Pruett v. Delony

269 So. 2d 109, 289 Ala. 578, 1972 Ala. LEXIS 1109

• Court: Supreme Court of Alabama
• Decided: September 21, 1972
• Docket: 8 Div. 484
• Status: Published

Opinions

PER CURIAM.

The only point raised by this appeal is whether the Honorable Clifford K. Delony, circuit judge of Colbert County, can require the Colbert County Commission to pay his supplemental salary as provided by law.

Judge Delony filed a mandamus petition to compel the county commission to pay his supplemental salary which he claimed he was entitled to by law. A special judge appointed to hear the case decided in his favor and ordered the county commission to pay him $15,164.50, the amount the parties agreed was due if he was legally entitled to recover.

The Colbert County Commission appealed and filed a supersedeas bond.

Appellants contend that each legislative act purportedly authorizing the supplemental salary during his six-year term beginning in January 1965 was unconstitutional, and that the Legislature abolished the county supplement beginning with his new term in January 1971. Those are the questions which we must consider and decide.

Judge Delony was elected on November 5, 1956 as judge of the Thirty-first Judicial Circuit, then consisting of Franklin and Colbert counties, to fill the unexpired term of the judge who had resigned. He was elected for a full six-year term in November 1958, the term beginning on the first Monday after the second Tuesday in January 1959. He was re-elected in November 1964 for a six-year term beginning on the first Monday after the second Tuesday in January 1965.

The Alabama Legislature, in 1965, divided the Thirty-first Judicial Circuit consisting of Colbert County and Franklin County, into separate circuits. Colbert continued as the Thirty-first Circuit. Franklin became the Thirty-fourth Circuit. Act No. 406, Acts of Alabama, Regular Session, 1965, p. 586. By Act No. 156 of the Special Session of the Alabama Legislature of 1966 (Acts of Alabama, Special Session, 1966, p. 182) an additional judgeship for the Thirty-first Judicial Circuit was created. Judge Delony held judgeship no. 1. Judge Leonard I. Burt was appointed to judgeship no. 2 on November 28, 1966 and served under this initial appointment until December 5, 1968, when he began a new term by virtue of his election in November 1968.

Act No. 156 required judge no. 2 to be “elected and qualified as provided in Article VI, sections 158 and 159, of the Constitution of Alabama.” The act further provides: “The judge for the additional judgeship shall be elected thereafter as other circuit judges in this state.”

Judge Delony claims he was entitled to the following supplemental compensation.

PERIOD RATE AUTHORITY AMOUNT

8/16/65 to 12/ 4/68 $1,200 per annum Act. No. 569, Acts of Alabama 1947, p. 402 (Tit. 13, § 177(lb); Code, Recomp., 1958) Act. No. 406, Acts 1965, p. 586 (Tit. 13, § 112, Code, Recomp. 1958) $3,958.06

12/ 5/68 to 1/19/69 1/4 of $12,000 per annum Act. No. 195, Reg. Session, 1967, p. 560 $ 375.00

1/19/69 to 1/18/71 1/4 of $15,000 per annum Act. No. 195, Reg. Session, 1967, p. 560; Act. No. 350, Acts 1967, p. 909 $7,500.00

1/18/71 to 12/31/71 20% of $18,000 per annum Act. No. 1095, Acts 1969, p. 2030; Act. No. 1123, Acts of Alabama, 1969, p. 2082 $3,435.66

$15,268.72

C/edit: Payment by Colbert County 1/31/69 104.16

$15,164.56 ¹

For Period August 16, 1965 to December 4, 1968

Stated succinctly, Judge Delony contended successfully in the trial court that when Colbert County became a one county circuit under the provisions of Act No. 406, Acts of Alabama, 1965, p. 586, effective August 16, 1965, the provisions of Act No. 569, Acts of Alabama, 1947, p. 402, became effective and he, as judge of the one county circuit, became entitled to the $1,200 per annum supplement the 1947 Act required the county to pay. To this argument, the county claims that the so-called Boutwell Amendment (Amendment 92, Constitution of Alabama, 1901) prohibits the operation of the 1947 Act, even though the 1947 Act predates the adoption of the Boutwell Amendment, because the payment of such supplement would be to increase Judge Delony’s salary during his term, which all parties admit was for six years, beginning on the first Monday after the second Tuesday in January, 1965.

In discussing this contention, we are guided to our result by those well-known principles of law which provide that it is our duty to uphold rather than destroy a legislative enactment, unless convinced to the contrary beyond a reasonable doubt. We presume the act is constitutional, until clearly convinced to the contrary. Pruett v. Patton, 288 Ala. 710, 265 So.2d 130, 1972.

In view of the fact that the act which authorized the county supplement was passed in 1947, prior to the time of the adoption of the Boutwell Amendment, the question we must answer is as follows: Did the Legislature violate the Boutwell Amendment in 1965 by creating the one-county circuit, thereby making the judge thereof eligible for the supplemental salary which was authorized by the 1947 Act? We think not. This court had under consideration a similar problem in Pruett v. Patton,, supra. We do not think the Legislature, by creating the Thirty-fourth Judicial Circuit, was using a colorable pretext to evade the Constitution. In fact, Act No. 406, 1965, supra, on its face, shows there were several one county, one judge circuits in the state. In each of these other circuits the judges were entitled to and, for aught appearing, were receiving the supplemental salaries authorized by the 1947 Act. While this court has never construed Amendment 92 insofar as its application to circuit judges is concerned, it would seem fair to interpret Amendment 92 to allow a circuit judge who becomes, by operation of law, entitled to receive a supplemental salary to receive such salary if it is being legally paid to other judges in the state similarly situated. The clear intent of Amendment 92 seems to be that if one "member of a court” becomes constitutionally and legally entitled to an increase in salary then every other member of the court becomes entitled to such increase. We think the intent of Amendment 92 was not to prohibit one circuit judge from receiving the benefits of a salary increase if another circuit judge, similarly situated, was entitled to receive such amount under provisions of law. In determining this, we are mindful that the amounts of county supplements vary from circuit to circuit. For instance, if the judge of a one county circuit in one part of the state receives an increase in salary after the completion of a term, then in that event, every other judge of a one county circuit is entitled to receive the same benefit, if the Legislature has so provided. The converse is also true. If the Legislature should abolish the county supplement in all one county circuits, the decrease in salary would take effect after the expiration of the term of office of the judge whose term first expired.

Summarizing as to this period, in 1947 by general act (Act No. 569) the Legislature directed that a county supplement of $1,200 per year be paid in all one county circuits with two circuit judges where the population of the county was less than 113,000. The act was amended in 1949 and is listed in the 1958 Recompilation as Tit. 13, § 177(lb). This amendment also carries forward the 1947 provision that one county circuits with only one judge shall be paid $1,200 per annum. So when Judge Delony ceased to be a judge of a two county circuit, and became the judge of a single county circuit, he fell into the minimum county supplement of $1,200. When another judgeship was created and the circuit had two judges, the judges were in a different category but received the same sum as a county supplement under § 177(lb).

The trial court did not err in continuing the $1,200 supplement for this period.

For Period December 5, 1968 to January 18, 1971

This period was divided in briefs, but as the same law applies to both periods, we consolidate it into one.

As we understand it, Judge Delony claims that the county supplement during this period should be one-fourth of the amount of his salary paid by the state, under the provisions of Act No. 195, Acts of Alabama 1967, p. 560, which provided in pertinent part:

“Beginning with the next term of office of any circuit judge in any judicial circuit composed of only one county having two circuit judges and a population of not less than 46,500 nor more than 48,000 inhabitants according to the last or any subsequent federal decennial census, the salary of each such circuit judge shall be supplemented by the county composing any such circuit by an amount equal to one-fourth of the salary now or hereafter paid such judge by the State of Alabama. The supplement hereby authorized shall be paid in equal monthly installments out of the general fund in the county treasury, shall be in addition to the salary paid such judges by the state, and shall be in lieu of any and all other salary supplements heretofore authorized.”

It will be noted that this act applied only to Colbert County when passed and that it was passed during the term of Judge Delony (1965-1971). But he contends that when Judge Burt was appointed, Judge Burt became entitled to this new one-fourth supplement, and since Judge Burt was so entitled, he, Judge Delony, was also entitled to the raise even though it came during his term.

Judge Burt is not a party to this proceeding and he is not necessarily bound by what we say about his county supplement, but in view of the argument that Judge Burt was entitled to raises and as a result Judge Delony was so entitled, it is necessary that we consider whether, based upon the information in this record, Judge Burt was entitled to the increased county supplement.

Act No. 156, Acts of Alabama 1966, Special Session, p. 182, created an additional circuit judge for the Thirty-first Judicial Circuit (Colbert County). Section 1 provides:

“There is hereby created an additional judgeship for the Thirty-first Judicial Circuit. An additional judge shall be appointed for the circuit by the Governor, who shall hold office until his successor is elected and qualified as provided in Article VI, Sections 158 and 159, of the Constitution of Alabama. The judge for the additional judgeship shall be elected thereafter as are other circuit judges in this state.”

Judge Burt was appointed by the Governor on November 28, 1966 and under Section 2 of the Act, Judge Delony was designated as Judge No. 1 and Judge Burt as Judge No. 2.

Section 155 of the Constitution fixes the term of circuit judges at six years, and Section 158, mentioned in Section 1 of Act No. 156, provides:

“Vacancies in the office of any of the justices of the supreme court or judges who hold office by election, or chancellors of this state, shall be filled by appointment by the governor. The appointee shall hold his office until the next general election for any state officer held at least six months after the vacancy occurs, and until his successor is elected and qualified; the successor chosen at such election shall hold office for the unexpired term and until his successor is elected and qualified.” (Emphasis supplied)

In McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349, Chief Justice Anderson, speaking for the court, quoted Section 158 of the Constitution, and then said;

“This section deals solely and entirely with vacancies and the method of filling same by restricting the appointee of the Governor, or one elected thereunder, to the filling of a vacancy to the unexpired term, and is not intended to encroach upon a new succeeding term so as to cut it down or to change the commencement and termination thereof so as to throw it out of harmony with the general system and term of all probate judges. This section succeeds section 17 of the Constitution of 1875, which old section provided for filling vacancies in the office there mentioned and who should hold under appointment from the Governor for the remainder of the term, regardless of the date that the office became vacant, and section 158 of the present Constitution changed this clause, not to extend in any manner the term so fixed by section 155, but merely to restrict the time that the appointee should hold under certain conditions and giving the people the right to fill the vacancy by an election in case the vacancy occurred over six months prior to an election. * * * ”

We now apply Section 158 to the new judgeship to which Judge Burt was appointed.

From the moment the Governor signed Act No. 156, which created the new judgeship, there was a vacancy, and an unexpired term to be filled. The unexpired term started that day, August 19, 1966 and continued until January 18, 1971, because Act No. 156 stated the new judge should hold office under Sections 158 and 159 of the Constitution and thereafter be elected as are other circuit judges in this state.

We cannot agree with the contention that Judge Burt served two terms, one appointed and one elective for two years. Both of these periods were part of the “unexpired term” provided for in Section 158 of the Constitution. Judge Burt’s appointive period ended after the general election in 1968. In that election, Judge Burt was elected and he became the “successor” when he qualified. Also, as “the successor chosen at such election” he continued to hold the office “for the unexpired term” which was until after the general election in 1970 when practically all of the circuit judges in Alabama were elected to a new six-year term.

All of Judge Burt’s tenure in office up to January 18, 1971, including his appointive period and the remainder of the unexpired term, was within Judge Delony’s full term of January 17, 1965 to January 18, 1971.

Amendment 92 to the Constitution, the Boutwell Amendment, provides in part;

“. . . (N)or shall the legislature or any county of the state increase or decrease, or authorize the increase or decrease of, the salary, fees or other compensation of any person filling an unexpired term in any such office during the remainder of such term, either before or after the appointment or election of such person to fill the unexpired term

Therefore, under Amendment 92, no Act of the Legislature could increase either Judge Burt’s or Judge Delony’s salary during the full term of Judge Delony; and to demonstrate that this was the Legislature’s intention, Section 4 of Act No. 156 creating the new judgeship provides:

“The compensation of Judge No. 2 shall be paid in the same amount and under the same terms and manner as that of Judge No. 1.”

It follows that the trial court erred in allowing an increase in pay in this period and the judgment of the circuit court must be reversed.

Period from, January 18,1971 to December 31, 1971

Judge Delony claims he is entitled to a supplemental salary of $3,600 annually, payable by the county under the provisions of Act No. 1123, Acts of Alabama, 1969, p. 2082, (Tit. 13, § 177(If), Code, Recomp. 1958) and Act No. 1095, Acts of Alabama, 1969, p. 2030. Act No. 1095, approved September 12, 1969, is carried in the 1958 Recompiled Code as Tit. 13, § 125 (94c) and provides:

“Beginning with the next term of office of the circuit judges of the 31st judicial circuit, the salary of the circuit judges shall be supplemented by the county composing such judicial circuit, and the board of revenue or other like governing body of such county, is hereby authorized, empowered, and directed to supplement the salary paid by the state of Alabama to each circuit judge of the 31st judicial circuit, by an amount equal to 20% of the salary now, or hereafter paid said judges by the State of Alabama. The supplement hereby authorized shall be paid in equal, monthly installments, out of the general fund in the county treasury, and shall be, in addition to the salary paid such judges by the state.”

Act No. 1123, supra, sets the salary of each circuit judge in the state at $18,000 per annum, effective January 18, 1971. Act No. 1123, in addition to providing for a salary of $18,000 per annum for each circuit judge, further provided:

“This act shall not affect the compensation payable to any circuit judge by any county except Colbert County and the 31st judicial circuit as herein provided.

“All general, special or local laws or parts of such laws applicable to such county and the 31st judicial circuit which provide for the payment of any salary or supplement to the salary of the circuit judges of said judicial circuit from the county general fund are hereby repealed.”

Act No. 1123 was approved September 13, 1969, one day after Act No. 1095 was approved.

Judge Delony contends that Act No. 1123, insofar as it attempted to repeal Act No. 1095, was unconstitutional. The county, on the other hand, claims that the Legislature, by passage of Act No. 1123, intended to repeal all laws providing for a supplemental salary to be payable by the county to each circuit judge.

Since Judge Delony began a new term in January, 1971, the county makes no contention that the Boutwell Amendment is applicable. The county strongly contends, however, that Section 2 of Act No. 1123, approved September 13, 1969 [Acts of Alabama, Vol. Ill, pp. 2082-2083] repealed all previous legislative acts making provisions for a supplemental salary to be paid by Colbert County.²

Judge Delony argues that Act No. 1123 is void in that Section 2 of the Act makes it a local act within the meaning of Section 110 of the Constitution.³ We cannot agree. Act No. 1123 was a general law. Its title was “To fix the compensation of circuit judges in Alabama; and to provide the method of payment and effective date thereof.” Section 2 of the Act was germane to this title in that it decreased the salary of the judges of the Thirty-first Judicial Circuit by repealing all laws which provided for the payment of any salary or supplement to the salary of those judges from the county general fund. The decisional law of this state is to the effect that circuit judges are state officers. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473 (1928). The jurisdiction of a circuit judge is coextensive with the state, and they have official authority and power in one county as well as in another. State v. Merrill, supra. The Legislature, having the power to increase or decrease the salary of circuit judges within the limitations imposed by the Constitution, was vested with the sole power to determine the source from which the salary should be paid. Stone v. State ex rel. Courtney, 233 Ala. 239, 171 So. 362 (1936). In Opinion of the Justices, 252 Ala. 543, 41 So.2d 907 (1949), the Justices of this Court were asked to give their opinion on the constitutionality of a proposed Act which created an additional judgeship in the Eleventh Judicial Circuit and also provided for an increase in the salary of the then existing judge by providing that, in addition to the salary provided to be paid circuit judges by the state, judge no. 1 would receive a supplemental salary of $1,800 annually to be paid out of the county treasuries of the counties in the circuit. One of the questions on which the Justices of this Court were requested to give their opinion was whether the bill had to be published in accordance with the requirements of Section 106 of the Constitution, which deals wdth special, private or local laws. Six Justices opined as follows:

“The said bill does not seek to create a new judicial circuit, but proposes to increase the salary of the judge of an existing circuit and to create an additional judge for such circuit. Under the decisions of this court such an act is not a special, private, or local law and, therefore, § 106 of the Constitution has no application. State ex rel. Montgomery v. Merrill, supra; McCoy v. Jefferson County, 232 Ala. 651, 169 So. 304; Stone v. State ex rel. Courtney, 233 Ala. 239, 171 So. 362.”

The provisions of Act No. 1123, repealing all general, special or local laws applicable to the Thirty-first Judicial Circuit which provided for the county to supplement the salary of the circuit judges, was a general law and did not violate Section 110 of the Constitution. Since Judge Delony’s term expired concurrent with the effective date of Act No. 1123, there was no decrease of his salary during his term. Amendment 92 of the Constitution, therefore, has no application.

In view of what we have said, the judgment of the trial court is due to be reversed and rendered insofar as it adjudged that Judge Delony was entitled to an increased supplement between December 5, 1968 to January 18, 1971 and reversed and rendered insofar as it adjudged that Judge Delony was entitled to any county supplement after the effective date of Act No. 1123. The judgment is affirmed as to the county supplement due from August 16, 1965 to December 4, 1968.

Affirmed in part, reversed and rendered in part.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH, McCALL and SOMERVILLE, JJ., concur. MADDOX, J., dissents. HEFLIN, C. J., recused himself.

1 . The parties agreed that the amount was $15,164.50, instead of $15,164.56 — a small six-eent difference.

2 . Act No. 1123 was introduced in the Senate on June 19, 1969 as Senate Bill 518, and was assigned to the Senate Finance and Taxation Committee. Its title read: “To fix the compensation of circuit judges in Alabama; and to provide the method of payment and effective date thereof.” Senate Journal, Reg.Sess., 1969, p. 477. Hereinafter, all references to the Senate and House Journals will be by abbreviation and will list the page number of such journals only.

The Senate Finance and Taxation Committee returned the Bill to the Senate with a favorable report, with substitute. It was read a second time and placed on the calendar (S.J., p. 1270). Section 2 of the Senate Finance and Taxation Committee substitute for Senate Bill 518 read as follows:

“This Act shall not affect the compensation payable to any circuit judge by any county.”

The Finance and Taxation Committee substitute was adopted. Twenty voted for, two against (one of which was the senator representing the senatorial district which included Colbert County), and two abstained. (S.J., pp. 1497, 1498). The Bill was sent to the House and received. (H.J., p. 1874). It was assigned to the Judiciary Committee of the House and was given a favorable report (H.J., p. 2357). When Senate Bill 518 was taken up on the calendar in the House, the state representative from Colbert County offered an amendment as follows :

“Amend Section 2 of Senate Bill 518 by striking Section 2 thereof and substitute therefor the following:

“ ‘This act shall not affect the compensation payable to any circuit judge by any county except Colbert County and the 31st judicial circuit as herein provide, (sic)

“ ‘All general, special or local laws or parts of such laws applicable to such county and the 31st judicial circuit which provide for the payment of any salary or supjjlement to the salary of the circuit judges of said judicial circuit from the county general fund are hereby repealed.’

“And the amendment was adopted.

“Teas 66; Nays 0.”

The amendment was adopted (H.J., p. 2886). The Bill, as amended, was adopted (H.J., p. 2886).

The Senate non-coneurred in the House Amendment and requested a Committee on Conference (S.J., pp. 2451, 2452) and returned it to the House (H.J., p. 2945). A Committee on Conference was named by both houses (H.J., p. 2945, S.J., p. 2600). The Committee on Conference recommended that Senate Bill 518 be amended to add a severability clause as follows:

“The parts of this Act are severable. If any part of this Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.”

The House adopted the Conference Committee report (S.J., p. 2683). The Senate concurred in and adopted the Conference Committee report (H.J., p. 3181). The Lieutenant Governor signed the Bill (S.J., pp. 2719, 2721) and the Speaker of the House signed the Bill (H.J., p. 3307) and it was delivered to the Governor on September 4, 1969 at 5 :30 p. m. (S.J., p. 3006). The Governor approved the Bill on September 13, 1969 at 4:02 p. m., Acts, 1969, p. 2082.

3 “A general law within the meaning of this article is a law which applies to the whole state; a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole; a special or private law within the meaning of this article is one which applies to an individual, association, or corporation.”