Woods v. Bragaw
| Decision Date | 21 November 1907 |
| Citation | 13 Idaho 607,92 P. 576 |
| Parties | W. W. WOODS, E. C. STEELE, FREMONT WOOD, E. A. WALTERS, ALFRED BUDGE, J. M. STEVENS and E. L. BRYAN, Plaintiffs, v. ROBERT S. BRAGAW, as State Auditor, Defendant |
| Court | Idaho Supreme Court |
CONSTITUTIONAL PROVISIONS-APPLICATION OF LEGISLATIVE ENACTMENT-INCREASING SALARY OF DISTRICT JUDGES.
1. Article 5, section 27 of the constitution declares that the legislature may, by law, diminish or increase the compensation of any or all the following officers, to wit governor, lieutenant-governor, secretary of state, auditor state treasurer, attorney general, superintendent of public instruction, commissioner of immigration and labor, justices of the supreme court, and judges of the district courts, and district attorneys, but no diminution or increase shall affect the compensation of the officer then in office during his term, etc. Held, that the meaning of said section is plain and does not call for technical construction.
2. The act of the legislature approved March 14, 1907, increased the salary of the judges of the district court from $3,000 per annum, fixed by the constitution, to $4,000 per annum, fixed by said act. Held, that said act does not apply to the officer then in office during his term.
(Syllabus by the court.)
ORIGINAL application for writ of mandate. Demurrer to complaint. Demurrer sustained.
Demurrer to the complaint sustained without costs.
Jess B. Hawley, A. A. Fraser, John P. Gray, Miles S. Johnson, Chas. M. Kahn, and Borah, Cavanah & Blake, Attorneys for Plaintiffs.
The contention of the plaintiffs is that until after the judicial salaries have been once fixed and determined by legislative act, the provisions of section 27, article 5, forbidding their increase or diminution during the incumbent's term, have no application whatsoever, and further, that the constitutional provision as to judicial salaries contained in section 17, article 5, is merely intended as temporarily fixing the salary until otherwise fixed by the legislature.
In section 19, article 4, where provision is made for the salaries of the executive offices, it is clear that the constitutional convention sought to place strong restrictions against the raising of salaries of executive officers during the incumbents' terms.
The framers of the constitution intended to and did make a distinction between the power of the legislature to increase the salaries of the executive and judicial officers of the state.
Section 17 of article 5, in stating what the compensation of the judiciary should be, does not use the language of finality or indicate that the salary there stated is to be the fixed salary or anything but a mere temporary allowance. It certainly did not use in this section the language of finality such as it used with regard to the executive department in section 19 of article 4.
The constitution did not expect the judges that took office after its adoption to be forced to abide by a salary stated in the constitution for their long terms of six and four years; otherwise the convention would have used similar language regarding judicial salaries to that used regarding executive salaries.
"Increase and diminish," as stated in section 27, article 5, only applies after the legislature has once fixed the salary, and has no application or reference to the temporary salary stated in the constitution.
"When the legislature by enactments either impliedly or expressly construes a provision of a statute or constitution, in doubtful cases the courts will accept legislative construction and enforce provisions in accordance therewith if the ambiguous language of the provision is such as admits of construction." (State v. Tingey, 24 Utah 225, 67 P. 33, 34; Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216-218.)
It would have been a useless act for the legislature of the ninth session to provide an increase of salary which would only take effect four years after, when it well knew that another session of the legislature would convene in two years.
The wording of the Utah constitution shows the intent of the framers of the constitution to limit the powers of the legislature from the very inception of the government a great deal more than does the wording of our constitution, yet their court has construed a similar provision in accordance with our contention.
"It is evidence that a change of those provisions to which the term 'until otherwise provided by law' is applied was left to the discretion of the legislature, and that they may be changed whenever the legislature chooses to exercise that discretion, except that, after the salary of any officer fixed by the constitution is changed by the legislature, it cannot thereafter again be changed so as to affect the salary of any officer during the term for which he is elected." (State v. Tingey, 24 Utah 225, 67 P. 33.)
J. J. Guheen, Attorney General, and B. S. Crow, for Defendant.
Section 27 of article 5 of the state constitution gives no room for technical principles of construction; the meaning is expressed as clearly as language can make it.
The reason for the inhibition in section 27 of article 5 is apparent. A man who runs for one of the public offices enumerated in the section has the assurance of a certain remuneration during his entire term--a remuneration which a hostile legislature cannot cut down and diminish, and which, on the other hand, a friendly, partisan legislature cannot increase. (Carlile v. Henderson, 17 Colo. 532, 31 P. 118, 119; Mechem on Public Officers, sec. 858.)
The courts have closely followed and severely applied this constitutional provision to legislative acts. (Throop on Public Officers, sec. 465; Weeks v. Texarkana, 50 Ark. 81, 6 S.W. 504; State v. Hudson Co., 44 N.J.L. 388; Larew v. Newman, 81 Cal. 588, 23 P. 227; Milner v. Rubenstein, 85 Cal. 593, 24 P. 935; State v. Kelsey, 44 N.J.L. 1; Garvie v. City of Hartford, 54 Conn. 441, 7 A. 723.)
The Utah case cited by plaintiff was decided under a constitutional provision which differs from ours, and which permits of a technical construction which ours does not. The court in that case held that a "compensation as fixed by law" had the sense of a compensation as fixed by statute, and, since the then salary of the governor was not fixed by statute, but by the constitution, there was no inhibition on the legislature to increase it during his term. But our constitutional provision permits of no such technical refinement.
Other states have been controlled by corrupt legislative bodies not above venting their political spleen by cutting off the entire salary of officials placed in office by the opposite party; or who, on the other hand, would bankrupt the public treasury in rewarding political supporters in office. Evils such as these are those against which the framers of our constitution sought to safeguard the people on the one hand, and the public officials of the state on the other.
STEWART, J. Sullivan, J., concurs. Ailshie, C. J., did not sit at the hearing or participate in this opinion.
The plaintiffs are the judges of the several district courts of this state. The defendant is the state auditor. The proceeding is an original application in this court for a writ of mandate to compel the defendant to draw warrants in plaintiffs' favor, for the quarter ending June 30, 1907, in payment of salary, at the rate of $ 4,000 per annum from and after May 8, 1907. The defendant demurred to the complaint.
The only question presented for decision is: Does the act approved March 14, 1907, raising the salary of district judges from $ 3,000 per annum to $ 4,000 per annum, apply to the judges in office at the time the act became a law, to wit, May 8, 1907? The plaintiffs were elected at the general election held throughout the state on the sixty day of November, 1906, and qualified and entered upon the duties of their respective offices on the first Monday of January, 1907, and were such judges at the time of filing the complaint, the term being four years.
Article 5, section 17 of the constitution provides: "The salary of the judges of the district court until otherwise provided by the legislature, shall be $ 3,000 each per annum." This section contains no provision as to raising or lowering salaries.
Article 5, section 27 of the constitution provides:
The act under consideration was approved March 14, 1907, and provides in section 2: "The salary of judges of the district court shall be four thousand dollars per annum." The plaintiffs contend that until after the salary of the district judges has been fixed by the legislature, the inhibition, contained in article 5, section 27 of the constitution, forbidding the increase or decrease of the salary during an incumbent's term of office has no application. The constitution, article 4, section 19, makes provision for the salary of the executive officers of the state for the term next ensuing after the adoption of the constitution, and in the same section provides: "The legislature may, by law, diminish or increase the compensation of any or all of the officers named in this section, but no such diminution or increase shall affect the salaries of the officers then in office during their term." The inhibition as to raising or decreasing salaries, as appears in this section, relates to executive officers only, while the inhibition found in article 5 section 27, relates to both executive and judicial officers. The framers of the...
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