Wilson v. Shaw, 34290.

Decision Date23 June 1922
Docket NumberNo. 34290.,34290.
Citation188 N.W. 940,194 Iowa 28
PartiesWILSON v. SHAW, STATE AUDITOR.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County, J. D. Wallingford, Judge.

Action in mandamus to require the defendant, as auditor of state, to issue a salary warrant alleged by plaintiff to be due him as a district judge, on the basis of $4,000 per annum. The opinion states the facts. Petition was dismissed by the trial court, and plaintiff appeals. Affirmed.

Preston, Weaver, and Evans, JJ., dissenting.Ladd, Warren & Ladd and Parrish, Cohen & Guthrie, all of Des Moines, for appellant.

Clarke & Cosson, of Des Moines, for appellee.

DE GRAFF, J.

This is an action in mandamus. The defendant Frank S. Shaw at the time of the commencement of the suit was the duly elected and qualified auditor of state of the state of Iowa, and among other things is charged by law to issue warrants of the state of Iowa upon the treasurer of said state for sums due as salaries to the several district judges of the state. Plaintiff alleges:

“That on or about the 19th day of December, 1917, he was duly appointed judge of the district court for the Ninth judicial district of Iowa by the Hon. W. L. Harding, Governor of the state of Iowa, to fill the vacancy caused by the death of Judge C. A. Dudley, * * * who had been regularly elected as judge of said judicial district for the term of four years beginning January 1, 1915, and ending December 31, 1918.”

Plaintiff was duly commissioned as district judge, and took the required oath of office. Following the appointment plaintiff was duly elected at the next general election (November 5, 1918) as judge of the said district court for the remainder of the unexpired term for which he was appointed.

On the 12th day of April, 1917, the Thirty-Seventh General Assembly of the state of Iowa enacted chapter 235, amending section 253 of the Supplement of Code 1913, relating to the compensation of district judges, by striking therefrom the words “thirty-five hundred” and inserting in lieu thereof the words “four thousand.” This act was duly approved by the Governor of the state, and became effective by constitutional provision July 4, 1917.

Plaintiff further alleges that under and by virtue of this legislative enactment he, as judge of the district court of Iowa, became entitled to compensation at the rate of $4,000 per year, and that the defendant auditor of state is legally obligated to issue and deliver to him as said judge the proper warrant drawn on the treasurer of the state for the increased salary due plaintiff from and after the 19th day of December, 1917, on which date plaintiff assumed the duties of office as district judge.

The record further discloses that plaintiff holds by assignment a similar claim of Joseph E. Meyer, who was duly appointed a judge of the district court for the Ninth judicial district of Iowa by the Governor on or about January 19, 1918, to fill a vacancy caused by the resignation of Judge Chas. Hutchinson, who had been appointed within the same term by the Governor of the state to fill a vacancy caused by the resignation of Judge W. H. McHenry. It appears from the stipulation of facts filed by the parties hereto that W. H. McHenry was a duly elected judge of the district court as aforesaid for the term of four years beginning January 1, 1915, and ending December 31, 1918. Following the appointment of Judge Meyer he was duly elected at the next general election for the remainder of the unexpired term.

Defendant for answer admits that the defendant auditor has refused to issue the warrants to plaintiff as said judge for said salary for the periods of time set forth in plaintiff's petition at any other rate or in any other or greater sum than at the rate of $3,500 per annum, and further alleges that, at the time of the succession of plaintiff and his assignor, Joseph E. Meyer, that the term of office of their said predecessors had not expired, and that plaintiff and his assignor “continued to hold over in office upon unexpired terms, neither incumbent entering upon a new term, and hence not entitled to the increase of salary provided for by chapter 235 of the acts of the Thirty-Seventh General Assembly because of the constitutional provision forbidding the increase of the compensation of a judge ‘during the term for which he shall have been elected.’

It must be conceded that the appellant, George A. Wilson, was filling a vacancy in a judicial office during the time in question. Chas. A. Dudley was elected district judge at the general election in November, 1914, and was elected for the full constitutional term of four years. By virtue of his oath of office he entered upon the discharge of his duties January 1, 1915, and his certificate of election was for the constitutional term of four years from said date. Judge Dudley died October 18, 1917, and his death ipso facto created a vacancy in office. On July 4, 1917, the new salary act became effective. On December 19, 1917, the appellant was appointed to fill the vacancy caused by Judge Dudley's death. He was appointed by the Governor of this state until the next general election, and his certificate of appointment so read. He was then elected to fill out the remainder of the unexpired term of Judge Dudley, which ended December 31, 1918.

The Constitution of Iowa provides that a district judge “shall be elected by the qualified electors of the district in which he resides” and that he “shall hold his office for the term of four years, and until his successor shall have been elected and qualified.” Const. art. 5, § 5.

[1] The Constitution of this state further provides that “the term of office of each judge shall commence on the first day of January next after his election” (article 5, § 11), and that he shall hold it “for the term of four years” (article 5, § 5). These are mandatory provisions, and the Constitution fixes both the initial and the terminal points of the office so created. The office of district judge is a constitutional office. The Legislature cannot change it, nor can a court by judicial interpretation give it a meaning other than prescribed by the fundamental law.

[2] There is but one term constitutional in character, and that term is defined by the Constitution to be four years from a specified date. The Constitution intends and contemplates but one term, regardless of the tenures of the various incumbents who might serve in the office during the prescribed term. A district judge has no successor within the term for which he is duly elected. His only successor within the constitutional meaning of the word “term” is the next incumbent chosen at the election by the people upon the termination of his constitutional term of four years for which he was elected. He may be his own successor.

The state Constitution does provide for the temporary filling of a vacancy by appointment or by election, but this does not constitute or create a new term in a legal or constitutional sense. A person so appointed or elected is a mere holder of a tenure within the term. The constitutional provisions have no relation to the particular person or persons who may perform the functions of a district judge within the term defined and prescribed by the Constitution. This is evident from the language of the Constitution which provides, in case of “elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term,” and those appointed to fill vacancies “shall hold until the next general election, and until their successors are elected and qualified.” Const. art. 11, § 6. Therefore whoever is appointed or elected is appointed or elected for an unexpired portion of a prescribed term. The term prescribed is a unit of time. A new term is not created. The appointee simply steps into the shoes, so to speak, of him who was elected for the constitutional term of four years, and is entitled to perform the duties and receive the emoluments of the office until the end of that term, or until a successor shall have been elected. The only term which is recognized by the Constitution is the term of four years. In popular language we speak of a “long term” and a “short term,” but these words are not found in the Constitution, and, although perhaps happily chosen to convey an idea, they have no constitutional meaning or definition.

The constitutional term of a district judge is a distinct thing or entity. An unexpired term can be predicated only on a pre-existent term of which it is a part. The term lives on even though the incumbent resigns, is impeached, or dies. Personality has nothing to do with the question, nor is a term within the meaning of the Constitution “the period of a judge's service.” It is axiomatic that the whole is equal to the sum of its parts, and that the part is never equal to or greater than the whole. This is a postulate of logic as well as of mathematics.

The Constitution of this state originally fixed the compensation or salary of a district judge, and it is specifically provided: “Which compensation shall not be increased or diminished during the term for which they shall have been elected.” Article 5, § 9. As indicated heretofore, a judge of the district court is elected for the term of four years, and until “his successor shall have been elected and qualified.” This contemplates that a successor after the termination of the four years may not have been elected, or, if elected, failed to qualify, and in such event the judge in office remains as district judge, but his term has ended, and he is then serving a part or portion of the subsequent term, and it is possible that he would serve an additional term of four years by reason of a failure in having a successor. In this event, however, he would have served two terms of four years each.

The case of Schaffner v. Shaw, 191 Iowa, 1047, 180 N. W. 853, does not rule this...

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