,000    Act.  No. 195, Reg.          $7,500.00
                   to     per annum         Session, 1967, p. 560
                1/18/71                     Act.  No. 350, Acts 1967,
                                            p. 909
                1/18/71   20% of $18,000    Act.  No. 1095, Acts 1969,   $3,435.66
                   to     per annum         p. 2030; Act.  No. 1123,
                12/31/71                    Acts of Alabama, 1969,
                                            p. 2082                    ----------------
                                                                       $15,268.72
                                            Credit: Payment by
                                              Colbert County 1/31/69       104.16
                                                                       ----------------
                                                                       $15,164.56 1
                                                                       ----------------
                
For Period August 16, 1965 to December 4, 1968

Stated succinctly, Judge Delony contended successfully in the trial court that when Colbert County became a one county circuit under the provisions of Act No. 406, Acts of Alabama, 1965, p. 586, effective August 16, 1965, the provisions of Act No. 569, Acts of Alabama, 1947, p. 402, became effective and he, as judge of the one county circuit, became entitled to the $1,200 per annum supplement the 1947 Act required the county to pay. To this argument, the county claims that the so-called Boutwell Amendment (Amendment 92, Constitution of Alabama, 1901) prohibits the operation of the 1947 Act, even though the 1947 Act predates the adoption of the Boutwell Amendment, because the payment of such supplement would be to increase Judge Delony's salary during his term, which all parties admit was for six years, beginning on the first Monday after the second Tuesday in January, 1965.

In discussing this contention, we are guided to our result by those wellknown principles of law which provide that it is our duty to uphold rather than destroy a legislative anactment, unless convinced to the contrary beyond a reasonable doubt. We presume the act is constitutional, until clearly convinced to the contrary. Pruett v. Patton, 288 Ala. 710, 265 So.2d 130, 1972.

In view of the fact that the act which authorized the county supplement was passed in 1947, prior to the time of the adoption of the Boutwell Amendment, the question we must answer is as follows: Did the Legislature violate the Boutwell Amendment in 1965 by creating the one-county circuit, thereby making the judge thereof eligible for the supplemental salary which was authorized by the 1947 Act? We think not. This court had under consideration a similar problem in Pruett v. Patton, supra. We do not think the Legislature, by creating the Thirty-fourth Judicial Circuit, was using a colorable pretext to evade the Constitution. In fact, Act No. 406, 1965, supra, on its face, shows there were several one county, one judge circuits in the state. In each of these other circuits the judges were entitled to and, for aught appearing, were receiving the supplemental salaries authorized by the 1947 Act. While this court has never construed Amendment 92 insofar as its application to circuit judges is concerned, it would seem fair to interpret Amendment 92 to allow a circuit judge who becomes, by operation of law, entitled to receive a supplemental salary to receive such salary if it is being legally paid to other judges in the state similarly situated. The clear intent of Amendment 92 seems to be that if one 'member of a court' becomes constitutionally and legally entitled to an increase in salary then every other member of the court becomes entitled to such increase. We think the intent of Amendment 92 was Not to prohibit one circuit judge from receiving the benefits of a salary increase if another circuit judge, similarly situated, was entitled to receive such amount under provisions of law. In determining this, we are mindful that the amounts of county supplements vary from circuit to circuit. For instance, if the judge of a one county circuit in one part of the state receives an increase in salary after the completion of a term, then in that event, every other judge of a one county circuit is entitled to receive the same benefit, if the Legislature has so provided. The converse is also true. If the Legislature should abolish the county supplement in all one county circuits, the decrease in salary would take effect after the expiration of the term of office of the judge whose term first expired.

Summarizing as to this period, in 1947 by general act (Act No. 569) the Legislature directed that a county supplement of $1,200 per year be paid in all one county circuits with two circuit judges where the population of the county was less than 113,000. The act was amended in 1949 and is listed in the 1958 Recompilation as Tit. 13, § 177 (1b). This amendment also carries forward the 1947 provision that one county circuits with only one judge shall be paid $1,200 per annum. So when Judge Delony ceased to be a judge of a two county circuit, and became the judge of a single county circuit, he fell into the minimum county supplement of $1,200. When another judgeship was created and the circuit had two judges, the judges were in a different category but received the same sum as a county supplement under § 177(1b).

The trial court did not err in continuing the $1,200 supplement for this period.

For Period December 5, 1968 to January 18, 1971

This period was divided in briefs, but as the same law applies to both periods, we consolidate it into one.

As we understand it, Judge Delony claims that the county supplement during this period should be one-fourth of the amount of his salary paid by the state, under the provisions of Act No. 195, Acts of Alabama 1967, p. 560, which provided in pertinent part:

'Beginning with the next term of office of any circuit judge in any judicial circuit composed of only one county having two circuit judges and a population of not less than 46,500 nor more than 48,000 inhabitants according to the last or any subsequent federal decennial census, the salary of each such circuit judge shall be supplemented by the county composing any such circuit by an amount equal to one-fourth of the salary now or hereafter paid such judge by the State of Alabama. The supplement hereby authorized shall be paid in equal monthly installments out of the general fund in the county treasury, shall be in addition to the salary paid such judges by the state, and shall be in lieu of any and all other salary supplements heretofore...

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