Tubman v. Berwager

Henderson, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Carroll County sustaining a demurrer to a petition for mandamus and dismissing the petition. Vincent A. Tubman served as a Trial Magistrate in Carroll County for about 8 years prior to May, 1947, under successive appointments by the governor for two year terms. He *195 was reappointed by Governor Lane for the term beginning May 5, 1947, and the appointment was duly confirmed by the Senate. His salary during his first two terms was $1,200 a year, during his third term, $1,500 a year, during his fourth term, $1,920 a year. On April 11, 1947, the Board of County Commissioners adopted a resolution reducing the salary of the office to $1,200 a year, beginning May 5, 1947. Tubman duly assumed the office on May 9, 1947, and on June 2, 1947, presented a bill for $160 for his services for the month of May. The appellees declined to pay him more than the $100 a month established by their resolution. Tubman presented a similar bill for his services for the month of June, and thereafter brought this proceeding to test the validity of the attempted reduction. No constitutional question is presented, since the reduction was not designed to take effect during a term of office. Woefel v. State, 177 Md. 494, 9 A. 2d 826; Levin v. Hewes, 118 Md. 624, 642, 86 A. 233. Nor is it contended that acceptance of the office or a rédueed salary would bar recovery, if the reduction was illegal. County Com’rs of Anne Arundel County v. Goodman, 172 Md. 559, 192 A. 325. The decision must turn upon the scope of the authority to fix salaries delegated to the County Commissioners. Section 100 of art. 52 of the Code, first enacted by ch. 720 of the Acts of 1939, is a comprehensive section establishing the number and salaries of the trial magistrates and the places where they shall sit in the several counties. The sub-section applicable to Carroll County originally provided, and still provides, for two trial magistrates, one of whom, sitting in Manchester, Mt. Airy, Taneytown, Union Bridge and Sykesville once a week, “shall receive an annual salary of $1,200.00”. Section 103 of art. 52 provides: “(Minimum salaries only.) All salaries herein provided shall be considered minimum salaries, * * * and may be increased at any ti.me by the County . Commissioners from county funds * * *. The annual salaries of trial mag *196 istrates *■ - * • * shall be- paid in equal monthly-amounts * * *.” ■ Chapter 720 of the Acts of 1939 was enacted pursuant to recommendations made by a “Commission on. the Inferior Courts”, appointed by Governor O’Conor. In its report dated February 11, 1939, the commission said: “It is provided in the bill that the suggested salaries are minimum amounts, and authority is conferred upon the County Commissioners of the several counties to increase the salaries, from county funds, as the work of the magistrates may increase or as general salary levels may rise or as their own best judgment may dictate.” The appellant argues that the use of the words “may be increased” negatives any implication of a power to decrease. But the words quoted must be read in connection with the preceding sentence: “salaries herein provided shall be considered minimum salaries”, which obviously refers to the figures set in section 100. We think that authority to increase above the minimum specified in section 100 fairly implies an authority to omit, from time to time, a prior increase. It is not contended that the statute does not authorize a repeated exercise of the power to increase prior to the beginning of each new term. In the absence of restrictive language, each exercise of the power to increase, or not to increase, is limited only by the statutory minimum which is the point of reference. If the appellant’s argument were accepted, the effect would be that the present minimum, or point of reference, would be $1,920 a year, and not $1,200 a year as the Statute provides. It is not without significance that although the minimum salaries of trial magistrates in other counties have frequently been revised upward, by amendments to section 100, (see chapters 359, 477 and 855 of the Acts of 1947, for example), the sub-section relating to Carroll County has never been revised. As a matter of fact, the Legislature passed a bill in 1947, H. B. 497, • abolishing the office of the trial magistrate sitting at the five towns above mentioned in Carroll County, and imposing *197 those duties upon the magistrate sitting at Westminster. The Governor vetoed the bill, on the ground that it was passed as an emergency measure, in violation of section 2, art. XVI of the Constitution. (Acts of 1947, p. 2259). The bill in question fixed the minimum salary of the Magistrate sitting at Westminster at $3,000 in place of the minimum of $2,400 previously provided. In'effect, the Legislature valued the services of the other magistrate at only $600. We have found no case directly in point. The appellant relies strongly upon the case of Carroll County Com’rs v. Shriver, 146 Md. 412, 126 A. 71. In that case the Legislature had passed an Act providing for an exemption from taxation of manufacturers’ tools and machinery in any county adopting the provisions of the Act by resolution of the County Commissioners. It was held that once the local option had been exercised, the exemption became the law of that county, and could not be repealed except by further legislative action. We think the case is readily distinguishable. The appellant also relies upon Cochnower v. United States, 248 U. S. 405, 39 S. Ct. 137, 63 L. Ed. 328, Id., 249 U. S. 588, 39 S. Ct. 387, 63 L. Ed. 790. There an Act of Congress provided that the Secretary of the Treasury might “increase and fix the compensation of inspectors of customs * * *, not to exceed in any case the rate of six dollars per diem.” Act March 4, 1909, § 2, 35 Stat. 1065. At the time the Act took effect, Cochnower was receiving $5 per diem, and the Secretary thereafter reduced him to $4 per diem. It was held that the Act did not authorize a reduction below the amount he was receiving when the law took effect, and directed the Court of Claims to enter judgment for the difference. In Ryan v. United States, 260 U. S. 90, 43 S. Ct. 34, 67 L. Ed. 147, it was held that the Act did not require Ryan’s per diem of $4 to be raised to $5. These cases are likewise distinguishable. The court below, in a well considered opinion, relied upon the case of Board of Commissioners of Allen County *198 v. Chapman, 22 Ind. App. 60, 53 N. E. 187, 189. There an Act of the Legislature fixed the salary of a township assessor at “not less than one thousand dollars nor more than fifteen hundred dollars per annum, which amount is to be determined by the Board of County Commissioners of the county in which said township is situate.” Acts 1891, p. 349, c. 142. The Board fixed the salary for one year at $1,300, payable monthly. For each of the ensuing three years, the Board fixed the salary at $1,100. The court said: “The power possessed by the legislature was, within prescribed limits, delegated to the board of commissioners, to determine what compensation should be paid to the appellee. That authority was not exhausted by the first or second exercise of it. It could be exercised at least once a year, as it was exercised by the appellant.” The reduction was sustained, the court pointing out that a change in future compensation may be made even during the term of an incumbent, unless restrained by the Constitution. In Rivers v. Hailey, 199 Ga. 38, 33 S. E. 2d 310, the Supreme Court of Georgia held that where authority was granted to county commissioners to fix the salary of a deputy marshal at not less than $150 per month, and the Board first increased and subsequently decreased the salary, the reduction was valid since the reduced salary was above the statutory minimum. See also Buckbee v. Board of Education, 115 App. Div. 366, 100 N. Y. S. 943, and notes 70 A. L. R. 1050; 145 A. L. R. 412. The appellant argues that if the Board has the power to reduce a salary below a figure previously set, they could, from improper motives, make it difficult or impossible for an appointee of the Governor, duly confirmed by the Senate, to accept the office. If such an appointee declines the office, the Governor has, of course, power to fill the vacancy forthwith. Johnson v. Duke, 180 Md. 434, 436, 24 A. 2d 304. We cannot assume that the local authorities were actuated by any other motive than to fix a salary commensurate with the services to be performed, or that they failed to balance the desirability *199 of paying adequate salaries, to attract competent officials, against the cost to the taxpayers. If the power is capable of abuse, as contended, the remedy lies with the legislature. Undoubtedly, one of the primary objects in setting up the Trial Magistrate System was to concentrate the trial function in the hands of officers compensated by salaries paid by the county, rather than by fees of the office, which are now payable to the county. As applied to a new term of office, we find nothing in the statute that would compel the conclusion that the County Commissioners cannot reduce salaries paid in a previous term to the statutory minimum fixed by section 100. Order affirmed, with costs. Marbury, C. J., and Markell, J., dissent.