State ex rel. Martin v. Kalb
6 N.W. 557
Wis.
1880
Check Treatment
Taylob, J.

It is insisted by the learned counsel for the appellant, that the legislature has no power to reduce the salary of the relator during his term of office, and that he is entitled to receive the salary fixed by the legislature at the time of his election, and when he entered upon the duties of his office. This claim is based upon the last clause of section 26, art. IY of the constitution, which reads as follows: “PTor shall the 'compensation of any public officer be increased or diminished during his term of office.”

It will be seen, by an examination of the constitution, that neither the term of office nor the compensation to be paid to county judges, or judges of inferior courts, are fixed by the constitution. It is not seriously contended that the legislature would not have the power to change both the • term of office and the compensation of the county judges, were it not for the provision- above quoted. It is well settled that, in the absence of any constitutional prohibitions or affirmative provisions fixing .the term of office of any officer, or his compensation, the legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected. The authorities cited by the learned counsel for the respondent fully establish this point. Butler v. Pennsylvania, 10 How. (U. S.), 402; Co. Com’rs v. Jones, 18 Minn., 199; Taft v. Adams, 3 Gray, 126; Conner v. New York, 5 N. Y., 285; People v. Banvard, 27 Cal., 470; In re Bulger, 45 Cal., 553; Cooley on Constitutional Limitations, 276 and note; Supervisors v. Hackett, 21 Wis., 613; State v. Douglas, 26 Wis., 428; Hall v. State, 39 Wis., 79. Many other cases might be cited holding the same doctrine; but these are sufficient, as the decisions of our own court have settled the question in this state. The case cited and relied upon to some extent by the learned counsel for the appellant, reported in 62 Pa. St., 343, has very little bearing upon the question, as it appears from the opinion that the constitution of that state fixe.d the *184term of office of the judge, and provided that adequate compensation should be provided by law for the judges, which should not be diminished during the continuance of then-offices.

The real question in the case is, Does the provision of the. constitution above quoted apply to the office of county judge? Upon this question we think this court has already decided against the appellant’s claim. In the case of the Board of Supervisors v. Hackett, 21 Wis., 613, it was expressly held that “ the word ‘ compensation,’ as used in section 26, art. IY of the constitution, above quoted, signifies a return for the services of suoh officers as receive a fixed salary payable out of the public treasury of the state; and that it does not, and was not intended to, apply to the remuneration of that large class of officers, such as sheriffs, constables, clerks of courts, and others, who receive specific fees for services as they are from time to time required to render them. ... I think the limitation applies only to those salaried officers paAd by the state, and not to those minor ones who, according to the usual course of public business, are. paid by fees taxed or allowed for each item of service as it is rendered.” It will be seen, by an examination of the laws respecting judges of probate, and county judges exercising the duties of judges of probate, that they come within the class of officers whose compensation is not paid out of the state treasury, and that for many years after the adoption of the constitution they were paid for their services by specific fees, both for their services as judges of probate and for services as judges having civil jurisdiction. Sections 6 and 7, ch. 131, R. S. 1849, and sections 12 and 13, ch. 133, R. S. 1858.

The policy of paying fees instead of fixed salaries to county judges was not changed until 1868, when the legislature passed chapter 121, Laws of 1868, which provides that the several county boards shall fix a salary or compensation for the county judges of their several counties, to be paid out of the county *185treasury, and deprives such judges of the right to charge fees for their services. That act did not, however, apply to counties where the county judges had jurisdiction in civil actions. The same act provided that certain charges should be paid by executors, administrators and guardians into the treasury of their respective counties, instead of the fees theretofore paid for the services of the county judges as judges of probate. This latter provision was evidently intended to create a fund to pay the salary of the county j udge. By chapter 40, Laws of 1872, the provision in chapter 121, Laws of 1868, providing for the payment of charges by executors, etc., was repealed, and the salaries of the judges have since been, with a very few exceptions, paid out of the funds of the county raised by general taxation. The policy which has been pursued by the state in changing the compensation of county judges from fees for special services to salaries, fixing the gross amount of their compensation, has also been adopted in the case of county clerks and county treasurers. In the early history of the state, and down to 1863, these officers were also paid by the receipt of fees, but since that time they have received fixed salaries. If the legislature had full control of the subject of the fees to be received by these officers, when their compensation was fixed by the amount of fees earned, it would seem that the same control over such compensation would remain with the legislature when it fixed their compensation in the shape of a salary. The rule stated in the case of Supervisors v. Hackett, supra, limiting the constitutional restriction as to the compensation of public officers to such officers as receive their compensation out of the state treasury, has been at least impliedly recognized and adopted by the legislature in fixing the salaries of county officers. It will be seen, by an examination of the statutes fixing the salaries of all the county officers, that the legislature has taken the pains to enact that such salary shall be fixed before the election takes place, and when fixed, as provided by law, it shall not be increased or *186diminished during the term of office of the person elected. The present law upon the subject of the salaries of county-officers, including county judges (section 694, R. S. 1878), provides that “ the county board, at their annual meeting in November, shall fix the amount of salary which shall be received by every county officer, including county judge, who is to be elected in the county during the next ensuing year, and is entitled by law to receive a salary out of the county treasury; and the salary so fixed shall not be increased or diminished during his said term of office.” The section then provides for the payment of salaries out of the county treasury, and for the salary the officer shall receive in case the county board fails to fix it as above required, and also provides that “ this section shall not apply to any particular county where salaries of its officers have been specially provided and fixed by law.” The limitation in this section does not, therefore, apply to the relator in this ease, as he does not claim his salary under this section, but claims that it has been specially provided and fixed by law. All the acts which have conferred upon the boards of supervisors of counties the right to fix the salaries of officers, have contained a similar restriction to the one contained in the section above quoted, making the same unchangeable when once fixed by the board during the term of the officer elected, except chapter 121, Laws of 1868, which first authorized the county boards to fix the salaries of county judges, and chapter 220, Laws of 1863, which first gave a salary to the county treasurer. See section 85, ch. 13, R. S. 1858, as to salary of district attorney; sections 1 and 2, ch. 399, Laws of 1864; sections 1 and 2, ch. 75, Laws of 1867. If the legislature supposed the constitutional inhibition applied to all county officers who received a fixed salary, it was a superfluous work on its part to re-enact that provision in the laws providing for such salary. Whether the legislature itself could change the salary of any county officer whose salary had been fixed by the county board, during the term for which he was elected, *187by a change of the general law on the subject, or by a direct act fixing the salaries at a different sum from that fixed by the board of supervisors, is a question not presented in this case. Following the decision in the case of Supervisors v. Hackett, we hold that the legislature had a right to change the salary of the relator during his term of office.

There is another view of the case which shows the propriety of the change made in this case. It is evident from the legislation upon the subject, that the “ second county court for Brown county ” was not created as a probate court in the first instance, but as an inferior court having civil and criminal jurisdiction, evidently as a relief to the circuit court of said county. It was supposed that the necessities of the people required the creation of such court in order to dispatch the business of litigation in that county. And the salary of $3,000 was given to the judge of the court as a court of civil and criminal jurisdiction, and not as a court of probate powers. The law expressly piovided that when the probate business should devolve upon that court, by the occurrence of a vacancy in the office of the county judge having probate jurisdiction, his salary should be increased to $3,500. The people of Brown county, after an experience of a few years, concluded that there was no longer any necessity (for the county court as a court of civil and criminal jurisdiction, and asked to have so much of the law as conferred that jurisdiction upon the. county court repealed. The legislature repealed the law to that extent, and at the same ie repealed so much of the law as gave the judge the salary of $3,500, and fixed the salary at $1,500. The county court of Brown county has now the same jurisdiction, and no more than it would have had if the law of 1875, creating “ the second county court for Brown county,” had never been passed; and the only difference now between the county court of Brown county and the other county courts of the state not having jurisdiction in civil or criminal cases, is that the salary is fixed by the legislature instead of the county board.

*188There was certainly no injustice in this law, and it ought to he sustained unless it conflicts with some clear constitutional inhibition. As an inferior court of civil and criminal jurisdiction, it is the creature'of the statute, and not of the constitution. It was a court which the constitution permitted the legislature to create, and did not prevent it from destroying. The legislature had, therefore, plenary power over that court. It could create or destroy it at its pleasure; and this power of creating or destroying these courts at the will of the legislature lias never been questioned, and has been frequently exercised. Suppose that in this case, and before a vacancy had occurred in the regular county court of Brown county, the legislature had repealed the act creating the “ second county court for Brown county:” would any provision of the constitution have been violated? We are not aware of any provision of the constitution which would prevent such repeal. If the repeal toot effect, then there would be no longer any judge of said court, and no right to receive a salary as such judge. There is no substantial difference between the supposed ease and the one we are now considering. If the salary of $3,000 was given by the legislature as compensation solely for the services of the judge as a judge of the court having civil and criminal jurisdiction, when there was no longer any necessity for such court, and it was destroyed, it was right that the compensation for the service no longer required should be taken away. But in this case the whole compensation was not taken away, although the judge was relieved of all the services for which the compensation was given. We think the relator has no cause of complaint, and no right to the relief asked by his complaint.

It was claimed by the learned counsel for the respondent that the original law creating the “second county court for Brown county ” was void, because it provided that the term of office of the judge of such court should continue for more than six years, and was therefore a violation of section 2, art. *189YII of the constitution, wbicb provides that the term of office of the judges of inferior courts shall not be longer than that of the judges of the circuit court. In the view we have taken of this case it is not necessary to decide this question. We would, however, suggest that the act might be sustained, as the body of the law provides that the judge of such court shall be elected on the first Tuesday of April next after the passage of the law, and every six years thereafter, whose term of office shall be six years from and after the first day of January next after his election. So far there is no objection to the law; then there is this proviso: “Provided, that the term of service of the first judge to be elected shall commence on the first Monday of May next.” This proviso might be void, as in conflict with the provision of the constitution above quoted, and yet not affect the body of the act. It could hardly be said that this proviso was so material a part of the act that the legislature would not have passed any part of the act unless the proviso had been embodied therein. If the proviso be in conflict with the constitution, then it may be rejected as void, and the act be read as though it were not contained therein, and the constitutionality of the act so read be sustained.

By the Court. — -The judgment of the circuit court is affirmed.