State ex rel. Bashford v. Frear

• Decision Date: 10 March 1909
• Citation: 120 N.W. 216,138 Wis. 536
• Parties: STATE EX REL. BASHFORD v. FREAR, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

138 Wis. 536

120 N.W. 216

STATE EX REL. BASHFORD

v.FREAR, SECRETARY OF STATE.

Supreme Court of Wisconsin.

March 9, 1909.

Concurring Opinion March 10, 1909.

Syllabus by the Judge.

Article 7 of the Constitution creates the office of justice of the Supreme Court, fixes the term of office, and provides for filling the same, and such term is a unit, including, so far as such article is concerned, periods within the full term of incumbency by appointment or election to fill a vacancy.

Generally speaking, a constitutional prohibition as to increase or decrease of the salary incident of an office during a term thereof, whether in the form of a prohibition of such a change during the term for which an officer is elected or during an officer's term of office, refers to the full term, fixed by the fundamental or other law.

In the situation last mentioned, generally speaking, a person appointed to a vacancy or elected thereto, does not have a term of office, in the constitutional sense, but takes a part of the unit, to wit, of the full term. He merely steps into the place and term of his predecessor and becomes subject to the incident of that term, the salary.

Whether “his term of office” in section 26, art. 4, of the Constitution of the state of Wisconsin is synonymous with his incumbency of the office under a particular election or appointment, or is synonymous with the full term of the office created by article 7, is not so free from doubt as not to be open to solution by judicial construction.

The language “his term of office” in the Constitutional provision creating legislative disability to change the compensation of public officers under some circumstances, is ambiguous.

The language may, as an original proposition, be regarded as treating with the term of office created by article 7 or any particular incumbency whether of a full term or part of a term.

In case of an ambiguous law being executed by administrative officers as having a particular meaning which is reasonable, such practicable construction is entitled to more or less weight, according to circumstances, in determining the intent of the lawmakers.

In case of such practicable construction obtaining uninterruptedly for a very long period, particularly so long as 50 years, it is entitled to controlling weight in determining the intent of the lawmakers.

Application for a writ of mandamus to compel the Secretary of State to issue his warrant to the State Treasurer in favor of the relator, Hon. R. M. Bashford, for $500 as balance of his salary as Justice of the Supreme Court for the period from January 1, 1908, to July 1, 1908. Granted.

Hon. John B. Cassoday, pursuant to election and qualification, entered upon a full term of 10 years as justice of this court on the first Monday of January, 1900. The salary fixed by law for a justice of such court was $5,000 per year, payable quarterly in advance. The office became vacant by his death, prior to January 4, 1908. In the meantime the salary was increased to $6,000, payable as before. On such date Hon. R. M. Bashford was duly appointed to fill the office made vacant as aforesaid, such appointment pursuant to section 9, art. 7, of the state Constitution, to continue until the election and qualification of a successor of the deceased justice. A successor so elected and qualified duly assumed the duties of the office July 1, 1908. In the meantime, the Secretary of State issued warrants to said Bashford aggregating $2,500, being the amount the deceased justice would have been entitled to had he lived and continued his incumbency, refusing to issue warrants to said Bashford for a half year's salary at the rate of $6,000 per year, which he claimed was his due. He accepted the warrants without prejudice to his right to the additional $500. The Secretary refused to recognize such claim upon the ground that the prohibition contained in section 26, art 4, of the state Constitution as regards any increase of a state officer's salary “during his term of office” relates to the full term created by the Constitution, or other written law, and not the particular part thereof during which it may be filled by an incumbent, but covers all parts as a unit, and that section 1, c. 414, p. 589, Laws 1901, whereby the salary incident was changed to $6,000 with a provision that it should not apply to the remainder of the terms of justices then in office, had reference to the regular terms of office, not to particular persons filling the offices for particular periods.

R. M. Bashford and John A. Aylward, for petitioner.

F. L. Gilbert, Atty. Gen., and Russell Jackson, Dep. Atty. Gen., for defendant.

MARSHALL, J. (after stating the facts as above).

This application presents a very interesting and somewhat grave question. In all, or most written Constitutions, provision is made against changing an officer's salary during his term of office.

The temptation, which competency of the Legislature to change salaries of officers during terms of office, would hold out for it to do so, for bad as well as for worthy purposes, and for executives to manipulate such a situation to serve either purpose, or to favor one officer above another, or officers to scheme for their own pecuniary aggrandizement,--has been supposed to be so fraught with danger, interfering with that high standard of official life requisite to the best public service, that in the fundamental laws, generally, absolute disability of the lawmaking power to change the status of the salary of an officer after the commencement of the term for which he was elected, as it is sometimes phrased, or during his term of office, as it is likewise phrased, is found.

The general trend of authority is this way. The Constitution or other written law creates the office and fixes the term thereof and gives thereto the incident of a specific salary. The office, the term and the incident may exist for any period of time without the office being filled or without there being any method provided for filling it. Upon such method being provided and the office being filled the incumbent takes it with its fixed term and incident. If he goes out during such term and another steps in the latter does not take a new term but takes a part of the same term prior thereto enjoyed by his predecessor. The term continues during its fixed period with its incident for such period regardless of how many incumbents there may be, each succeeding the other. Where another incumbent goes in at the commencement of the full term prescribed by law, such full term becomes his term, within the meaning of language in the fundamental law prohibiting any change in an officer's salary during his term of office, and in case of his going out during such term and being succeeded by another such other succeeds to the same term as that held by his predecessor, so that, during his incumbency, the full term, so far as not yet run, becomes his term in the constitutional sense.

That has been supposed by courts which have dealt with the matter to be the proper construction to be placed upon a constitutional provision similar to ours, in view of the logic of the situation, regardless of whether the language of the Constitution prohibits a change of salary of an officer “during his term of office” (Larew v. Newman, 81 Cal. 588, 23 Pac. 227;Storke v. Goux, 129 Cal. 526, 62 Pac. 68); or “during the term for which he was elected” (Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674); or “the time for which he was elected” (Gaines v. Horrigan, 72 Tenn. 608).

Those decisions cited by counsel, as well as People ex rel. Le Fevre, 21 Colo. 218-229, 40 Pac. 882;Simpson v. Willard, 14 S. C. 191;Jameson v. Hudson, 82 Va. 279; State ex rel. v. Schmidt, 14 Mo. App. 589, being all the cases of moment on either side, except one hereafter noticed, are to the effect that the term of office fixed by law, in the absence of some clear indication to the contrary, is a unit; that the incident thereto is as unvariable as the term, and that one who comes in to fill a vacancy does not take a new term but merely takes up the work of the old term with its duties and its incidents. The industry of counsel has resulted in placing before us all the authorities extant, bearing helpfully on the question. None of them go back within many years of the time when the administrative officers of this state, without judicial guidance, took a stand in regard to the matter.

The petitioner cites Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304, as holding contrary to the foregoing, and that the words “term of office for which he is elected” in the Minnesota constitutional prohibition against a senator or representative holding any office under the authority of the United States or the state, with certain exceptions “during the term for which he was elected” means during the term of his incumbency; that the term for which he was elected is synonymous with his term of office, which means during his incumbency of the office; that during one full term of office there may be several successive incumbents, each having a fraction of a full term, and in that situation have a term of office which as to him is “his term of office.”

That logic is diametrically opposed to the other cases cited and would go far to sustain the petitioner's petition, if the court which adopted it had adhered to its decision. It had the support of a long line of opinions of the state's highest legal adviser but when the court came to face the situation created by such decision, reinforced by such legal opinions, 15 years later, it overruled it, adopting, without qualification, the same logic and arriving at the same conclusion as courts had before and have since, to which we have referred.

In view of the result reached it is useless to spend further time in the discussion of authorities. So much as has been said seemed to be required to show that the authorities, upon which the learned Attorney...