Shubat v. State

• Decision Date: 15 April 1971
• Docket Number: No. 11962,11962
• Citation: 484 P.2d 278,157 Mont. 143
• Parties: Ed SUHBAT et al., Plaintiffs and Respondents, v. The STATE of Montana, Defendant and Appellant.
• Court: Montana Supreme Court

Page 278

484 P.2d 278

157 Mont. 143

Ed SUHBAT et al., Plaintiffs and Respondents, v. The STATE of Montana, Defendant and Appellant.

No. 11962.

Supreme Court of Montana.

Submitted Feb. 8, 1971.

Decided April 1, 1971.

Rehearing Denied April 15, 1971.

Robert L. Woodahl, Atty. Gen., Lawrence Huss, Asst. Atty. Gen. (argued), John Northey, Asst. Atty. Gen., Helena, for defendant and appellant.

Sandall, Moses & Cavan, Charles F. Moses and Russell K. Fillner (argued), Billings, for plaintiffs and respondents.

PER CURIAM:

This is an appeal from a judgment of the district court, which declaratory judgment found for the plaintiffs and against the State of Montana.

The plaintiffs are representative county officials, bringing the suit on their own behalf and on behalf of all other county officials and employees similarly situated. Plaintiffs brought the action in district court for a declaratory judgment to determine whether they were entitled during their present term of office to certain pay raises granted under section 1 of Chapter 284, Session Laws of 1969, codified as section 25-605, R.C.M.1947.

Primarily involved is the effect of Article V, section 31 of the Constitution of Montana.

Article V, § 31 provides:

'Sec. 31, Except as otherwise provided in this constitution, no law shall extend the term of any public officer, or increase or diminish his salary or emolument after his election or appointment: provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this constitution, where such salaries or emoluments are not fixed by this constitution.'

Section 25-605, R.C.M.1947, is popularly called the formula salary law. Simply put, the law provides the computation of the salaries of the respective officers by adding salaries as listed in respective columns entitled, 'Population of County' and 'Taxable Valuation of County'. This formula type salary bill was first enacted in 1945.

All of the plaintiffs involved were elected or appointed to a term of office before the amendment of section 25-605 by the 1969 session of the legislature. The district court granted summary judgment, which judgment simply adjudged that the plaintiffs and all those similarly situated are legally entitled to receive the increased salaries forthwith fixed by the amended section 25-605.

The issue presented is whether officers elected or appointed before the enactment of section 1, Chapter 284, Laws of 1969, (codified and hereinafter referred to as section 25-605), are entitled to the raises in salary or emoluments provided therein during their present term.

This Court has previously considered Article V, § 31 in several cases. In State ex rel. Jackson v. Porter, 57 Mont. 343, 347, 188 P. 375, 376, in the year 1920 this Court said in part as follows:

'The provision in the federal Constitution and the corresponding provision in the several state Constitutions all have the same history and the same purpose in view. The purpose is to secure, as far as possible, the independence of each co-ordinate branch of government, and to that end relieve the lawmaking branch from the importunities of officeholders who might seek increased compensation, not for the office, but for themselves, and what was of infinitely greater consequence, remove from the lawmakers the temptation to control the other branches of government by promises of reward in the form of increased compensation or threats of punishment by way of reduced salaries; or, stated differently, the sole purpose of the constitutional limitations is to remove from the sphere of temptation every public officer whose office is created by the Constitution and whose official conduct in the remotest degree might be influenced by the hope of reward or the fear of purnishment. So far as there is reason for the rule which underlies the limitations, it must be enforced with the utmost rigor, but whenever the reason for the rule ceases, so does the rule itself.

'In the absence of constitutional inhibition, there cannot be a question that the Legislature could have increased judicial salaries and could have made the increase inure immediately to the benefit of every judge of the state; but because of the possibilities of the abuse of such power our Constitution wisely forbade that the increase should affect any one whose official conduct under any circumstances might be influenced by the result.'

The Court was dealing with an across the board pay raise granted to the district judges of the state by virtue of chapter 176, Session Laws of 1919, which stated:

'Section 1. That section 292 of the Compiled Laws of the State of Montana of 1907, be amended to read as follows:

'Section 292. The annual salary of each District Judge is Four Thousand and eight hundred dollars.

'Section 2. All Acts and parts of Acts in conflict herewith are hereby repealed.'

The Court in the Jackson case determined that the constitutional restriction was not applicable to a judge who was appointed to fill a vacancy after chapter 176, Session Laws of 1919, had been passed.

Next, this Court decided Broadwater v. Kendig, 80 Mont. 515, 261 P. 264, in the year 1927. In that case a mayor was beginning his second term of office on May 1, 1926. During his first term he had received $600 per year. On April 22, 1926 the city council passed an ordinance raising the salary to $165 per month. This ordinance became effective on May 22, 1926. Mayor McKelevy had been re-elected prior to the adoption of the new ordinance on April 22, but did not begin his second term until May 1.

In Kendig this Court held that Article V, Section 31 did not apply because it applies only to the power of the Legislature. The Court based its decision on a statute which forbade increases to certain city officials 'during their term of office' and explained that the raise given to McKelvey was made effective before the mayor assumed his new term.

In Poorman v. State Board of Equalization, 99 Mont. 543, 45 P.2d 307, the Court held that income taxes did not decrease the salary during a term of office.

Next the Court had Adami v. County of Lewis and Clark, 114 Mont. 557, 559, 138 P.2d 969, (and its companion case Whalen v. Bd. of Co. Commissioners of Lewis &amp Clark County) in 1943. The legislature in 1943 enacted Chapter 169, Session Laws of 1943, which sought to give salary increases of 10% to all elected county officials. The legislature had declared an emergency in the wartime situation. Nevertheless this Court in a unanimous opinion held the Act to be in excess of legislative authority as it applied to those county officers elected or appointed prior to its enactment. The Court said:

'There can be no possible doubt that the decision with reference to Chapter 169 is correct, and that the legislative intent to make it effective as to the terms of persons elected or appointed prior to its effective date is unconstitutional as in excess of the legislative power. The people could hardly have made clearer or more definite the provision of section 31, of Article V forbidding the legislature either to increase or to diminish the salary or emolument of any officer after his election or appointment. On the other hand, it is apparent that the constitutional provision does not forbid the application of Chapter 169 to an officer whose election or appointment occurs after the effective date of the Act, and that as to him Chapter 169 is valid.'

Thus, both Jackson and Adami considered the question of across the board raises and found them to be unconstitutional as applied to officers elected or appointed before the enactment of the raises.

And, finally, so far as historical precedent in Montana is concerned, the Legislature in 1967 by Chapter 154 submitted to the voters:

'An Act to Submit to the Qualified Electors of Montana An Amendment to Section 31 of Article V, of the Constitution of the State of Montana, Relating to the Terms of Office and Salaries of Public Officers; to Remove the Prohibition Against Increase of Such Salaries During the Terms for Which Such Officers Have Been Elected or Appointed.

'Be it enacted by the Legislative Assembly of the State of Montana:

'Section 1. Section 31, article V, of the constitution of the state of Montana, is amended to read as follows:

"Sec. 31. Except as otherwise provided in this constitution, no law shall extend the term of any public officer, or diminish his salary or emolument after his election or appointment; provided, that this shall not be construed to forbid the legislative assembly from fixing the salaries or emoluments of those officers first elected or appointed under this constitution, where such salaries or emoluments are not fixed by this constitution.'

'Section 2. When this amendment is submitted to the electors of the state of Montana, there shall be printed on the ballot the full title and section 1 of this act and the following words:

"( ) For the above amendment.

( ) Against the above amendment.'

'Approved: February 24, 1967.'

The voters in the general election of 1968, voted 137,587 against to 87,027 for, thus rejecting the amendment which would have taken out of Art. V, § 31 the prohibited 'increase'.

Also, the legislature in 1963 by Chapter 92 submitted to the voters Article VIII, § 29, which contained an identical prohibition against increases in salaries or emoluments to judicial oficers. In the general election in 1964 the people voted 65,679 against and 119,229 for, thus removing the prohibited 'increase' as to judicial officers.

In the face of this historical precedent the instant action for declaratory judgment was brought to determine the validity of section 25-605 as it applies to increases in salary to county officers elected or appointed prior to the Act. The district judge found that the raises were effective as to those officers elected or appointed before the enactment of ...