Lamb v. Board of Auditors

209 N.W. 195, 235 Mich. 95, 1926 Mich. LEXIS 655

• Court: Michigan Supreme Court
• Decided: November 10, 1925
• Docket: Calendar 32,206
• Status: Published

Opinions

Clark, J.

This friendly suit is brought to determine the compensation of nonresident circuit judges, sitting in Wayne county on assignment of the presiding circuit judge. The question is on section 12, art. 7, State Constitution of 1908:

“Each of the judges of the circuit courts shall receive a salary payable monthly. In addition to the salary paid from the State treasury, each circuit judge may receive from any county in which he regularly holds court such additional salary as may be determined from time to time by the board of supervisors of the county. In any county where such additional salary is granted it shall be paid at the same rate to all circuit judges regularly holding court therein, * * *”

and particularly on the meaning of the word “regularly” as used in the section. The annual salary of a circuit judge, paid by the State, is $5,000. Act No. 143, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 12141). Plaintiff is the circuit judge of the 28th circuit composed of the counties of Kalkaska, Missaukee, Wexford, and Benzie (3 Comp. Laws 1915, § 12110). The third circuit is composed of the county of Wayne (3 Comp. Laws 1915, § 12085). The board of supervisors of the county of Wayne, at the time in question, had granted to the circuit judges of that county an additional annual salary of $8,500.

The legislature in 1915 passed the presiding circuit judge act, effective August 24, 1915 (Act No. 213, Pub. Acts 1915 [3 Comp. Laws 1915, § 14546 et seq.]). This act, after providing for the election'by the circuit judges of the State of a presiding circuit judge, defined his power and duty:

“(14547) Sec. 2. The presiding circuit judge shall have full directory power over the matter of apportioning the work of the several circuits among the circuit judges of the State.”

Plaintiff, by direction of the presiding circuit judge, held court in Wayne county. He requested of defendants that he 'be paid per diem for the time the additional salary so granted by the supervisors. They refused. We are asked in mandamus to compel payment.

Where does the plaintiff regularly hold court within the meaning of the section of the Constitution above-quoted? Clearly it must be the counties of his own circuit.

We quote section 8, art. 7, of the Constitution:

“The State shall be divided into judicial circuits in each of which there shall be elected one circuit judge. The legislature may provide by law for the election of more than one circuit judge in any judicial circuit. A circuit court shall be held at least four times in each year in every county organized for judicial purposes. Each circuit judge shall hold court in the county or counties, within the circuit in which he is elected, and in other circuits as may be provided by law. The legislature may by law arrange the various circuits into judicial districts, and provide for the manner of holding courts therein. Circuits and districts may be created, altered or discontinued by law, but no such alteration or discontinuance shall have the effect to remove a judge from office.”

This section requires that a circuit judge shall hold court in the county or counties within the circuit in which he is elected, and there must be at least four sittings or terms in each county in each year. By this section we are committed to the principle that the people are entitled to the service of the judge whom they elect.

But what is the meaning of the second sentence of said section 12:

“In any county where such additional salary is granted it shall be paid at the same rate to all circuit judges regularly holding court therein.”

Its meaning, in the present state of the law, is that in those circuits in which the legislature has provided for the election of more than one circuit judge (art. 7, § 8), all such circuit judges of the circuit shall be paid such additional salary, if granted, at the same rate. It has perhaps a further meaning, now potential merely. Said section 8 provides that the legislature may arrange the circuits into judicial districts. If the legislature should create of two or more circuits a judicial district and provide for rotation of the circuit judges therein throughout the district and, perhaps, for the election of such judges at large in. the district, and that such judges should hold court, regularly in all the counties of the district, then all such circuit judges might be entitled to additional, salary at the same rate if granted by any county of the district.

But the legislature has not created such judicial districts. It passed the presiding circuit judge act, which, we take notice, has given general satisfaction. As administered, it has done much toward expediting the business of the courts. Its chief feature (apart from aid in emergencies or exigencies) is in affording relief, in a- prompt and orderly manner, to circuits where business is congested, as it quite constantly is in the great and growing industrial center within Wayne county. It is well that a circuit judge in a circuit where business happens to be light may relieve in another circuit where business is heavy.

It is well to note, too, the statute (3 Comp. Laws 1915, § 12144) provided that in certain cases the governor may designate a circuit judge to hold court temporarily in a circuit other than his own, and the statute (3 Comp. Laws 1915, § 12307) providing among other things that circuit judges may hold court for each other. But it cannot be said that a circuit judge, sitting in a county outside the circuit in which he was elected, by occasional exchange and agreement with another circuit judge, or by direction of the pre siding circuit judge to relieve against congestion, emergency, exigency, or otherwise, is “regularly holding court” in such county. It is urged that “regularly” has various shades of meaning, defendants, in effect, contending that “regularly holding court” means to hold it at fixed and certain intervals, regular in point of time, and plaintiff stating that it means “following the rule; according to rule or law; observing the prescribed course,” and that such possible difference in meaning presents an ambiguity in the quoted language of the Constitution permitting resort to the Constitutional Debates that we may be enlightened.

If that be granted, the Debates confirm what we have said. The delegates, in building the section in question (art. 7, § 12), had in mind the possible and then probable arranging by the legislature of the various circuits into judicial districts (art. 7, § 8), and sought to provide for equal distribution to the judges regularly holding court in such district of any additional salary so granted by any board of supervisors in the district. Beecher’s Ann. Const. of 1908, p. 92. That the presiding circuit judge act was to follow a few years later, no one seems to have anticipated.

We quote from the Debates:

“Mr. Flannigan: It is.not at all likely, at least we think it is not at all likely, that the county of Washtenaw, or any other county bordering on the county of Wayne, would be attached to the county of Wayne in a district, but even if that should occur at the hands of the legislaturé the result would be that the circuit judge elected by the county of Washtenaw in his turn would be obliged to hold court in Wayne county, and the circuit judge of Wayne in his turn would be obliged to hold court in the county of Washtenaw. The circuit judge of the county of Washtenaw would render to the county of Wayne precisely the same service as the circuit judge elected in the county of Wayne. There is no reason why, in the event that the circuit judge of the county of Washtenaw performs that service for the county of Wayne, he should not receive from the county of Wayne the same compensation as the county of Wayne judge.” Debates of the Const. Conv. p. 1018.

“Mr. Knoivles: If you will refer to the old Constitution, you will find that this section reads, ‘And the circuit judge or judges of such circuits, in addition to the salary provided by the Constitution, shall receive from their respective counties such additional salary as may from time to time be fixed and determined by the board of supervisors of said county.’

“This is arranged at present so that where there are several counties in one circuit each county in that circuit may pay that judge something. The convention this morning has decided that it would permit the legislature to adopt a circulating system of judges; this circulating system of judges is supposed to be so arranged by the legislature that judges receiving similar salaries probably could be grouped together-For instance, Detroit judges could be grouped in one-district. In recognizing this fact the committee on-arrangement and phraseology have said ‘each circuit judge may receive from any county in which he regularly holds court.’ Now he will regularly hold court in perhaps as many, if not more counties from which he is elected than he holds court in counties from which he is not elected. In other words, the circuit judge will be elected in his circuit, but he will hold court all over this district in which his .circuit court is situated. He may be one of four judges, or may be a judge from a circuit court that circulates over a district that is large enough to compose four circuit courts, therefore, in such a case he cannot receive any compensation for three-quarters of his work, because he would be. working three-fourths of his time in other circuits, and according to the amendment those other counties could not pay him anything for his services.” Debates of the Const. Conv. p. 1018.

“Mr. Hally: I think it is a rank piece of injustice to have one county raise the salary of its judges because it sees fit to do so, and then afterwards have the legislature split that salary with the judges of several other counties, and that possibility is open to the legislature in this proposal here. The gentleman from Wayne, Mr. Campbell, in speaking of this, pointed out the fact that in the county of Wayne there are six judges each receiving six thousand dollars a year. I am informed that the surrounding circuits with which it would be circuited, pay two thousand five hundred dollars.” * * * Debates of the Const. Conv. p. 1017.

It was proposed by Mr. Snow that the sentence “The legislature may by law arrange the various circuits into judicial districts, etc.,” be stricken out, to which Mr. Broomfield replied:

“Mr. President, I sincerely hope that the amendment offered by the gentleman from Saginaw (Mr. Snow) will not prevail. The purpose of the language which the gentleman from Saginaw (Mr. Snow) desires to have stricken from this proposal is to make it permissive upon the part of the legislature to establish in the State of Michigan the circulating system of circuit judges. I desire to call the attention of the convention to the fact that the language of this proposal does not definitely fix upon the State of Michigan that system. It does not make the circulating or rotating system mandatory, it simply makes that system permissive. I believe that is a very wise provision. There is a widespread demand all over this State from the members of the bar and among the circuit judges for the establishment of the circulating system of judges.- The reasons for that demand must be manifest. There are circuits in this State where the circuit judges work about one day in a week. That is not altogether their fault, it is because of the fact that their circuit is so small that there is not sufficient business to keep the judge busy. Side by side with that circuit there may be a circuit where the judge is overworked; who has more business than he can attend to. Now, if the circulating system of judges were in vogue, if it were possible for the legislature to arrange three circuits, we will say, into a group, and provide that the judges in that circuit might rotate, the evil, or injustice would be corrected. There are various other defects in our present system that would be corrected by the establishment of the circulating system of judges. I sincerely hope, gentlemen of the convention, that this language will be retained in this provision, and that it will be at least made permissive on the part of the legislature to establish that reform for which there is such a widespread demand in the State of Michigan today. _ I want to say further that as I understand it the association of circuit judges of this State is almost unanimously in favor of this system.” Debates of the Const. Con. pp. 1014, 1015.

And Mr. H. M. Campbell said:

“Now, if the Wayne circuit was included in two or three other circuits, in the first place it would throw the whole system into confusion. In the second place there would be a general demand to equalize the salaries of the judges throughout the several counties which would be included in that circuit; the result probably would be that the salaries of all would be reduced because otherwise to make it fair the salaries of the judges of the other circuits would have to be raised to an amount equal to that now paid to the circuit judges by Wayne county. I think all would admit in the other circuits where the business is not heavy and the responsibility is not as great, that to raise the salaries of the judges in Washtenaw, Macomb and Monroe to six thousand dollars a year would be to raise them too much. I think where such a result may follow that it is unwise to provide a system of that kind. It would probably result in similar inequalities, perhaps not to the same degree, all over the State. If one circuit has little business and another circuit has more business than the judge can attend to, it is very easy to provide by law for the judge in the circuit which has the lesser amount of business to sit in the other circuit and give relief in that way. It does not seem to me to be wise to incorporate in our system so radical a change as this, and I hope the amendment will prevail.” Debates of the Const. Conv. p. 1015.

“The secretary then read clause seven as follows:

“ ‘Each circuit judge, in addition to the salary paid from the State treasury, may receive from his respective counties such additional salary as may from time to time be fixed by tbe boards of supervisors of said counties.’

“Mr. Chairman: Are there any amendments to the seventh clause?

“Mr. Flannigan: Mr. Chairman, I have á substitute which I desire to submit for that clause.

“The secretary read the substitute as follows:

“Amend clause seven of file No. 162 by adding after the word ‘counties’ in the fourteenth line, as follows:

“ ‘In case of the arrangement of the various circuits into counties or districts, and in all cases where there shall be more than one circuit judge in any judicial district, any county in any such group, district or circuit electing to pay additional salary hereunder, shall pay equally to each circuit judge of such group, district or circuit.’

“Mr. Flannigan: The object of that, Mr. Chairman, is to prevent the board of supervisors of any specified county from paying more to one circuit judge than to another.” Debates of the Const. Conv. p. 707.

“Mr. HecJcert: Mr. Chairman, I think the amendment offered by Mr. Flannigan should be adopted, for the reason that one county in a circuit or group of circuits would not be likely to appropriate money to the salary of a circuit judge, or to all of the circuit judges in a group, unless the other counties did it, and I think the adoption of this amendment would prevent any county from making an appropriation toward the increase of a circuit judge’s salary unless all the counties within the group would do the same thing.” Debates of the Const. Conv. p. 708.

“Mr. Flannigan: Mr. Chairman, there has been considerable discussion as to whether or not the county should be permitted to pay extra compensation. That question is not before the committee. The question before the committee is on the amendment offered by myself. The purpose of that amendment is this: to obligate the board of supervisors of any county electing to pay extra compensation, to treat alike every circuit judge who is compelled by law to hold court in such county. If we have a county with two circuit judges in it, the board of supervisors of that county should not be allowed to pay a thousand dollars extra compensation to one man and five hundred to another. If a circuit judge residing in a county having a small volume of court business and each county is unable to pay a large compensation, that judge, being compelled by the arrangement of the legislature under this provision to hold court in a larger county, and does as much work in the larger county as the judge residing in the larger county, he ought to be paid equally with the other judge; and I hope that this amendment will prevail.” Debates of the Const. Conv. p. 709.

That the legislature, under authority of section 8, art. 7, Const., by the presiding circuit judge act, made of the State one judicial district in which any or all of the circuit judges may be said to sit regularly in any and all circuits is not tenable. If the State is now one judicial district, then every circuit judge sits regularly in all counties of the State, and any additional salary voted by any board of supervisors inures equally to all circuit judges of the State. The Constitution affords no basis for the claim of per diem compensation. If Wayne and Washtenaw had been placed in one judicial district and rotation of judges within the district had been provided for so that all circuit judges of the district were required to sit regularly in both counties, can it be that a Washtenaw judge while sitting regularly in Wayne would be entitled to only a per diem allowance of the extra compensation? If so, while a Wayne judge was sitting in Washtenaw would he be deprived per diem of the extra compensation voted in Wayne? The Constitution answers these questions plainly in the negative.

If plaintiff, while sitting in Wayne, is entitled to a per diem allowance of the extra compensation voted in Wayne on the equitable argument that when he is doing the same work done by a Wayne judge he should receive the same pay, then, what is the rule when a Wayne judge holds court in the plaintiff’s circuit? Does he lose per diem the extra compensation? Or does the rule work only one way? If a Wayne judge, where the extra compensation is $8,500, hold court in another circuit where the extra compensation is $6,500, may he have the allowance in both circuits? If not, which may he have? These problems arise only where a tortured construction of the plain language of the Constitution is attempted.

We find it unnecessary to consider statutes relating to payment to a circuit judge of expenses when sitting or acting officially without his circuit or in a county other than that in which he resides. We conclude that plaintiff, circuit judge of the 28th circuit, was not one regularly holding court in the 3d circuit, within the meaning of said section 12, art. 7, State Constitution.

The writ is denied. No costs.

Bird, C. J., and Sharpe, Steere, and Fellows, JJ., concurred with Clark, J.