State ex rel. Martin v. Kalb

• Decision Date: 21 September 1880
• Citation: 6 N.W. 557,50 Wis. 178
• Parties: THE STATE ex rel. MARTIN v. KALB, County Treasurer, and another
• Court: Wisconsin Supreme Court

6 N.W. 557

50 Wis. 178

THE STATE ex rel. MARTIN v. KALB, County Treasurer, and another

Supreme Court of Wisconsin

September 21, 1880

Argued September 2, 1880

APPEAL from the Circuit Court for Brown County.

The case is thus stated by Mr. Justice TAYLOR:

"By chapter 9, Laws of 1875, a court of limited civil and criminal jurisdiction was created in the county of Brown designated 'the second county court for Brown county.' The act provided for the election of a judge of sad court, who should hold his office for the term of six years from the first day of January, 1876. It also provided that whenever a vacancy should occur in the office of the county judge then in office as judge of probate, the business pending in such county court should be transferred to the court created by said act, and thereafter such second county court should be known as the county court of said county of Brown, and have jurisdiction also of all matters of probate in as ample a manner as the other county judges or county courts of the state have in such matters. The act fixed the salary of the judge of said court at $ 3,000 per annum, and further provided that when the court should become the county court of said county, with probate jurisdiction, the salary should thereafter be the sum of $ 3,500 per annum.

"In 1877, the then judge of the county court of said county died and under the provisions of said act the judge of 'the second county court for Brown county' assumed and performed the duties of the county judge in probate matters as well as the civil and criminal jurisdiction conferred by said act, and thereafter received the salary of $ 3,500. By the Revised Statutes of 1878, the act creating said court was repealed; but the jurisdiction conferred upon the judge of said court was conferred upon the county court of Brown county to the same extent as by the law of 1875 (see section 2465, R. S. 1878), and the salary of the judge of said county court was fixed at $ 3,500, which was to be in full for all the services of such judge in any capacity, except as court commissioner. See section 2482, R. S. 1878. In 1879, the legislature, by chapter 31 of that session, repealed so much of the Revised Statutes of 1878 as conferred civil and criminal jurisdiction on the county court of Brown county and reduced the salary of the judge of said county court to $ 1,500 per annum.

"Morgan L. Martin, the relator in this action, was elected judge of the second county court for Brown county in April, 1875, under the provisions of chapter 9, Laws of 1875, and entered upon the duties of his office as judge of said second county court; and after the death of the then county judge he entered upon the duties of county judge of said county as judge of probate, and is now in the exercise of the duties of the office of county judge of said county. The object of this action is to compel the payment to the relator of the salary of $ 3,500, as fixed by the law of 1877 and by section 2465, R. S. 1878. The county has paid the salary of said relator at the rate of $ 1,500 per annum since the 25th day of February, 1879. when the repealing act of 1879 took effect, which reduced the salary of said judge to $ 1,500."

Plaintiff appealed from an order sustaining a demurrer to the relation.

Judgment affirmed.

The cause was submitted for the appellant on briefs of Vroman & Sale as attorneys, and Norris & Ellis of counsel. They contended that every county judge with probate jurisdiction is a constitutional public officer, whose salary cannot be increased or diminished during his term of office. It has always been not only the policy but one of the declared purposes and objects of the law, to maintain an independent judiciary by guarding the judges' salaries against diminution during their continuance in office. Provisions for securing this end are found in the constitutions of every state in the union. See Commonwealth v. Gamble, 62 Pa. St., 345. In this state the prohibition of legislative interference extends to the compensation of all public officers. Const., art. IV, sec. 26. The language of this section is used in a general sense, and was intended to refer to all such offices as are for the benefit of the general public. In this sense, county judges are public officers. Their courts are courts of record, with jurisdiction coextensive with the state. Their services are as much for the benefit of the general public as are those of the judges of the supreme or circuit courts. The three courts are part of a single system constituting the judicial department of the state. And the salary of county judges is paid out of the public revenues raised by taxation in the ordinary way. This case is not ruled by Supervisors v. Hackett, 21 Wis. 613. The real point decided in that case was, that sec. 26, art. IV of the constitution, "does not and was not intended to apply to the remuneration of that large class of officers, such as sheriffs, constables, clerks of courts and others, who receive specific fees for specific services as they are from time to time required to render them." This principle is certainly not decisive of the question whether a county judge whose salary is fixed by law, is or is not protected in his right to the full salary by the constitutional provision referred to. The decision in Hall v. State, 39 Wis. 79, related only to offices created by the legislature, and not to the constitutional office here in question. Under the provisions of the act of 1875, the relator, when the vacancy occurred in 1877, became the county judge of Brown county, with probate powers and jurisdiction. The revision of 1878, while repealing the act of 1875, again defined the jurisdiction of such court, and fixed the salary of the judge thereof. Secs. 2465, 2482. The legislature had thereafter no more power to alter the salary of the relator, during the term for which he was elected, than it had to abolish the constitutional office which he held. It might relieve the judge of a part of his duties, or it might add to such duties; but his salary was protected by the constitutional guaranty. The relator, having performed all the duties of his office up to this time, has a vested right to the salary fixed by law, of which no act of the legislature can deprive him. State ex rel. Register v. Auditor, 33 Mo., 287; 5 Watts & S., 403; 6 Bush, 1; 9 id., 7.

For the respondent there was a brief by J. C. & A. C. Neville, and oral argument by J. C. Neville. They contended, inter alia, that the legislature had power to reduce the salary of the judge, fixed by the act of 1875. The court as organized under that act was wholly the creature of legislative power. "When an office is created by statute, it is wholly within the control of the legislature. The term, the mode of appointment and the compensation may be altered at pleasure, and the latter may be even taken away without abolishing the office." People v. Haskell, 5 Cal., 357; People v. Banvard, 27 id., 470; In re Bulger, 45 id., 553; State ex rel. Voight v. Hoeflinger, 31 Wis. 257; Hall v. State, 39 id., 79; Co. Com. v. Jones, 18 Minn., 199; Taft v. Adams, 3 Gray, 126; Cooley on Con. Lim., 276 and note 2; Butler v. Comm., 10 How. (U. S.), 402; Conner v. New York, 2 Sandf., 355; S. C., 5 N. Y., 285; People v. Warner, 7 Hill, 81; 2 Denio, 272; State and De Guenther v. Douglas, 26 Wis. 428. The emoluments or salary of a public officer are not property, and may be increased or diminished by law at all times, except when the constitution has forbidden it, or provided otherwise. Andrews v. U.S. 2 Story, 202; Comm. v. Burrell, 7 Barr, 34; People v. Devlin, 33 N. Y., 269; Conner v. Mayor, 1 Seld., 285; State ex rel. Ryan v. Boyd, 21 Wis. 208. The creation of the office and the election of the relator thereto did not create a contract whose obligation the legislature could not impair. It was not upon any condition or consideration; there was no obligation upon the relator to accept the office; and he might resign it at any time without incurring any liability whatever. Dartmouth College v. Woodward, 4 Wheat., 539; Hall v. State, 39 Wis. 79; State v. Douglas, 26 id., 431; Chapin v. Crusen, 31 id., 209; Prop. of Charles River Bridge Co. v. Warren Bridge, 11 Pet., 420. The salary of the relator not being payable from the treasury of the state, he was not a public officer within the meaning of sec. 26, art. IV of the constitution. Supervisors v. Hackett, 21 Wis. 615.

OPINION

DAVID TAYLOR, J.

It is insisted by the learned counsel for the appellant, that the legislature has no power to reduce the salary of the relator during his term of office, and that he is entitled to receive the salary fixed by the legislature at the time of his election, and when he entered upon the duties of his office. This claim is based upon the last clause of section 26, art. IV of the constitution, which reads as follows: "Nor shall the compensation of any public officer be increased or diminished during his term of office."

It will be seen, by an examination of the constitution, that neither the term of office nor the compensation to be paid to county judges, or judges of inferior courts, are fixed by the constitution. It is not seriously contended that the legislature would not have the power to change both the term of office and the compensation of the county judges, were it not for the provision above quoted. It is well settled that in the absence of any constitutional prohibitions or affirmative provisions fixing the term of office of any officer, or his compensation, the legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected. The authorities cited by the learned cou...