State ex rel. Conway v. Elvod, 67

• Decision Date: 30 October 1975
• Docket Number: No. 67,67
• Citation: 70 Wis.2d 448,234 N.W.2d 354
• Parties: STATE ex rel. CONWAY, County Judge, Respondent, v. Adrian ELVOD, County Clerk, Appellant. (1974).
• Court: Wisconsin Supreme Court

Page 354

234 N.W.2d 354

70 Wis.2d 448

STATE ex rel. CONWAY, County Judge, Respondent, v. Adrian ELVOD, County Clerk, Appellant.

No. 67 (1974).

Supreme Court of Wisconsin.

Oct. 30, 1975.

Laurence E. Gooding, Jr. and Patrick M. Ryan, Milwaukee (Quarles & Brady, Milwaukee, of counsel), for appellant.

Cole, Conway & Brazeau, Wisconsin Rapids, LaFollette, Sinykin, Anderson & Abrahamson, Madison (Gordon Sinykin and Angela B. Bartell, Madison, amicus curiae, of counsel), for respondent.

HEFFERNAN, Justice.

The county clerk, Adrian Elvod, is appealing from the circuit court's writ of mandamus directing him, as the agent for Wood county, to continue to pay county supplements to the salary of Byron B. Conway, a county judge of Wood county. We conclude that the writ of mandamus was properly issued and that the supplement to Judge Conway's salary now in effect must be continued until such time as it is terminated according to law.

The action for mandamus was commenced by Byron B. Conway, and the parties stipulated to the facts. Judge Conway was elected county judge of Wood county in the spring election of 1967. He commenced service of that term on January 1, 1968. He became a candidate to succeed himself in the spring election of 1973 and was elected to office. His new term commenced on January 7, 1974.

The defendant, Adrian Elvod, is the clerk of Wood county. In that capacity he is charged with the duty of paying authorized county supplements.

On May 9, 1972, the county board adopted a resolution increasing the county supplement to the Wood county judges from $1,500 to $2,000 a year. That resolution further provided that, in the event of increases in state salaries to county judges, such increases were to be deducted from the county supplement. In the event the total state salary reached $20,500 or more, the county supplement would be terminated. As a result of state legislative action, state salaries for county judges were increased to $22,974 on August 5, 1973. This date was subsequent to the re-election of Judge Conway to office in April, 1973. The county continued its payments through August 30, 1973, and effective that date all supplements were suspended by the direction of the chairman of the county budget and finance committee.

A county is totally a creature of the legislature, and its powers must be exercised within the scope of authority ceded to it by the state. Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis.2d 310, 317, 318, 116 N.W.2d 142; Kyncl v. Kenosha County (1968), 37 Wis.2d 547, 555, 155 N.W.2d 583. The question, therefore, becomes a matter of statutory construction: Does the county have the authority conferred upon it by the legislature to effect a diminution or the abolition of county supplements during a term of office of a county judge, as such is defined by statute. The answer is clearly no.

Chapter 90 of the Laws of 1973 set the salaries to be paid by the State of Wisconsin for county judges at $22,974 and imposed an overall annual limitation, including county supplements, of $33,500 for the period July 31, 1973, to December 31, 1974, and at the end of that period imposed a ceiling of $34,500.

In accordance with well established principles of Wisconsin law, ch. 90 also provided, in recreating sec. 20.923(1):

'The salary-setting authority of individual boards, commissions, elective and appointive officials elsewhere provided by law is subject to and limited by this section . . ..'

Sec. 66.195, Stats., provides:

'66.195 Judicial salaries. The governing body of any county may during the term of office of a county judge whose salary is paid in whole or in part by such county, increase the salary of such county judge in such an amount as the governing body determines. . . .'

Sec. 59.15(1), Stats., provides that the county board, prior to the earliest time for filing nomination papers, may establish the total compensation for the ensuing term. That statute further provides:

'The compensation established shall not be increased nor diminished during the officer's term and shall remain for ensuing terms unless changed by the board.'

Sec. 256.02(4), Stats., imposes a further limitation on the county board, for it is prohibited 'from reducing the salary or additional salary of a county or circuit judge for the term for which elected.'

It is apparent from the statutes that the legislature has granted the authority to the county board to increase the salaries of county judges during a term but has expressly prohibited it from reducing the salaries during the term.

It is equally clear from the statutes that, prior to the first date on which nomination, papers may be circulated, a county board may set the total compensation paid for the term to commence when the judge newly elected takes office. That is not what the county board of Wood county did in this case. It sought to terminate or diminish county supplements on the basis of a contingency not recognized by the legislature.

While the delegation of power to the county board permits an increase in salary at any time at the pleasure of the county board, the exercise of its power to decrease...