County of Greenlee v. Laine

180 P. 151, 20 Ariz. 296, 1919 Ariz. LEXIS 169

• Court: Arizona Supreme Court
• Decided: April 17, 1919
• Docket: Civil No. 1634
• Status: Published

Opinions

ROSS, J.

Appellee, who is the superior judge of appellant county, brought suit to recover a balance of salary claimed to be due him. At the time he was elected, 1914, and at the time of his induction, January, 1915, the salary attached to the office of judge of the superior court of Greenlee county was fixed by legislative aet at $3,500 per annum. Section-3222, Civil Code 1913.

The third legislature, on March 14, 1917, passed an act (Laws 1917) c. 61), with th'e emergency clause, fixing the salaries of state and county officers. By the terms of this aet, the salaries of the following state officers were neither increased nor diminished: Secretary of the state, state auditor, state treasurer, superintendent of public instruction, members of the corporation commission, state mine inspector, members of the tax commission, members of the supreme court, clerk of the supreme court. The salaries of these officers remained the same as fixed by the Constitution and the act o2 1912 (chapter 2, title 15, Civil Code). However, the salary of the Governor was increased from $4,000, as fixed by the Constitution and the Laws of 1912, to $6,500, as also was the salary of the attorney general increased from $2,500 to $4,000 per annum. The salaries of some of the superior judges were slightly increased; that of the appellee being raised from $3,500 to $4,000 per annum. This act was approved on the above date by the Governor, and therefore comes to us with the legislative and executive sanction and assertion of its constitutionality. Appellant’s board of supervisors disallowed appellee’s claim for the legislative increase for the months of March to December, 1917, and January, 1918, inclusive. Hence this suit.

The appellant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause -of action. The appeal is from the order overruling demurrer and from the judgment. The only point raised is as to the power of the legislature to increase the salary of the appellee during his term of office. If that power existed in the legislature the judgment was right, but if that power did not exist in the legislature the judgment was wrong. The question involves an examination of some of the provisions of our Constitution, notably section 17, article 4, part 2, reading:

‘ ‘ The Legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office,” and section 24, article 6, reading:

“No change made by the Legislature in the number of judges shall work the removal of any judge from office; and no judge’s salary shall be reduced during the term of office for which he was elected. ”

It is the contention of appellee that, when these provisions are taken and construed together, their meaning and import is that the legislature may increase the salary of the superior judges of the state during their terms of office. To sustain his position, he relies upon two well-known rules of construction:

The first is that specific or particular provisions of a statute or constitution will prevail over general terms or expressions. But, to have that effect, the two provisions must conflict with each other. If there is no conflict, if they coalesce or agree, the rule can have no application. Section 17 comprehends •both increases and decreases of compensation, and forbids them during any public officer’s term of office. It includes in its terms all “public officers,” and announces a rule of compensation binding upon all alike, superior judges among others. Section 24 limits its prohibition to particular public officers, to wit, judges, and the diminution of their salaries during the term for which they were elected. The limitation upon the power of the legislature as contained in section 24 does not affect the restrictions upon the legislature as found in section 17, for both sections prohibit in part the same thing — the reduction of a judge’s salary during his term. These provisions are harmonious in agreement. That being so, appellee’s rule that particular statutes or provisions should be given effect over general provisions has no application. In 12 Corpus Juris, 709, section 56, it is said:

“Distinct constitutional provisions are repugnant to each other only when they relate to the same subject, are adopted for the same purpose, and cannot be enforced without substantial conflict.”

Tested by this very reasonable rule of construction, there is no shadow of conflict or repugnancy between the two provisions of sections 17 and 24.

But it is said that, because section 24 only forbids a reduction of a judge’s salary, it impliedly authorizes an increase. That doubtless would be true, if section 24 was the only expression of the Constitution on the subject; but to give it that force here would be to create a conflict with section 17 of the Constitution by implication. No public officer’s compensation is excepted from the terms of section 17, and it is a general rule that, where no exception is made in terms, none will b* made by mere implication or construction. Rhode Island v. Massachusetts, 12 Pet. 657-722, 9 L. Ed. 1233; Cohens v. Virginia, 6 Wheat. 264-378, 5 L. Ed. 257; Society, etc., v. New Haven, 8 Wheat. 464, 489, 490, 5 L. Ed. 662; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; State v. Dircks, 211 Mo. 568, 111 S. W. 1; United States v. Board of Commissioners, 216 Fed. 883, 133 C. C. A. 87.

As was said in the last case, “But we cannot be governed by implications against the express language of the statute.” It would be a grave and serious step to except judges from the terms of section 17 upon a mere implication. The court cannot write into the Constitution what its makers omitted or refused to write into it. Those persons commissioned and empowered to write it, and the people who adopted it, did not choose to use language directly excepting the judges and their compensation from the terms of section 17; nor is that instrument, taken as a whole, capable of a construction, by implication or otherwise, permitting members of the judiciary to accept increased salaries.

The other rule of construction invoked by appellee to sustain his contention is the one stated by Judge COOLEY as follows:

“The rule applicable here is that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if possible, and must lean in favor of a construction which will render every word operative rather than one which may make some words idle and nugatory.” Cooley, Const. Lim., 5th ed., p. 70.

As we have seen, the two sections involved do not conflict, and therefore require no effort to make them harmonize, and, giving' full force and effect to the last rule of construction, no word of section 24 is rendered inoperative. Because the same thing is only measurably provided against by section 24, and is wholly provided against in section 17, does not render the former, or any part thereof, “idle and nugatory.” As was said by Mr. Justice McKENNA, in Pirie v. Chicago Title & Trust Co., 182 U. S. 449, 45 L. Ed. 1171, 21 Sup. Ct. Rep. 911:

“It does not follow that because the terms of a section are defined elsewhere, or the consequences, of its provisions are expressed elsewhere, it becomes a nullity or is defective. ’ ’

“There is another rule of construction, . . . and it is, where the court finds, in any particular clause, an expression not so large and extensive in its import as those in other parts of the same statute, if, upon a view of the whole act, they can collect, from the larger and more extensive expression used in other parts, the real intention of the Legislature, it is their duty to give effect to the larger expressions.” State v. Jennings, 27 Ark. 419, 423.

The same rule, with different phraseology, is found in 36 Cyc. 1131:

“But a particular expression in one part of a statute, not so large and extensive in its import as other expressions in the same statute, will yield to the larger and more extensive expressions, where the latter embody the intent of the Legislature.”

The plain, explicit and -unambiguous language of section 17, as we hope later to show, is a constitutional declaration of policy that public officers’ compensation, when once fixed should be inviolate, at least during the term for which the officer was elected. In it is to be found “the real intent” of the framers of the Constitution and the people who voted for it.

But, if what we have already said does not convince that the two sections (17 and 24) are not repugnant, but harmonious, and may be allowed to stand side by side without any nullification of one by the other, we submit there is another very cogent and convincing reason why they should not be given the effect contended for by appellee, and that is that they were inserted in the organic law for widely different purposes. Section 17 is found in part 2 of ai’tiele 4, which treats of the legislative department of the state, and is the enunciation of a general policy affecting the compensation of public officers. Section 24 is the very last section of article 6 treating of the judicial department. Section 2 of this article, among other things, provides that the supreme court ■shall consist of three judges and that the number may be increased or diminished from time to time by law, but the number shall never be less than three. Section 5 provides that each county shall have at least one superior judge, and' if the population of the county is more than 30,000, the law may provide one judge for each additional 30,000, or major fraction thereof; and where there are more judges than one, it provides for the distribution and assignment of the business of the court.

After vesting the legislature with the power to change the number of judges of the supreme court and the superio]’ courts under certain conditions, it was very natural, as well as reasonable and just; that the framers of the Constitution should say, as they did in section 24:

“No change made by the Legislature in the number of judges shall work the removal of any judge from office; and no judge’s salary shall be reduced during the term of office for which he was elected.”

This language is predicated on sections 2 and 5 of article 6 in regard to changes in the number of judges, and the reason for it is plainly not to let the division or reduction of the work consequent upon an increase of the number of judges be an excuse to reduce the salary of a judge during his term, or to let a reduction in the number work his removal or affect his salary during the term for which he was elected. Under sections 2 and 5, the legislature may lighten the work of a superior judge by providing for two or more superior judges to do the work the one judge formerly was required to do, or lighten the work of the three supreme court judges by increasing the membership of that court to four or more, but in no event can the salary attached to the office at the time of said judge’s election be reduced. Indeed, a reduction of the number of judges shall not take from the judge his salary or have the effect of reducing it.

So it is that section 24 is far from being in conflict, either in words or spirit, with section 17 or the general policy therein announced, but, on the contrary, has for its purpose the strict maintenance of that policy by providing that even the reduction of the number of judges should not work a removal of a judge or affect his salary during his term. The absence from section 24 of a prohibition against an increase of the compensation of a ° public officer during his term is easily accounted for when the' purpose of the section is considered. Its purpose was to prevent an injustice being done a person who had been chosen in the manner provided by law to fill the office of judge. Without its restraining force, the legislature could possibly, under other provisions of the organic law authorizing it to reduce the number of judges, abolish the office of judge, and thereby defeat a successful candidate from a realization of the fruits of his office. While section 17 forbids a diminution of compensation, it does not prohibit the removal of an officer by the abolishment of his office, as section 24 does. Bogue v. Seattle, 19 Wash. 396, 53 Pac. 548; 22 R. C. L. 579, §§ 293, 294. Section 24 was evidently inserted to protect the officer by insuring him that the happening of the things enumerated in sections 2 and 5, article 6, should not, however it might affect his status or duties, lessen the salary he was made to believe he would be allowed to draw during his term. It was intended as a shield to the members of the judiciary of the state, and it must be limited in operation to that purpose.

It is a well-established rule that — ■

“The interpretation of constitutional provisions is to be made in view of the history of the times, the evil to be remedied, and the purpose to be accomplished.” Fargo v. Powers (D. C.), 220 Fed. 697, 700.

Long before Arizona’s Constitution was written, the provision of section 17 against 'increasing or decreasing a public officer’s compensation during his term, or some such similar provision, had found a place in many of the Constitutions of the states of the Union. It has been demonstrated over and over that, unless the power to change salaries of public officers during their term, was taken from the legislature, much of the valuable time of that body would be consumed in either trying to appease the appetite of importunate constituents for increase of compensation, or to gratify the spleen or grudge of others by passing laws diminishing the compensation of public officers. These evils and a train of others, pernicious in their influence alike upon legislation and upon those promoting or seeking legislation, were well known at the time our Constitution was written and adopted. Hence, the plain, inexorable rule laid down in section 17:

“Nor shall the compensation of any public officer be increased or diminished during his term of office.”

This expression is explicit, unambiguous and free from doubt. It is all-inclusive. Mr. Justice LAMAR, in Lake County v. Rollins, 130 U. S. 670, 32 L. Ed. 1060, 9 Sup. Ct. Rep. 652, says:

“If the words convey a definite meaning which involves no absurdity, nor any contradiction of the other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the court nor the Legislature have the right to add to it or take from it. ’ ’

To say that section 17, taken in connection with section 24, does not include the members of the judiciary of the state would lead to an “absurdity,” in that it would leave, of all the public officers of the state, the judges alone free to solicit and exercise influence to secure increases of their compensation during their term of office. Why this favoritism or advantage should be extended to the judiciary, and no other public officers of the-state, is inexplicable, and before we could persuade ourselves that such was the case, the framers of the instrument would have to use plain and direct words saying so. We would not so hold by implication, or by any strained or doubtful construction of the Constitution.

The reasons that prompted the writers and the ratifiers of the Constitution to provide that all county and state officers should be paid “fixed and definite salaries,” which could not be increased or diminished during their term of office, no doubt applied with equal, if not greater, force to judges than to other public officers. Section 17, art. 22; also section 17, art. 4, pt. 2. The conclusion, therefore, is inevitable that the policy declared in section 17 of the Constitution applies to all public officers without exception or discrimination; that its plain and explicit meaning is not and never was intended to be changed by the expressions contained in section 24, but on the contrary, the two sections were inserted for a different object. They not only harmonize, but support each other.

When the finished work, in the form of law, of the other two co-ordinate branches of the government — the legislative and executive — has, in a proper ease, been questioned and passed on to us as the representatives of the judicial department for our opinion as to its constitutionality we acknowledge we approach the discharge of our duty with reverence, and, we hope, with all respect due the other branches of the government, for we must remember that the legislators and the Governor who have placed their seal of approval upon the law, like ourselves have taken an oath to support the Constitution. Influenced by that consideration and thought, the courts all over the land have adopted the rule of allowing a law to stand when attacked, if any doubt exists as to its invalidity. It is only when such a law clearly violates the Constitution that we would be justified in striking it down. By giving chapter 61, Laws 1917, a prospective operation, we are able to sustain the action of the other branches of the government in writing it upon our statutes, and at the same time permit no violence to the Constitution.

The fact that the legislature did not have the power to increase the salary of appellee during his term of office does not necessarily make the salary act (chapter 61, Laws of 1917) unconstitutional when applied to officers elected there- . after. The legislature may increase or diminish salaries of .public officers. There is no prohibition in the Constitution against their doing so. The limitation is against the increasing or decreasing of a public officer’s salary during his'term of office, or the term for which he was elected. The injunction against the changing of the compensation would, however, postpone the operation of chapter 61, Laws of 1917, until after the expiration of appellee’s term.

Judgment reversed and ease remanded, with direction to sustain demurrer and dismiss complaint.

BAKEB, J., concurs.