State v. Porter
| Decision Date | 08 March 1920 |
| Docket Number | 4540. |
| Parties | STATE EX REL. JACKSON v. PORTER, STATE AUDITOR. |
| Court | Montana Supreme Court |
Proceeding in mandamus by the State of Montana, on the relation of Joseph R. Jackson, to compel George Porter, State Auditor of the State of Montana, to allow a claim for salary presented. Peremptory writ ordered to issue.
N. A Rotering, of Butte, Lester H. Loble, of Helena, and William Meyer, of Butte, for appellant.
S. C Ford, Atty. Gen., and Frank Woody, Asst. Atty. Gen., for respondent.
At the general election in November, 1916, John V. Dwyer was elected a district judge of the Second judicial district of this state. He qualified and entered upon the discharge of his duties and continued therein until the 6th day of October 1919, when he resigned. On October 9th the relator herein was appointed to fill the vacancy and duly qualified. In November, 1916, when Judge Dwyer was elected, and in January, 1917, when he entered upon the discharge of his duties, the salary of a district judge was $4,000 per year. In March, 1919, section 292, Revised Codes, was amended and the salary of a district judge increased from $4,000 to $4,800 per year. Laws 1919, p. 337. The relator having presented his claim for salary under the amended statute, and the state auditor having refused to allow it to the extent of $120, this proceeding was instituted.
The state Constitution provides: Section 31, art. 5: "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 29, art. 8: "The justices of the Supreme Court and the judges of the district courts shall each be paid quarterly by the state, a salary, which shall not be increased or diminished during the terms for which they shall have been respectively elected."
Is the relator entitled to the increased salary provided by the act of March 7, 1919, or is he limited to the amount of salary provided by law at the time Judge Dwyer was elected and entered upon the discharge of his duties? A like question has been before the courts of several of the states, but the decisions are in hopeless conflict. In practically every case to which our attention has been directed, the decision is made to depend upon the peculiar phraseology of the constitutional provision under review, without reference to its history or purpose. If we were to pursue the same course, we would be confronted with one rule declared for executive officers and an altogether different one for members of the judiciary. If section 4, art. 7, above, be construed literally, then it is within the power of the Legislature to reduce the salary of the Governor, secretary of state, auditor, treasurer, Attorney General or superintendent of public instruction, after he has been elected and has assumed the duties of his office, and compel him to accept the reduced compensation (even though it be but nominal) during the remainder of his term, or resign, and if he resigned his successor would occupy no more advantageous position. In other words, under such a construction, the executive officers would be absolutely at the mercy of the Legislature, but such a construction would be as ridiculous as it would be destructive of the very foundation of our form of government.
The government of the United States, and the government of every one of our states, has for its foundation principle the axiom of democracy that the powers of government in a republic can be exercised with security to the people only when apportioned among the three co-ordinate branches, which shall be, as nearly as may be, independent of each other. The disregard of this principle by monarchial governments of Europe had led to such excesses and abuses that, when the framers of our federal Constitution came to prepare the fundamental law for the guidance of this nation, they profited by experience and avoided those defects in other schemes of government, and our state Constitutions have but followed in their wake. The discussion, in the Federalist, of the constitutional limitations upon the power of the Congress over official salaries, and the further consideration of the subject by Chancellor Kent, disclose the contemporaneous judgment of the times. 1 Kent's Com. p. 293; The Federalist, No. 79; 1 Scott's Federalist and other Constitutional Papers, p. 431. If the lawmaking power had the power to interfere ad libitum with the compensation of public officers, it could coerce action favorable to its own views by the promise of increased salary or the threat of violent reduction. Hamilton said in the Federalist: "A power over a man's subsistence amounts to a...
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