| Wis. | Mar 9, 1909
Lead Opinion
This application presents a very interesting and somewhat grave question. In all, or most, written constitutions, provision is made against changing an officer’s, salary during his term of office.
The temptation, which competency of the legislature to-change salaries of officers during terms of office would hold out for it to do so, for bad as well as for worthy purposes, and for executives to manipulate such a situation to serve either purpose, or to favor one officer above another, or officers to-
The general trend of authority is this way. The constitution or other written law creates the office and fixes the term thereof and gives thereto the incident of a specific salary. The office, the term, and the incident may exist for any period of time without the office being Ailed or without there being-any method provided for filling it. "Upon such method being-provided and the office being filled the incumbent takes it with its fixed term and incident. If he goes out during such term and another steps in the latter does not take a new term but takes a part of the same term prior thereto enjoyed by his predecessor. The term continues during its fixed period with its incident for such period regardless of how many incumbents there may be, each succeeding the other. Where-another incumbent goes in at the commencement of the full term prescribed by law, such full term becomes his term, within the meaning of language in the fundamental law prohibiting any change in an officer’s salary during his term of' office, and in case of his going out during such term and being succeeded by another such other succeeds to the same term as that held by his predecessor, so that, during his incumbency, the full term, so far as not yet run, becomes his term in the constitutional sense.
That has been supposed by courts which have dealt with the matter to be the proper construction to be placed upon a constitutional provision similar to ours, in view of the logic-of the situation, regardless of whether the language of the-constitution prohibits a change of salary of an officer “dur
Those decisions cited by counsel, as well as People ex rel. Bentley v. Le Fevre, 21 Colo. 218" court="Colo." date_filed="1895-04-15" href="https://app.midpage.ai/document/people-ex-rel-bentley-v-le-fevre-6562626?utm_source=webapp" opinion_id="6562626">21 Colo. 218, 229, 40 Pac. 882; Simpson v. Willard, 14 S. C. 191; Jameson v. Hudson, 82 Va. 279" court="Va." date_filed="1886-07-10" href="https://app.midpage.ai/document/jameson-v-hudson-6807664?utm_source=webapp" opinion_id="6807664">82 Va. 279; State ex rel. v. Schmidt, 14 Mo. App. 589, being all the cases of moment on either side, except one hereafter noticed, are to the effect that the term of office fixed by law, in the absence of some clear indication to the contrary, is a unit; that the incident thereto is as'unvariable as the term, and that one who comes in to fill a vacancy does not take a new term but merely takes up the work of the old term with its duties and its incidents. The industry of counsel has resulted in placing before us all the authorities extant, bearing helpfully on the question. None of them go back within many years of the time when the administrative officers of this state, without judicial guidance, took a stand in regard to the matter.
The petitioner cites Barnum v. Gilman, 27 Minn. 466" court="Minn." date_filed="1881-03-29" href="https://app.midpage.ai/document/barnum-v-gilman-7963840?utm_source=webapp" opinion_id="7963840">27 Minn. 466, 8 N. W. 375, as holding Contrary to the foregoing, and that the words “term of office for which he is elected” in the Minnesota constitutional prohibition against a senator or representative holding any office under the authority of the United States or the state, with certain exceptions, “during the term for which he was elected,” mean during the term of his incumbency ; that the term for which he was elected is synonymous with “his term of office,” which means during his incumbency of the office; that during one full term of office there may be several successive incumbents, each having a fraction of a full term, and in that situation have a term of office which as to him is his term of office.
That logic is diametrically opposed to the other cases cited and would go far to sustain 'the petitioner’s petition, if the
In view of the result reached, it is useless to spend further time in the discussion of authorities. So much as has been said seemed to be required to show that the authorities, upon which the learned attorney general and the petitioner rely, have not been overlooked or misunderstood. It seemed to be especially due to the attorney general and the secretary of state, as a vindication from any suspicion of capricious obstruction of the petitioner’s efforts to obtain from the state treasury what he conscientiously believed to be his due.
In view of the trend of authority as we have fairly, it is thought, indicated it to be, they may well have had very serious doubts as to whether the petitioner’s claim was valid, and, having such doubts, they exhibited a most commendable fidelity to their high official duty to guard the public funds by resolving-that doubt in favor of the state and leaving the result to be dealt with by this court. If the result shall be that such doubt, under all the circumstances, in the judgment of this court, should be resolved in favor of the petitioner, it will not take even a jot from their credit in the matter.
Our constitution at sec. 1 [4], art. VII, creates the office of justice of the supreme court and the term of office. It left 4he legislature, as the instrumentality to attach thereto the salary incident, entirely untrammeled, except by sec. 10, art. VII, commanding that each of the incumbents “shall receive a salary, payable quarterly, of not less than one thousand five hundred dollars annually,” and no other compensation whatever. The same section deals with the term of office created by the previous section referred to by providing that an incum-
Turning now to art. IV, devoted to the legislature and its powers, we find that it creates an absolute disability of the lawmaking body to change, in any way, either by increasing or decreasing, any public officer’s compensation “during his term of office.” There is no prohibition in those parts of tire constitution dealing with the different classes of state officials or their terms of office on the subject of increase or decrease of compensation, as in the other states to which we have referred. Por instance, in California the prohibition, as to municipal officers, is in that part of the constitution relating to the offices. The same is true with reference to county officers and likewise with reference to judges of the courts and so with reference to offices commonly denominated state offices: governor, secretary of state, state treasurer, and the like. There is nothing on the subject in the chapter relating to legislative powers. The same is true in Tennessee.
We mention the last foregoing for what it is worth. It is not entirely without significance on the subject of whether the words, “his term of office,” in the clause relating to legislative powers, means term of office created, as indicated in the article on the judiciary, or “during the term for which they are respectively elected,” in sec. 10 of the same article. If the section which relates to the salary contained a prohibition as to increase or decrease, as in other state constitutions, there would be less difficulty in reaching a conclusion. As it is, the question presented is somewhat new. Its solution rests on the limitation of legislative power, disassociated entirely from
Sec. 9 of art. VII, relating to filling vacancies in the office of justice of this court, is'closely associated with the other features of art. VII and doubtless speaks of term of office in the same sense as such features. It provides that in case of vacancy it shall be filled by appointment by the governor, which shall continue until a successor is elected and qualified, and such successor shall hold his office the’ residue of the unexpired term, thus recognizing the unity of the term, part lasting during the incumbency of the person taking the office by election at the start, part during the incumbency of the appointee, and part, “the residue of the unexpired term,” during the incumbency of the second person elected.
It seems quite singular, if the plan of the constitution makers were to apply the idea of unity to the salary, coinciding with unity of term under art. VII, that a prohibition as to change in the salary incident to the office being made during a pending term, was not incorporated in sec. 10, the appropriate place as an original matter and according to constitutions generally then existing and constitutions since framed for other states. The constitution of Michigan was used as one of the models worthy to be followed. The particular feature under discussion was incorporated therein at the point where -one would expect to find it, if the salary for the full term was intended to correspond thereto as to unity. Why was it dropped out by the framers of our constitution, they contenting themselves with placing a limitation upon legislative power, in the article on that subject, to change the “compensation of any public officer during his term of office,” using language, as will be seen, quite appropriate to the idea that the particular time of the particular officer’s incumbency of the office should be regarded, at that point, as “his term of office” instead of the full term dealt with from first to last in art. VII?
If we had to deal with the matter from the standpoint of 1857, or thereabouts, we might not be able to discover, satisfactorily, that a prohibition, such as is found in other constitutions, associated with the creation of the office and of the-term of office and providing for its incident of salary, bore' primarily on the competency .of the officer to take an increased salary, more clearly than on the competency of the-lawmaking power to provide for it; or that, whether the prohibition be so located or as we find it in art. IV of our constitution, it would not be a limitation of legislative power, primarily.
If it were not for the conditions hereafter noted it would be-very difficult to escape from the logic of the decisions elsewhere to which we have referred. Except for the peculiarity mentioned the situations harmonize in opposition to the petition.
From what has been said, it is quite clear that the meaning;
When it is conceded, as it must be, on the most favorable view for respondent, that the situation, involves uncertainty, it admits that practical construction, so far as the same has been given to the matter, is entitled to considerable weight, especially since it has covered a period of over fifty years without interruption, as we shall see. So we will review the situation
By ch. 102, Laws of 1857, the salary of a justice of this court or a circuit judge was increased from $1,500 to $2,500, ¡payable quarterly, in the manner then payable, the same to apply to any justice thereafter elected or appointed, but not to be construed so as to increase the compensation of any circuit judge then in office ¿íduring his term of office.” It will be interesting to note that the only subject mentioned in the title of the act is, salaries of the judges of the circuit courts, and that the declaration against construction so as to enhance the compensation of officers in service during their terms did not apply to justices of the supreme court. That suggests legislative intention, so far as competency existed, to increase the compensatory incidents of such offices as to incumbents coming in after the passage of the act by appointment or election to fill out a pending term under art. VII of the constitution. That is, that the legislature had in mind the idea that the term of office in such article was something different from the term of office of any public officer under sec. 26, art. IV. Without such idea no reason could well be assigned for the legislative purpose indicated.
Under the law aforesaid, till the decision in State ex rel. Crawford v. Hastings, 10 Wis. 525" court="Wis." date_filed="1860-02-28" href="https://app.midpage.ai/document/state-ex-rel-crawford-v-hastings-6597995?utm_source=webapp" opinion_id="6597995">10 Wis. 525, made in the early part of 1860, there was some uncertainty, after the passage of ch. 41, Laws of 1854, seemingly, changing the time for the commencement of the term of office of a justice of this court from June 1st after the election till the first Monday of J anuary after such election, as regards whether such change was effected or not. Justice Cole and Chief Justice DixoN at the outset concluded that such change was effected, while later the chief justice joined with Justice PaiNE in a contrary decision. During the period of uncertainty Chief Justice
Later Justice Paihe was elected to succeed Justice Smith, whose term of office, according to the law as it existed at the time of his election, expired May 31, 1859, while the new election was for a term commencing, as was supposed by some, January 1, 1860, and by others as not so commencing, Justice PaiNE being of the latter view. With that uncertainty existing it was solved by Justice Smith resigning and Justice
By ch. 33, Laws of 1867, the salary incident to the office of justice of this court was again changed from $2,500 to $3,500 and to apply to justices “hereafter elected or appointed.” The act took effect March 26, 1867. Public desire to retain the valuable services of Chief Justice Dixokt, whose term was drawing to a close, doubtless influenced this legislation. The history of the times so tells us. The election was to come, regularly, in April, 1869, leaving quite a period with the salary incident at the low point. It was supposed by the governor, the chief justice, and, evidently, his associates, Justices Cole and Paihe, that in case of his resignation and reappointment to fill out the pending term as an appointee, he would have a new incumbency under sec. 26, art. IV, aforesaid and be within the letter of the salary increase act. Such, as we have seen, had been the prevailing idea for now over ten years. That course was taken for the manifest purpose — which all parties concerned, directly or indirectly, the governor, the attorney general, all the justices of this court as individuals, the state treasurer, and the secretary of state, who necessarily ruled on the question in issuing the warrant which the chief justice received — of affording him the salary increase designed, which was supposed to be necessary in order to retain his services, and which was universally thought he might rightfully receive.
We may well say, in passing, that in the official record as promulgated by the secretary of state, from time to time, in the blue book, both as to all the periods we have mentioned
The action of Chief Justice DixoN challenged public attention, sharply, to the manner the constitutional provisions under discussion had been construed and administered. Some claimed they had been violated. Such is the history of the times. The next spring after the particular occurrence it was necessary to fill the place temporarily occupied by the appointee, by an election. Chief Justice DixoN was a candidate for the vacancy he had created. Hon. Charles Dunn was an opposing candidate, the issue largely, if not in the main, being whether the occurrence aforesaid was proper.
In the situation stated, the position of the chief justice and his associates and all others who had been previously concerned in administering the ambiguous law, was placed before the people of the state in a carefully prepared article, published in the official state paper under date of January 16, 1868. By whose hand it was prepared we have no way of knowing, except as we may judge by the manner the subject was treated. That the article was written with consummate care and the situation stated with the legal precision which would be expected of a trained judicial mind, is quite evident. That it, at least, received the approval of the chief justice and his associates, there can be little or no doubt. Here is so much of the presentation as is particularly appropriate to the full history we are endeavoring •to write, and appropriate as a vindication of the chief justice from any criticism upon his course from the standpoint of common judgment in 1868:
“The provision of the constitution which is claimed to have been violated, is found in art. IV, sec. 26, and is as follows : ‘Nor shall the compensation of any public officer be increased or diminished during his term of office.’ , What was the meaning and intention of this provision ? Did it have reference to*551 the full terra of office only ? This is not claimed by any one. Thus it is conceded that Judge PaiNe, who was appointed in the place of Judge DowNee, who had resigned, is entitled to tire increased salary. This is for the reason that his Term of office’ did not commence until his appointment took effect. It was, therefore, a distinct, independent term of office and not identical with the term of Judge DowNee, who had resigned.
“The term of office which Judge PaiNe holds by appointment will continue until his successor is elected and qualified. And then his successor will enter upon another term of office, which will be his term. And if, before such election, the salary should be again changed, and either increased or diminished, no one will doubt that such successor should be paid according to the new law, whether more or less than the present salary.
“This is because there will be three distinct terms of office,, all occurring within the full term, or period of time for which Judge DowNee was elected. Pirst, his term, which expired when his resignation took effect. Second, the term of Judge PaiNe, which began at his appointment and will end when his, successor is elected and qualified. And third, the term of his successor, who is to be elected next spring.
“Now it being conceded, as it is universally, that these constitute three distinct terms of office, within the meaning of the constitutional provision under consideration, all ground of objection to the action of Judge DixoN fails. Because the constitution did not prohibit an increase or diminution of the salary at any time during the full term for which he was elected. On the contrary, it only prohibited it as to him during the term for which he should hold by virtue of that election. But it was in his power to put an end to that term at any time. And who can say that he had not a perfect right to do so? He violated neither the letter nor the spirit of the constitution in giving up his office. He submitted himself again to the appointing power, and will be obliged to submit himself again to the people if he is re-elected. The governor was not obliged to reappoint him. If there had been any valid objection against it — any fitter person to fill the office — the governor might have appointed any other citizen as well, and we are bound to suppose that, in this case, as in any other, he made the appointment because he considered it the best, and in view of the responsibility that rested upon him. But as he*552 did. reappoint him, Judge DixoN took the office by a new tenure and entered upon a new term, precisely as any other person would have done. It was, therefore, with him a mere question of financial expediency' — -it might be said, with truth, of financial necessity. It was a question of whether he would continue to hold the office by virtue of his election, at the old salary, or give it up and take his chance for a reappointment and re-election for the sake of getting the increased salary. The reasons which compelled and fully justified his course are notorious. The war had doubled the expense of living, so that the old salary was inadequate to the support of his family. He had spent a number of the best years of his life in hard, unremitting toil, for this inadequate compensation, and having exhausted the little surplus which he had previously acquired it was a matter of sheer necessity with him either to give up the office altogether, or to take it by a new tenure under which he would receive the increased pay. Of his right to do this there is no question. That it was, under the circumstances, a duty which he owed to himself and his family, is clear. Of course the people are not obliged to re-elect him. That was one of the chances which he took, and had a right to take. But to refuse to re-elect him upon this ground would furnish a signal illustration of that affected virtue which strains at a gnat but can swallow a camel.”
Thus the matter was put- to the people, followed by such discussions, as would naturally be expected, up to the day of election, resulting in election of the chief justice by a substantial majority. That set the matter at rest for a long time, and, as was supposed, probably, permanently, as indicated by the fact that the chief justice was re-elected the following spring for a full term of six years without opposition and as further indicated by subsequent history, as we shall see. To what extent the foregoing really vindicates, as right, the circumstance of the resignation from office and regaining thereof, in the manner indicated, for the manifest purpose of thereby obtaining a greater compensation for official services than that incident to the office at the start, we do not intend to express any opinion.
Later upon the occasion for issuance of a warrant to Justice Siebeceer for the first quarter year of his incumbency by appointment to fill the vacancy caused by the death of Justice' BardeeN, opportunity was again presented to the state auditor to pass upon the matter under discussion, the salary incident of the office having been changed during the term for which Justice BaedeeN was elected, to $6,000. It appears, such auditor was uncertain as to whether the appointee was entitled to the increase or not, because, whereas, on the former occasion, the act expressly provided the increase should be so awarded, the new act (ch. 138, Laws of 1901) afforded the increase only “to justices thereafter chosen and for terms of office thereafter to commence,” expressly excluding those in office as to the remainder of their terms, that being amended by eh. 414, striking out the reference to those thereafter •chosen. Thus the question was presented of whether an incumbency by appointment constituted a period denominable
Relying on that opinion, the auditing officer ruled against Justice Siebecker’s application. Later, as appears, and whether by further advice of the attorney general’s office does not appear — but the presumption would be that new light had been shed on the matter which cast grave doubts upon the correctness of the opinion in the mind of the law officer, — the auditing officer reversed his ruling and issued to Justice Sie-becKEe a warrant for the increased salary, which had for a considerable length of time been retained.
It does not seem that the change in ch. 138, Laws of 1901, by ch. 414, had any significance, except to cut off opportunity to resign and regain'the place by appointment, as Chief Justice DixoN did, and. thereby a person in service at the time of
It is the opinion of the court that the view which has so long prevailed, which commenced, so far as discovered, with-Chief Justice WhitoN, one of -the dominating personalities framing the constitution, seconded by Justice Cole, also one.of such framers, and has been the guide for many legislatures, justices of this court, and all state officers having to do with the matter, without any disturbance whatever till a question was raised, as we have indicated, under the peculiar wording-of the law of 1901, should continue to be the guide; that such construction of see. 26, art. IY, is permissible, if not plainly required, and that after so long and so harmonious submission to such construction, it should be regarded as the correct one.
It requires a very clear case to justify changing the construction of a law, conceded to be somewhat involved, which has been uninterruptedly acquiesced in for so long a period as fifty years. It is firmly the opinion of the court, for reasons we have endeavored to state with the fulness the importance •of the case demands, that a situation justifying a change does not exist as to the matter in question.
We should say, in passing, that amendments were proposed in the constitutional convention placing the usual restrictions upon changing the salary of a justice of this court, in an appropriate section in the article on the judiciary, but it was not done, as we have seen. '
So the conclusion is that the judicial' term mentioned in .art. VII of the constitution has regard, primarily, to the office, disassociated from the occupant of it; in other words, it contemplates unity, so that several incumbents during the term take mere parts of an entirety; that “his term of office,” as used in sec.- 26, art. IV, of the constitution, has regard, primarily, to the personal element, the incumbent of the office; contemplates the period of incumbency, whether of a whole term, or a part of the entirety, under art. VII. As to the
By the Court. — Tbe prayer of tbe petitioner is granted.
Concurrence Opinion
(concurring). As I view this matter tbe only question involved is whether one appointed by tbe governor to fill a vacancy in tbe office of justice of tbe supreme court, which vacancy was caused by tbe death of tbe prior incumbent of that office, takes tbe salary fixed by statute enacted and in force prior to bis appointment, but not applicable to tbe salary of bis deceased predecessor in office because enacted, approved, and published after tbe term of such deceased predecessor bad begun.
I reach tbe same conclusion as tbe majority, but solely upon tbe following grounds: Precedents from other states have little advisory value in questions of interpretation, because, however nearly like tbe words in question may be to those in other state constitutions, they are not identical nor found in like collocation, nor affected similarly by other cognate expressions elsewhere found in tbe instrument. This weakness of such precedents has been often noted in questions of interpretation. Tbe provision of our constitution relating to increase or diminution of salary is not limited to judicial offices, but includes all public officers, and appears as a general limitation upon legislative power. It restricts tbe power of tbe legislature with reference to different classes of persons ; relates to tbe officer, not to tbe office, to bis term, not to-tbe term. It is as follows: .
“Sec. 26. Tbe legislature shall never grant any extra compensation to any public officer,, agent, servant or contractor after tbe services shall have been rendered or tbe contract en-*558 fcered into; nor shall the compensation of any public officer be increased or diminished during his term of office.”
I construe this as wholly personal to each of the classes therein mentioned, including the “public officer,” and the expression “during his term of office” accords with this construction. Otherwise the framers of the constitution would have used the expression “public office” instead of “public officer,” and “the term” instead of “his term.”
Again, in other sections of the same instrument where cognate restrictive provisions are found, the words employed are significantly different. As in sec. 10, art. VII, prohibiting judges from holding any other office, it is said:
“They shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected.”
Or sec. 12 of art. IV, which provides:
“No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created or the emoluments of which shall have been increased during the term for which he was elected.”
The contention of the learned attorney general is that sec. 26 -above quoted should be construed as if it read, “during the term for which the first incumbent was elected,” instead of “during his term,” and as if it applied to the salary fixed at the beginning of the official term of the first incumbent regardless of change of incumbents during this period or term. I think this would be giving the words “public officer” the meaning of “public office,” and the personal “his term” the meaning of the different impersonal expression, “the term,” and that such construction varies from the usual and ordinary meaning of these words and is therefore inadmissible.
I am convinced that the main purpose of sec. 26, supra, is to make public officers independent of the legislative branch of the government as far as possible, and to prevent the in-