Taylor v. Auditor General

103 N.W.2d 769, 360 Mich. 146, 1960 Mich. LEXIS 367

• Court: Michigan Supreme Court
• Decided: June 6, 1960
• Docket: Docket 24, Calendar 48,271
• Status: Published

Opinions

Smith, J.

Here the plaintiff, formerly judge of the superior court of Grand Rapids, has sought, from the court of claims, a declaration of rights.

His declaration originally claimed damages in the sum of $27,228.46, plus interest. This sum was a total of various salary items allegedly due to, and wrongfully withheld from, plaintiff. As to them, he asserted, he had a vested right by virtue of his performance of the duties of judge of the superior court.

The defendant moved to dismiss upon 4 grounds: That the declaration did not state a cause of action; that the cause of action was barred by virtue of our order entered in a former proceeding brought by this plaintiff against the auditor general (Taylor v. Auditor General, 342 Mich 265); and, finally, that some portions of the claim were outlawed by the statute of limitations, others by failure to institute action thereon or file notice of intent so to do within 1 year of their accrual.

. Plaintiff thereafter struck the ad damnum clause from the declaration and inserted, in lieu thereof, a prayer for a declaration of rights under the statute.¹

Defendant was thereupon permitted to add to its motion to dismiss the additional ground that “the court of claims does not have jurisdiction for a declaration of rights,” which ground constituted the basis of the trial court’s grant of defendant’s motion to dismiss. This issue, then, the jurisdiction of the court of claims, confronts us at the threshold of the case.

The court of claims is a court of legislative creation. It came about in this way: the Constitution of 1908, in article 6, § 20, provided that the board of State auditors “shall examine and adjust all claims against the State not otherwise provided for by general law.” In 1929, the State administrative board, which had been created in 1921,² 34*was “vested with discretionary power and authority to hear, consider and determine claims presented to said board against the State of Michigan, arising from or by reason of negligence, malfeasance or misfeasance of any State officer, employee, * * * and to allow same and order payment thereof.”

The court of claims act was passed subsequently.⁴ This act conferred upon the newly-created court of claims exclusive jurisdiction “over claims and demands against the State or any of its departments, commissions, boards, institutions, arms or agencies.”⁵

“In short,” as we held in Manion v. State Highway Commissioner, 303 Mich 1, 20: “a ‘court of claims’ was substituted by the legislature for the ‘board of State auditors’ and the ‘State administrative board’ for the purpose of hearing and determining ‘all claims and demands, liquidated and unliquidated, ex contractu and ex delicto against the State.’ ”

The court thus created was, as we have held, a court of limited jurisdiction. Farrell v. Unemployment Compensation Commission, 317 Mich 676. It derives its powers only from the legislative act of its creation and does not possess the broad and inherent powers of a constitutional court of general jurisdiction. Manion v. State Highway Commissioner, supra.

What, then, is its jurisdiction, as expressed in the act of its creation? We turn to section 8 of the statute:

“The court shall have power and jurisdiction:

“1. To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the State and any of its departments, commissions, boards, institutions, arms or agencies.”

The jurisdiction thus granted is narrow and limited, substituting, merely, a “court” of claims for the superseded claims jurisdiction of the earlier boards. The Michigan statute under which a declaration of rights is sought employs the terminology of the uniform act in its use of the term “courts of record” in authorizing the rendition of declaratory judgments.⁶ But analysis of the entire act makes it clear that the statute does not authorize the rendition of declaratory judgments by any and all “courts of record.” We do not, of course, gather the intent of a statute from some isolated clause thereof, or words of general import, but from the act as a whole. Those courts of record that are authorized to render declaratory judgments are indicated in section 2 of the act,⁷ wherein it is provided that such declaration of rights may be obtained “by means of a petition on either the law or the equity side of the court.” The court of claims has no “equity side” as that term is employed in respect of the jurisdiction of Michigan courts, it being, as we have pointed out, a legislative court of limited jurisdiction to which has been assigned the hearing of claims formerly heard by administrative boards.

Our conclusions are fortified by those of the courts of other jurisdictions that have considered the problem. We note that just as our declaratory judgments statute confers the power to render declara: tory judgments upon our courts of general jurisdiction, that is, courts having both a “law side” and an “equity side,” so the New York declaratory judgments act vests such power in its courts of similar general jurisdiction, namely, the supreme courts of that State. Consonant herewith, it was stated in General Mutual Insurance Co. v. Coyle, 207 Misc 362, 364 (136 NYS2d 43, 45): “There can be no such action [declaratory judgment action] instituted in the court of claims.” Since the court of claims does not have jurisdiction to act, there is no need to consider the additional issues presented to it, though our failure to discuss the applicability of the theory of res judicata, or collateral estoppel, or any other doctrine intended to prevent the bringing of repetitive actions over what is essentially the same cause of action, should not be interpreted as our sanction of what has been here done. See Restatement, Judgments, § 1, and §§41 to 72, inclusive.

The opinion of Mr. Justice Black, we note in closing, applies a theory plaintiff expressly disavowed to a constitutional argument plaintiff did not make to invest the court of claims with a jurisdiction it does not have. All of this is directed to the position that public officials’ constitutional invulnerability to changes in salaries during their terms of office somehow or other offends the equal protection clause of the Constitution. Such conclusion is totally unsupported by applicable- precedent and completely oblivious to the reasons for the adoption of the constitutional provision respecting salary stability.

We are constrained to observe that it is with considerable reluctance that we enter upon the discussion of any legal issue so intimately integrated with our own welfare as the principles applicable to the increase or reduction of judges’ salaries. We share the feeling of the United States supreme court expressed in Evans v. Gore, 253 US 245 (40 S Ct 550, 64 L ed 887, 11 ALR 519), wherein the court prefaced its holding, in a case involving taxation of judges’ salaries, with these words: “Because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us. * * * But jurisdiction of the present case cannnot be declined or renounced.” Here, however, the constitutional question has been intruded with the case wholly needlessly. The court of claims has no jurisdiction to render the declaratory judgment prayed, and, if it had, the most serious questions would arise as to how many times this plaintiff may litigate what is essentially the same question, namely, Ms salary claims.

We do not rule upon the position that the superior court of Grand Rapids is a circuit court and the judge thereof a circuit judge. The point was neither relied upon nor briefed by either party to this litigation. In fact we find in plaintiff’s brief in this case, and in his prior case seeking salary adjustment, a repudiation and disavowal of such argument,⁸ for reasons not obscure. The point had been squarely ruled upon and properly rejected in Dunham v. Tilma, 191 Mich 688.⁹

The plaintiff, then, by his own admission, is not, and does not claim to be, a circuit judge. In this posture of the case we did not consider, nor did any party brief to us, the question of whether or not plaintiff’s salary deficiency if a circuit judge, and as a circuit judge, which he was not, when compared with the salary of a “nearby” circuit judge, involved either a denial of plaintiff’s right to equal protection under the Fourteenth Amendment of the Constitution of the United States or the Constitution of this State. Even had the question been before us, however, it would not have been ruled upon under the view we have taken as to the jurisdiction of the court of claims, for few principles of judicial interpretation are more firmly grounded than this: a court does not grapple with a constitutional issue except as a last resort.¹⁰ Yet, as we noted, since such constitutional issue has been intruded into the case, however gratuitously, further discussion is in order lest our silence he construed as acquiescence in the propositions asserted with respect thereto.

The adoption of the original constitutional clauses respecting changes in salaries of public officials during their terms of office resulted from interference with the independence of the judiciary through the power of the purse during Revolutionary times. This was one of the principal causes of complaint in this era.¹¹ The Declaration of Independence itself, setting forth the tyrannies of the English king, asserted that: “He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” As a result most State constitutions, as well as the Federal, contain provisions seeking to protect judicial, or, in some cases, all public officials’ salaries from alteration, in one form or another, by the legislatures.

Thus we have, in this State, a constitutional provision forbidding the increase, except for “circuit judges,” or the decrease, of the salaries of public officers after their election or appointment.¹² Such a provision must inevitably result, in event of salary increases, in subsequent salary differences between judges, other than circuit judges, elected for non-simultaneous terms. There is no doubt, then, that an actual inequality as to salary may exist between those occupying the same office and doing the same work. But is this an unconstitutional inequality, that is to say, an inequality offensive to constitutional principles 1 That will depend upon the reason and purpose of the provision' creating the inequality. Here the constitutional draftsmen must weigh the actual inequality conceded-to exist at times against the evils conceivably attendant upon a lack of such provision. The purpose of such provisions, according to Alexander Hamilton,¹³ was to restrict the power of the legislature, so that it could “neither weaken [the public officer’s] fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.” Whether such provisions outweigh considerations of arguable injustice to public officials elected for long terms has been a matter of debate, as has the extent or severity of the clause forbidding change.¹⁴

But the debate, for us, has been resolved. The constitutional provision against raising or lowering salaries is, as we have noted, a common feature of many State constitutions, including that of our State, as well as the Federal. These provisions have been a part of the several constitutions since earliest times. They have been construed again and again, as reference to any standard digest will disclose. The weakness of the novel position asserted is best demonstrated by the fact that he who asserts it, and who thus has the burden of establishing it, does not cite to us a single applicable case wherein it has been held that judges performing like functions must receive the same salaries, even though the receipt thereof must involve an increase during the term of office, in the teeth of a constitutional provision to the contrary.

This is not to say that the Constitution may not, indeed, should not, be changed. But once more we point out that we are not the body .to make such change. As we said in Stoliker v. Board of State Canvassers, 359 Mich 65, 76, 77: “We are not a constitutional convention. * * * The problem we face is not how a wise Constitution would have been phrased, but whether the particular Constitution before us will be held inviolate.”

The order below is affirmed. No costs, a public question being involved.

Dethmers, C. J., and Carr, Edwards, and Souris, JJ., concurred with Smith, J.

1 OL 1948, § 691.501 et seq. (Stat Ann § 27.501 et seq.).

2 PA 1921, No 2 (CL 1948, §17.1 et seq. [Stat Ann 1952 Rev § 3.261 et seg.]).

4 CL 1948, § 691.101 et seq. (Stat Ann 1959 Cum Supp § 27.3548 [1] et seq.).

5 CL 1948, § 691.108 (Stat Ann 1959 Cum Supp § 27.3548 [8]).

6 Compare CL 1948, § 691.501 (Stat Ann § 27.501), with uniform declaratory judgments aet, § 1.

7 CL 1948, § 691.502 (Stat Ann § 27.502).

8 In referring to the case of Dunham v. Tilma, 191 Mich 688, the plaintiff speaks as follows: “The contention of Judge Dunham was that the judge of the superior court did come within the classification of a eireuit judge by reason of the jurisdiction given to the court. We make no sueh claim and never have.”

The emphasis is not that of this Court but of the plaintiff.

The position thus taken is consistent with that taken in plaintiff’s former appearance before this Court respecting his salary controversy. He said at that time:

“Plaintiff submits that his right to be paid a salary in the same amount as is provided for circuit judges is not to be determined upon the question of whether the judge of the superior court is or is not a circuit judge. Plaintiff does not contend that he is a circuit judge and, therefore, that he falls within the exception found in the Constitution.”

9 See, also, Jones v. Circuit Judge, 35 Mich 494, Heath v. Circuit Judge, 37 Mich 372, and Allen v. Circuit Judge, 37 Mich 474, the latter opinion by Mr. Justice Cooley.

10 United States v. Lovett, 328 US 303 (66 S Ct 1073, 90 L ed 1252), Frankfurter, J., concurring at page 320 in these words:

“But the most fundamental principle of constitutional adjudication is not to face constitutional questions but to avoid them, if at all possible. And so the 'Court developed, for its own governance in the' cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.’ Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 US 288, 341, at 346 (56 S Ct 466, 80 L ed 688). That a pieee of legislation under scrutiny may be widely unpopular is as irrelevant to the observance of these rules for abstention from avoidable adjudications as that it is widely popular. Some of these rules may well appear over-refined or evasive to the laity. But they have the support not only of the profoundest wisdom. They have been vindicated, in conspicuous instances of disregard, by the most painful lessons of our constitutional history.”

11 See Dickerson, American Colonial Government, 1696-1765 (1912), pp 195-209.

12 Mich Const (1908), art 16, §3.

13 The Federalist, No 73, at 457 (Lodge ed 1888).

14 The Constitution of the United States makes a distinction between the salary of the president, which can be neither increased nor diminished (US Const, art 2, § 1, cl 7), and those of the Federal judges, which cannot be diminished, probably, again according to Hamilton (The Federalist, No 79, at 492 [Lodge ed 1888]), because of “the difference in duration of the respective offices.” Hamilton used those words in explanation of the restriction as to judges being in diminution only (Id. at 491, 492) :

“It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century beeome penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted [US Const, art 3, § 1] combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with whieh any particular judge comes into office, in respect to him.”