Board of Comm. of St. Joseph County v. Crowe

ON REHEARING. It is pressed with vigor on rehearing, by appellants, and especially so in the brief filed by the Attorney-General as Amicus Curiae, that chapter 125 of the Act of 1911, is 2. invalidated by § 2, Art. 15, of the Constitution of Indiana, insofar as the salary for 1930 is concerned, as the above section of the Constitution forbids the increase in the salary of any officer during the term for which such officer was elected.

Chapter 125, Acts 1911, provides that in counties having a population of more than 150,000 according to the last preceding United States Census, the salary of the clerk of the circuit court shall be thirty-one thousand dollars ($31,000.00) . . . In April, 1930, the census of the United States was filed, which showed St. Joseph County to have a population in excess of 150,000. Appellee insists that after the census was filed showing St. Joseph County with a population in excess of 150,000 he was entitled to the salary as fixed by chapter 125, Acts 1911,supra. As stated above, appellants contend that by the above constitutional provision such increase is prohibited.

This court said in Crowe v. Board of Com'rs of St. JosephCounty et al. (1930), 210 Ind. 404, 408, 3 N.E.2d 76 (which was a companion case on the first appeal):

"There is no merit in the contention that an increase in the salary of an officer during his term is involved. The salary was fixed before he was elected. The amount he was to receive from time to time was made to depend upon the population of the county. It is as though the statute in existence when the officer was elected had provided that he should receive $1,000 the first year and $2,000 the second year of his term. In the statute under consideration the Legislature chose to make the amount of salary depend upon population shown by the United States census. It might continue during the latter part of the term the same as before the census. It might be more if the population increased. It might be less if it decreased."

In State ex rel. Harvey v. Linville et al. (1927), 318 Mo. 698, 300 S.W. 1066, it was held that an increase of officer's salary, under a statute in force at the time of his election, conditioned upon an increase in population, does not violate a constitutional provision prohibiting increase of salary during term of office since the salary is fixed by law which permits ascertainment of amount of salary at subsequent periods.

In Board of Commissioners, etc. v. Williams (1913),38 Okla. 738, 743, 135 P. 420, the court said:

"The foregoing provision of the Constitution, prohibiting a change of salary of an officer during his term of office, does not require that the salary of an officer shall be uniform throughout his term. It requires only that there shall be no difference in his salary during the different parts of his term, except such as result from the operation of a law enacted prior to his election or appointment. A statute enacted before an officer is elected might provide that his compensation should consist of the fees of his office. Under such statute it is entirely probable that the fees of the first year of a two-year term would greatly exceed those of the second year, or vice versa, yet such a difference in the salary of such respective years would not constitute a change in the salary of his office, in violation of the foregoing provision of the Constitution. So, in the instant case, the officer's salary is made to depend upon the population of his county at biennial periods, and the fact that the census at one of the periods occurring after his term began exceeds the population as shown by the preceding census, and thereby operated to give the officer a greater compensation for the latter period of his term than for the first period, does not constitute a change of salary by operation of any law enacted during his term, but is a difference in salary, resulting from the operation of a statute enacted before his term began. The same reasoning and conclusion apply to the amount to be allowed for clerk hire."

In Puterbaugh v. Wadham et al. (1912), 162 Calif. 611, 616,123 P. 804, which in all its essential facts presented the identical question as is here presented, the court said:

"Section 9 of article 11 is an inhibition directed to the Legislature because it applies not only to attempted increases of salaries but to efforts to extend terms of office. The latter part of the section is unquestionably a limitation upon legislative power, and the former from its association should be similarly construed. We think the section could have no application to the change in salary due to the passing of a city, not by legislative act, but by increased population, from one class to another — not a legislative but an automatic change. When petitioner was elected justice of the peace, the statute established his salary at $2,000 a year because of the population of San Diego; but the same statute fixed the salary of a justice of the peace in a city of the second class, and the evolution of the city into that class did not increase his salary as such — it merely placed him in a new class in which he was entitled to a certain salary which happened to be in excess of that payable to him when he took the office. The possibility of a change in his status when the city should grow into another class must have been in the contemplation of the officer and of the people who elected him. That this change would operate to increase his salary must also have been within their contemplation, and section 9 of article 11 of the Constitution, which was designed to protect taxpayers from legislative interference with their rights by increasing the compensation paid to their elected officers without consent of the electorate, would have no application to such a case as this."

Yuma County v. Sturges (1914), 15 Ariz. 538, 140 P. 504, was a case where the county officer's salary was by statute determined by census and population. The same facts and statutory provisions as well as the constitutional provision was presented in that case as we have here. The court, after quoting from the Puterbaugh case, supra, said (p. 543):

"Under the facts before us the reasoning in the Puterbaugh case is especially forcible. Under the classification in force when appellee went into office, Yuma county was a county of the first class, with an assessed valuation less than $9,000,000; his compensation was therefore fixed at $2,200 per annum. In August, 1913, Yuma county, while still remaining a county of the first class, nevertheless its equalized assessed valuation became more than $9,000,000, and appellee's compensation was therefore fixed at $2,500 per annum. Not by virtue of any subsequent legislative action, but solely by the automatic operation of the very law in effect at the beginning of the term, and which law definitely prescribed and fixed the compensation incident to the office, the amount thereof being graded according to the determination of an extraneous fact, to wit, the fact of the equalized assessed valuation.

"Let us compare the statute of 1901 with a statute supposed. If the statute existing when appellee went into office made provision that the term of his office shall begin on the 14th day of February, 1912, and end on the 31st day of December, 1914, and that such officer shall receive a salary of $2,200 for the first year of the term, and thereafter during the remainder of said term the officer shall receive a salary at the rate of $2,500 per annum, and that the salary of such officer so provided shall be paid monthly, one could not be persuaded that the provisions of such a statute are within the inhibition of the Constitution prohibiting the compensation of a public officer from being increased during his term of office. In this instance, also, the amount would be graded according to the determination of an extraneous fact, to wit, the fact of one year of the term having expired. The law as it is and the one supposed, though differing in the medium of expression do not differ in their application. The two statutes differ in words, but not in the effect of the words.

"The constitutional inhibition has no application here, and the judgment of the lower court awarding appellee compensation for the month of September, 1913, in the sum of $208.33, being at the rate of $2,500 per annum, is correct."

To the same effect is the case of Board of Commissioners, etc. v. Mathews (1931), 147 Okla. 296, 296 P. 481.

Other cases to like effect might be cited in support of the above view, but we think the above cases are sufficient to show the holding of courts in other jurisdictions.

As we view this question, the salary of the county clerk or the auditor of St. Joseph County was not changed during the term within the meaning of the constitutional inhibition. The statute fixing the salary of the above officers was passed before appellees were elected. At that time the salary was fixed and determined. If the census taken by the Government showed an advancement into a higher class the salary of the county officers would be a certain amount. If the census showed a decrease, such as would place St. Joseph County in a lower class, the salary would be decreased to a different amount. We hold that § 125, Acts 1911, does not offend the constitutional provisions against increase of salary during the term of office.

Rehearing denied.

This opinion controls and applies to the following cases which present substantially the same question: Board of Commissioners,etc. v. Nevins et al., No. 26,954; Board of Commissioners,etc. v. Nevins, No. 26,974; Board of Commissioners et al. v.Crowe, No. 26,975.