Wilson v. Marsh

• Citation: 162 Neb. 237,75 N.W.2d 723
• Decision Date: 17 March 1956
• Docket Number: No. 33924,33924
• Parties: John J. WILSON, Paul H. Bek et al. Plaintiffs, v. Frank MARSH, Secretary of State, Defendant, Stanley Bartos, Lyle E. Jackson, Arthur C. Thomsen, James M. Patton, Isaac Johnson Nisley, Interveners.
• Court: Nebraska Supreme Court

Page 723

75 N.W.2d 723

162 Neb. 237

John J. WILSON, Paul H. Bek et al. Plaintiffs, v. Frank MARSH, Secretary of State, Defendant Stanley Bartos, Lyle E. Jackson, Arthur C. Thomsen, James M. Patton, Isaac Johnson Nisley, Interveners.

No. 33924.

Supreme Court of Nebraska.

March 17, 1956.

Syllabus by the Court.

1. A general demurrer admits the facts properly alleged in the pleading to which it is directed and the reasonable inferences deducible from the facts.

2. The Supreme Court of Nebraska has original jurisdiction of an action relating to the revenue of the state.

3. The word 'revenue' as used in Article V, section 2, of the Constitution of Nebraska is broad and general and includes all public money which the state collects or receives from whatever source and in whatever manner.

4. The compensation of a district judge is fixed by statute. It is defined as an annual salary and it is required to be paid to him in equal monthly installments during the year in which his service is rendered.

5. Any arbitrary act of the state by which any part of the salary of a district judge is withheld from him diminishes his salary during his term of office by the amount thereof retained by the state and it is a violation of Article III, section 19, of the Constitution of Nebraska.

6. The primary purpose of the constitutional prohibition against diminution of the salary of a public officer during his term of office is not to benefit the official but the public. It may not be construed as a private grant. It is a limitation imposed in the public interest. All which by their necessary operation and effect withhold or take from the public officer a part of that which has been promised by law for his services is within the inhibition of the Constitution.

7. The benefits of a retirement plan are deferred compensation, presently earned, but payable in the future to the beneficiary upon condition that he possesses the qualifications required by the plan and that he complies with the conditions prescribed by it.

8. The benefits of a retirement system are a form of compensation additional to the regular salary of the beneficiary. The increase in compensation has its inception when the grant is made and when the beneficiary begins his services under the plan and commences to earn the additional remuneration.

9. If the Judges Retirement Act of Nebraska is operative during the present term of the district judges it increases their compenstaion during their term of office in violation of Article III, section 19, of the Constitution of Nebraska.

10. The retirement rights acquired by district judges by virtue of the Judges Retirement Act are vested in any event on the happening of the contingency upon which the retirement pay becomes payable and since it is an integral part of the compensation it cannot be withdrawn after it is vested.

11. If a part of an act is unconstitutional and the remainder is so interrelated with the invalid part that it cannot be sustained without doing violence to the legislative intention as a whole the entire act is invalid.

12. A statute without an emergency clause may become law 3 months after the adjournment of the session at which it was adopted and the operation of its provisions may be postponed to a much later time designated by specific date or by the happening of an event certain to occur.

13. It is not the province of this court to annul a legislative act unless it clearly contravenes the Constitution and no other resort remains.

14. If the act of the Legislature is capable of more than one interpretation one of which sustains it as valid and another renders it in conflict with the Constitution the court must adopt the former.

15. A basic rule in the interpretation of a statute is to ascertain the legislative intent and to give effect to it if it is a lawful one.

16. The Legislature when it passes an act is presumed to know the provisions and limitations of the Constitution of the state, the interpretation that this court has given them, and the construction the court has given similar legislation previously enacted.

17. The presumption is that the Legislature in passing an act intended it to be a valid enactment rather than one in conflict with the Constitution of the state.

Robert Van Pelt, Van Pelt, Marti & O'Gara, Lincoln, for plaintiffs.

Flansburg & Flansburg, Lincoln, for defendant.

Flansburg & Flansburg, Lincoln, for intervenors.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The object of this litigation is to secure an adjudication that seven designated judges of the district court of Nebraska, each of whom are or will be more than 70 years of age on January 3, 1957, are ineligible to be candidates for, to be elected to, or to hold the office of judge of the district court for the term beginning on that date and to enjoin the Secretary of State from certifying the names of said persons to any election official as candidates for the office of district judge.

Plaintiffs allege that: They are residents of the State of Nebraska and are electors and taxpayers in the city and county where they are respectively domiciled. Frank Marsh, the defendant, is Secretary of State of Nebraska and has the legal duty of certifying the names of persons for whom nomination papers have been filed in his office for judge of the district court to the proper election officials of the counties of the state before the official ballots are printed for the primary elections in the state. A state-wide primary election will be held therein on May 15, 1956. Nominations for judge of the district court in each of the judicial districts will be made at the primary election and defendant is obligated to certify to the proper election official of the counties of the state at the time and in the manner required by law the names of candidates for the office of judge of the district court. Prior to September 18, 1955, Harry D. Landis, Stanley Bartos, Lyle E. Jackson, Herbert Rhoades, Arthur C. Thomsen, James M. Patton, and Isaac Johnson Nisley, judges of the district court, hereafter referred to as the judges, each filed in the manner provided by law as a candidate for election to the office of judge of the district court.

The Legislature of Nebraska at its 1955 regular session enacted Legislative Bill No. 38, known as the Judges Retirement Act, which provides for the retirement of district judges of the state at the age of 70 years and for retirement annuity for each retired judge of the district court to be paid in part from revenue to be provided by taxation and thereby the legislation affects revenue of the state. The Judges Retirement Act became effective on September 18, 1955. Each of the seven persons above named who has filed as a candidate for the office of judge of the district court is ineligible by virtue of the provisions of the retirement act to serve in the office for which he has filed because he is now a judge of the district court and on the date of the commencement of the term, Janury 3, 1957, each of said persons will be over the age of 70 years and will be subject to retirement with the financial benefits provided by the act. That the Secretary of State will, unless prevented by action of the court, certify to the proper election officials to be placed on the official primary ballots the names of the seven persons who have filed as candidates for the office of judge of the district court in their respective judicial districts.

Plaintiffs seek to have the seven persons who are incumbent judges of the district court adjudged to be ineligible candidates for the office and to have the defendant enjoined from certifying their names as candidates for the office to be voted on at the next primary election.

The answer of the defendant admits that plaintiffs are residents of Nebraska and are electors and taxpayers in the city and county named for each of them in the petition; that Frank Marsh is Secretary of State of Nebraska; that there will be a general primary election held in Nebraska on May 15, 1956, at which candidates for the office of district judge in each judicial district in the state will be nominated by the electors; and that it is the duty of the Secretary of State to certify at the time and in the manner provided by law to the county clerk or the election commissioner, as the case may be, in each county in which any electors may vote for such office the list of names of each person for whom nomination papers have been filed for the office of district judge in each judicial district.

The answer of defendant also asserts that: Harry D. Landis, Stanley Bartos, Lyle E. Jackson, Herbert Rhoades, Arthur C. Thomsen, James M. Patton, and Isaac Johnson Nisley were elected to the office of district judge at the general election in November 1952, each for a term of 4 years commencing on January 8, 1953, and continuing to January 3, 1957. They qualified, became, and are now district judges serving said term. Each was born on or about the date stated in the petition and each has performed all acts required by statute to be done by him to become a candidate in his respective district for nomination for the office of district judge at the general primary election to be held May 15, 1956.

At the time the district judges named above were elected to office the salary of the judges had been fixed by the Legislature at $7,400 per annum payable in equal monthly installments. They have each served since the commencement of their term as aforesaid, each in his respective district, each has received and accepted the salary aforesaid, and each is entitled to be paid $7,400 per annum, payable monthly, during the term of office, without change, increase, impairment, or reduction by the Legislature. The Judges Retirement Act of Nebraska became effective September 18, 1955, and each of said judges had more than 15 months...