410 A.2d 1216 | Pa. | 1980
Lead Opinion
OPINION OF THE COURT
This is an appeal from an order of the Commonwealth Court denying appellant’s motion for summary judgment and entering judgment for appellees on appellant’s petition for review in the nature of mandamus.
On January 4, 1971, this court ordered a recertification of the population of all magisterial districts using figures derived from the 1970 United States census. The recertification figures for Montgomery County were approved on January 31, 1975, and became effective the first Monday of January, 1976, coinciding with the new terms of all district justices, including appellant, elected in 1975.
Appellant’s district, however, was inadvertently omitted from this recertification.
According to the United States census taken in 1970, appellant’s district had experienced a decline in population. At the commencement of appellant’s second term the population of his district was 12,723. Notwithstanding the population decline in his district, appellant, for the first six months of his second term, continued receiving a salary based upon the older, higher population figure.
The error in the recertification was discovered and a corrected recertification which included the corrected population figure for appellant’s district, was issued on July 1, 1976. Later, the fact that an incorrect salary had been paid to appellant was also discovered, and, on December 6, 1976, the Court Administrator, one of the appellees herein, informed appellant that he would, in the future, be paid the lower salary which recertification demanded, and directed that appellant undertake to return the overpayments he had received from the beginning of his second term.
Appellant filed a petition for review in the nature of mandamus in the Commonwealth Court, claiming that the actions of the Court Administrator violated Article V, § 16 and Article III, § 27 of the Pennsylvania Constitution. In denying appellant’s motion for summary judgment, and entering judgment for appellees, the Commonwealth Court held that appellees had violated neither constitutional provision. The court also held appellant was liable only for those overpayments made after July 1,1976, the date on which the corrected recertification was issued. Appellant appeals the finding of constitutionality.
Appellant relies upon Article V, § 16 of the Pennsylvania Constitution for support. That constitutional provision mandates:
“Justices, judges, and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”
Appellant asserts the action of appellees amounts to a diminution of compensation during his term of office. We disagree.
But the instant case presents no such diminution of salary. The salaries of all justices of the peace were modified at the commencement of their January, 1975 terms. It was only by virtue of administrative oversight or clerical error that appellant’s salary was not modified at that time and that he continued to receive a salary not authorized by law, that is, higher than that to which he was entitled. The constitutional provision here at issue is intended to preserve the independence of the judiciary. Flack v. Barbieri, 32 Pa.Cmwlth. 170, 378 A.2d 500 (1977). We do not believe that purpose is impeded, nor appellees’ statutory duty breached, by permitting appellees to rectify an error and pay appellant that salary to which he is entitled by law.
The Order of the Commonwealth Court is affirmed.
Concurrence Opinion
concurring.
The instant decision relates to a fundamental principle of long standing in the framework of the governmental structure of this Commonwealth. Today’s application of, or rather refusal to apply, the constitutional prohibition against the diminution of salary of a public elected official during
The appellant, Leonard P. Flack, has served as a district justice of the peace in the City of Norristown since 1970. His magisterial district has been, and is designated as No. 38-2-20. For his first term in office
The prohibition against the diminution of the salary of a public official during the term of office appears in two provisions of the constitution. Article 3, § 27 provides: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” This limitation of legislative authority has retained the identical language as it first appeared in Article III, § 13 of the 1874 Constitution. This prohibition against the diminution of salary during the term of office also appears in the new Judiciary Article of 1968, Art. 5, § 16. Article 5, § 16 provides in pertinent part: “Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”
Since we are here faced with a question of the proper compensation for a judicial officer as defined by Article 5, § 1 the controlling provision in this dispute is Article 5, § 16.
We hold the above section of the Constitution to be an absolute mandate upon the Legislature to provide “adequate compensation” for the judges. It is within the power and the duty of the Legislature, and of the Legisla*54 ture alone, to determine, in the first instance, what is adequate compensation, and after this determination has been reached, then it is the right of the judges to receive what is fixed. It cannot, with any show of practical reasoning, be argued that this word “fixed” means that, unless the Legislature has once fixed salaries under the mandate, their power is exhausted. Such a construction would make a dead thing out of the Constitution, .
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What may be an adequate compensation at the beginning of a long term of years, we know, in the light of common knowledge, is almost bound to become inadequate before the expiration thereof, so that the words used in this constitutional section necessarily imply a power by law to carry out the mandate thereof, to change such compensation, so as to bring it up to adequacy in accordance with the changes of time. Id., 210 Pa. at 396, 59 A. at 971.
The basis for the constitutional scheme excluding judicial officers from the general proscription against an increase of salary during a term of office, offers no support for an inference that the prohibitions against diminutions during the term shall receive different interpretations, with the limited exception expressly provided for in Art. 5, § 16 and not in issue here. See note 4.
In my judgment the results reached and the reasoning employed by this Court in Guldin v. Schuylkill County, 149 Pa. 210, 24 A. 171 (1892) and Lewis v. Lackawanna County, 200 Pa. 590, 50 A. 162 (1901) are completely at odds with the views expressed by today’s majority. At first blush there might be some appeal to an argument that where the amount of compensation is dependent upon a formulae established before the term of office and the formula is not disturbed during the term, but a diminution occurs as a result of the application of that formula the constitutional prohibition is not disturbed. Proceeding with this reasoning and applying it to the facts of the instant case, it could be claimed that the formula here was not changed under the
In Guldin this Court refused to allow a change in the method of compensation during the term of office although the law which provided for the change had been passed fourteen years before the beginning of the term and the fact which triggered the change had occurred before the term in question began. In that case the Court was confronted with a statute which provided that when a county reached a population level in excess of 150,000 residents, public officers were required to be compensated on a salary basis and could not be paid on a fee basis. The Court reasoned as follows:
When the plaintiff was elected to the office of coroner of Schuylkill county the emoluments of that office were certain fees prescribed by law. At that time the salary act of 1876 had no application to him or to his office. To give it such application after part of his term had expired, and thereby take away his fees and substitute therefor a salary less than the aggregate amount of the fees authorized when he accepted the office, is to diminish his emoluments by law after his election, and the result is precisely the same as it would have been if the law had been passed after his election. The prohibition has no relation to the time of the passage of the law, but is directed against any change of salary or emoluments of an officer after his election. 149 Pa. at 215, 24 A. at 172.
This reasoning flatly rejects the view that would place constitutional significance upon the fact that long before the beginning of the term the new method of payment of compensation had been established and the facts determining its applicability announced. The Court specifically stated: “The prohibition has no relation to the time of the passage of the law, but is directed against any change of
This emphasis upon the practical and actual effect of the legislature’s actions on the compensation of the officeholder was applied to judicial salaries in Bailey v. Waters, 308 Pa. 309, 317-18, 162 A. 819, 822 (1932):
We are confronted with the fact that all of the eminent Pennsylvania judges who have considered this question have reached the same conclusion. .
The courts have also held that the Legislature could not indirectly bring about a reduction of judicial salaries. In Com. v. Mann, [5 Watts + Serg. 403 (1843)], one of the questions was the power to tax the judicial salary which would, in effect, amount to a reduction of it, and after carefully considering this question the court, through Mr. Justice Rogers, came to the conclusion that it could not be done. So in Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519, the Supreme Court of the United States came to the same conclusion. See, also, Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067. It may be argued that the judiciary has nothing to fear from any attempted legislative control by a reduction of salaries. The question is not one of probability. It is one of possibility. It is not a question of fear, but one of power with which we are confronted.
The commonwealth contends that this is not a reduction of salary but it is in effect transferring Judge Bailey from one district to another in which the applicable salary is but*57 $9,000. Judge Bailey was elected as president judge of a district in which the salary at the time of the passage of the Act of 1931 was $12,000. Whatever be the legislative legerdemain, the effect on him is to reduce his salary as president judge of the Twentieth judicial district. In this connection we think the cases of Guldin v. Schuylkill Co., 149 Pa. 210, 24 A. 171; Com. v. Comrey, 149 Pa. 216, 24 A. 172; Com. ex rel. Woodring v. Walter, 274 Pa. 553, 118 A. 510, are applicable. (Emphasis added).
The majority seeks to justify its view on the basis that the population change had in fact occurred prior to his acceptance of office and was not recognized because of an “administrative or clerical” error. Yet, in Guldin the population change had also occurred prior to the commencement of the term in question. The only distinction is that in Guldin the fact was not ascertained because the census had not been completed and here the reclassification was belatedly made because of an error, for which appellant was in no way responsible. This distinction is of no moment since this Court has previously ruled that the critical fact for constitutional purposes is not the date when the population in fact changes but rather it is when the change is legally recognized.
The census has no inherent force or application in the law of Pennsylvania. Its relevancy to state matters depends on the constitution and statutes of the state. In adopting it as the test, therefore, the courts proceed upon the general principle that it affords the best evidence attainable of the necessary fact. And upon the same principle, before the fact can become a part of the state law, and be made the basis of action, it must be established by competent evidence. It follows, therefore, that it is not the mere existence of the fact that must govern its application, but its legal and official ascertainment. Lewis v. Lackawanna County, supra, 200 Pa. at 595, 50 A. 162, at 163 (1901)7
An additional wrinkle is present in this appeal because of the passage of the Magisterial District Reform Act, Act of July 15, 1976, P.L. 1014, § 206, 42 P.S. § 2206 (1979-80 Supp.), which became effective July 1, 1976. Under the terms of this provision, the district justice was to receive a basic salary of $9,000 plus $.60 cents for each resident. Thus
As previously noted, Article 3, § 27 differs from Article 5, § 16 in that the former prohibits any change of salary during the term of office, whereas Article 5, § 16 only prohibits a reduction in the compensation received during the term. Thus the language of the cases considering Article 3, § 27, which indicates that a population change where it has the effect of increasing the compensation is nonetheless constitutionally offensive, is inapplicable to judicial salaries governed by Article 5, § 16. The new computation under the Magisterial District Reform Act with the use of the recertified population figure still exceeds the former salary, thus Article 5, § 16 is not offended. Therefore, I must conclude that appellant here was entitled to the use of the earlier population figure until the time the new act became effective. No overpayment could have occurred until after the state began the computation under the new act.
. Appellant’s first term commenced on the first Monday in January of 1970 and terminated in January, 1976.
. The Magisterial Districts Act was codified only in the pocket parts to Title 42 of Purdons Pennsylvania Statutes Annotated at § 1305. Because this Act was repealed in 1976 by the Magisterial District Reform Act, Act of June 15, 1976, P.L. 1014, § 206, 42 P.S. § 2206 (1979-80 pocket part), the current pocket part does not contain the Magisterial Districts Act.
. Previously, a justice of the peace was not considered to be within the former Constitutional Article 5, § 18 because they were not “learned in the law”, but they were covered instead under Article 3, § 27. Freiler v. Schuylkill County, 46 Pa.Super. 58 (1911). With the adoption of the 1968 Amended Judiciary Article, it is clear from the express language that the justice of the peace is to be covered by Article 5, § 16.
. Article 5, § 16 provides for an exception to the prohibition against the diminution of salary during the term of office not found in Article 3, § 27. This exception reflects a recognition that because of the length of judicial terms as opposed to the terms of other public officials, legitimate economic changes may require an adjustment in the salary before the completion of the term. However, absent such unique economic planning that would affect the salary of all officers of the Commonwealth the mandate of Article 5, § 16 with respect to the diminution of salary during the term of office is identical with that found within the provisions of Article 3, § 27. Here there is no assertion that the exception to the Article 5, § 16 prohibition is relevant.
. The Constitutional provision (Art. 5, § 18) at issue in Mathues provided, “The judges of the Supreme Court and the judges of the severed courts of common pleas and all other judges required to be learned in the law, shall, at stated times, receive for their services an adequate compensation, which shall be fixed by law and paid by the state.” This general language first appeared in the Constitution adopted in 1790, and was continued in the Constitutions of 1838 and 1874. The clause in the 1790 Constitution, after providing for adequate compensation to be fixed by law and paid at stated times, specifically prohibited diminutions during the continuance in office.
. “A sense of the manifest justice, on the one hand, of continuing to an officer the compensation prescribed by law at the time of his acceptance of office, and, on the other hand, of holding him to the performance of his official duties for what, in an equitable sense, might be regarded as an agreed consideration, . . . , may well have had an influence in molding this section.” 149 Pa. at 215, 24 A. at 172.
. In Lewis a district attorney was elected to office on November 6, 1900, to serve a term of three years from the first Monday of January
. The majority of this Court and the Commonwealth Court has mistakenly assumed that the sole purpose of Article 5, § 16 was to preserve the independence of the judiciary. Since the prohibition against the diminution of salary during the term of office extends to all public officials, judicial, executive and legislative, it is obvious that while this may have been a consideration in the adoption of Article 5, § 16 it was obviously not the sole purpose for specifically applying this concept to judicial officers along with the officers of the other branches of government. Therefore, the inquiry does not cease once it is established the diminution in question was not intended to threaten the independence of the judiciary.
. Appellant concedes an overpayment for the period between July 1, 1976 to September 13,1976 for which an adjustment should be made. This resulted from the improper use of the new formula under the Magisterial District Reform Act before it became effective.
. I recognize that the practical effect of my differences with the majority in this particular case will only affect the adjustments to be made for the admitted overpayment between July 1 and September 13, 1976. However, because of the basic nature of the disagreement, I believe an explication of my views was required.
