104 Colo. 206 | Colo. | 1939
Lead Opinion
delivered the opinion of the court.
An action in mandamus by the people on relation of Madden, judge of the juvenile court of the City and County of Denver, to require officials of Denver who perform duties ordinarily discharged by boards of county commissioners in other counties, to pay him additional salary. The writ was granted.
At the time of relator’s election, 1936, the statute provided that the judge of the juvenile court of Denver, “shall receive an annual salary of not less than that received by the district judge or judges of such county [S. L. ’23, page 211, section 3, ’35 C. S. A., chapter 46, section 205],” payable out of the county treasury in equal monthly installments^ Originally (S. L. ’07, chapter 149, section 7), the salary of the judge of the juvenile court was fixed at a definite sum per year, $4,000, incidentally the same as the salary of district judges, but having no relation thereto, as in the act of 1923, where no sum was mentioned. Under both acts, 1907 and 1923, the judge of the juvenile court was paid at the rate of $4,000 per annum, in equal monthly installments, and, although the act of 1923 authorized payment of a greater sum, but not less, than that received by district judges, under neither act did the City and County of Denver pay the judge of its juvenile court other than at the rate of $4,000 per annum; nor until as of June 7, 1937, at least so far as appears, had any occupant of that position claimed to have legal right to enforce payment of a
If it may be said that relator’s salary was fixed in the sense of sum or amount at the time of his election, then on authority of Carlile v. Henderson, 17 Colo. 532, 31 Pac. 117, and Henderson v. County of Boulder, 51 Colo. 364, 117 Pac. 997, called to our attention by counsel for respondents, the contention that there was error below would be sound; and had the act of 1907 remained unchanged, the essential fixity of salary would be manifest. But in 1923, as we have seen, the legislature amended the 1907 act in the matter of the salary of the judge of the juvenile court by tying it, as to amount, to the salary of district judges. The language is, that the judge of the juvenile court “shall receive an annual salary of not less than that received by the district judge or judges ’ ’ of his county. Clearly, as we conceive, the legislature intended that the salary of the judge of the juvenile court (unless, indeed, county authorities should voluntarily pay a larger salary) shall at all times correspond with, and be not less than, that which the state pays its district judges; and only in that sense did the act of 1923 fix the salary of the judge of the juvenile court. Until the 1923 act, the act of 1907 made full revelation as to
We conclude that writ of mandate properly issued. Let the judgment be affirmed.
Mb. Justice Bakke and Mb. Justice Knous concur.
Mb. Justice Young concurs specially.
Mb. Justice Bock and Mb. Justice Bubke dissent.
Mb. Justice Fbancis E. Bouck does not participate.
Concurrence Opinion
specially concurring.
I concur in the opinion of the court — which recites the facts and issues — affirming the judgment in this case. The suit involves a construction of section 30, article Y of the Colorado Constitution, which, so far as pertinent to the matter before us, provides: “No law shall extend
The question presented is one of moment and I am-impelled on this account, to set forth in a .concurring opinion what appear to .me to be additional reasons for the conclusion announced in the principal opinion. If what I write does not in fact constitute additional reasons to those contained or suggested therein but amounts only to a repetition of them in greater detail, it at least will disclose the processes, which to me seem sound, by which I personally have arrived at the announced conclusion.
The evident purpose of the restriction on the power of the legislature contained in section 30, article V, supra, is to prevent public officials, the agents of the people, after their election or appointment, in the manner provided by law, whether to serve in the executive, legislative or judicial department of government, from being subjected to the dictation or control of the legislature by having their compensation for services increased or decreased or abolished altogether as their services please or displease that body. In effect the compensation or salary of a public officer as fixed by legislative enactment constitutes the consideration pássing from the1 state to him as its agent under what is, if not a contract, at least analogous to one entered into between him and the state concerning the services which- he is to- render.
If the amount he is to receive is definite and certain and fixed in dollars and cents, the officer is entitled to receive the specific amount so provided, no more and no less, regardless of any legislative change in the amount made after his election or appointment. If the compensation he is to receive depends on a contingency, as for example, upon the amount of fees he shall receive when fees are fixed and the officer is allowed to retain them, then the compensation, as to the manner of its determination, is fixed, though as to the amount actually to be
Was the contingency of a change being made in the salaries of the district judges a reasonable one for the legislature to incorporate as a factor to be considered
That the salary “fixed by legislative enactment” in 1923, cannot be changed is admitted. The question here involved is what was the salary or compensation for official services that the legislature fixed? Was it $4,000, no more, no less, throughout the term? Such was the effect of the law as it stood prior to the 1923 amendment. Did the 1923 amendment, passed long before petitioner was elected to office, mean nothing more than that the commissioners might raise the salary above $4,000? In Young v. Commissioners, 102 Colo. 342, 79 P. (2d) 654,
Dissenting Opinion
dissenting.
I dissent. I think the court’s opinion sanctions not only amendment of the Constitution by indirection and implication, but amendment by the legislature. My reason for that conclusion, to which I think no answer has been made, may be thus briefly stated: There is not a word in the Constitution about a juvenile judge or his salary. Hence if he has any salary it must be provided solely by statute. During every minute that court has been in existence the Constitution has forbidden the application of changes in salaries so fixed to persons then in office. This judge was in office when the statute was passed, hence he can not take the increase during that term. Mr. Justice Bock concurs herein.