Taylor v. Martin, 406

• Decision Date: 14 April 1955
• Docket Number: No. 406,406
• Citation: 69 N.W.2d 823,342 Mich. 265
• Parties: Thaddeus B. TAYLOR, Plaintiff, v. John B. MARTIN, Auditor General of the State of Michigan, Defendant. Motion
• Court: Michigan Supreme Court

Page 823

69 N.W.2d 823

342 Mich. 265

Thaddeus B. TAYLOR, Plaintiff, v. John B. MARTIN, Auditor General of the State of Michigan, Defendant.

Motion No. 406.

Supreme Court of Michigan.

April 14, 1955.

L. K. Varnum, Grand Rapids, for plaintiff.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Daniel J. O'Hara, Asst. Atty. Gen., for defendant.

Before the Entire Bench.

BOYLES, Justice.

This is an original proceeding in this Court whereby plaintiff, who is the judge of the superior court of Grand Rapids, seeks a writ of mandamus to compel the auditor general to deliver to him payroll vouchers for the salary fixed for circuit judges by P.A.1954, No. 155.

Petitioner's present term of office is for 6 years, and commenced May 1, 1953. P.A.1954, No. 155, ¹ effective August 13, 1954, reads in part as follows:

'Each circuit judge and each of the judges of the recorder's court shall receive an annual salary of $12,500.00' P.A.1949, No. 275, § 6, ² provides for the salary of judges of the superior court of Grand Rapids as follows:

'The judge of said superior court shall receive from the treasury of the state of Michigan the same annual salary as may be payable to circuit judges, and payable in the same manner as are circuit judges. The judge of said court may receive such additional sum as the city commission of Grand Rapids may provide, to be paid by said city in the same manner as are city officers.'

The defendant auditor general argues that payment to plaintiff may not lawfully be made of the additional sums which he seeks, because prohibited by article 16, § 3, of the Constitution 1908, which reads in part as follows:

'Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment.'

Defendant claims that the plaintiff is not a circuit judge, therefore not within the above exception of circuit judges in article 16, § 3; wherefore the inhibition against an increase in salary must apply to him. Plaintiff admits that he is not a circuit judge, but claims that his salary is fixed by P.A.1949, No. 275, which became effective before his term of office, rather than by P.A.1954, No. 155, which took effect after the commencement of his term.

But the 1949 act makes no provision for an increase of salaries of superior court judges during term. If it should be so construed, it would run counter to the inhibition in article 16, § 3. While said act 155 increased the annual salary of circuit and recorder's court judges to $12,500 from $9,000 fixed by P.A.1949, No. 103, which act it amends, it significantly omits any increase of salary for superior court judges, although they were included in the increase by said P.A.1949, No. 103. In the instant proceeding the plaintiff would, in effect, include, superior court judges in the increase provided for in the 1954 act.

P.A.1949, No. 275, on which the plaintiff relies in part, and P.A.1954, No. 155, on which the plaintiff also relies in part, for the increase, must be read together and so construed. The 1949 act, by connecting the salaries of superior court judges to the salaries of circuit judges, plainly indicates such a legislative intent. The net result of plaintiff's claim for the increase would be to increase his salary during term, which began May 1, 1953. P.A.1954, No. 155, increasing the salary of circuit judges, became effective August 13, 1954, during plaintiff's term of office. Plaintiff not being a circuit judge at that time, does not come within the exception in article 16, § 3, of the Constitution prohibiting an increase in salary for public officers during term, 'except circuit judges.'

In Dunham v. Tilma, 191 Mich. 688, 158 N.W. 216, a judge of the superior court of Grand Rapids sought mandamus to compel the city comptroller of Grand Rapids to audit the judge's claim for an increase in salary under an...