Comptroller of the State v. Klein

Gray, J., by special assignment, delivered the opinion of the Court. This appeal presents for consideration the construction of Article 3, Section 35, of the Constitution of Maryland. It involves the right of a public officer, who was appointed to fill out an unexpired term, to receive an increase in the salary of that office provided for after the appointment of his predecessor but before the present incumbent was appointed. While this Section of the Constitution has heretofore received interpretation by this Court, 1 the specific question now presented comes for determination for the first time.

The facts are simple and undisputed. On June 1, 1949, ⁴²⁹ Mr. William Mahaney was appointed Chairman of the Employment Security Board for a six-year term expiring on June 1, 1955. At that time his salary was fixed at $7,500. Thereafter, by Chapter 617 of the Acts of 1951, the power to fix the salary of the Chairman was vested in the Standard Salary Board.

In June, 1951, this Board fixed the salary of the Chairman at $10,000. However, Mr. Mahaney continued to receive his original salary until his resignation on July 20, 1953. After Mr. Mahaney resigned, the Governor appointed Daniel E. Klein, the appellee, to fill the remainder of Mr. Mahaney’s unexpired six-year term, effective on or about November 2, 1953. Thereafter and until his resignation on April 15, 1955, the appellee received as his salary $10,000 per annum, which included the increase of June, 1951.

During the course of a routine audit of the fiscal affairs of the Employment Security Board, the propriety of paying the appellee the increased salary was raised. In due course, the Comptroller of the State of Maryland called upon the appellee to return the funds paid to him by way of salary in excess of the rate of $7,500, which was the salary established by law when his predecessor, Mr. Mahaney, was originally appointed for the six-year term. Thereupon the appellee brought suit in the Circuit Court of Baltimore City, seeking a declaratory decree establishing his right to the funds in question. These proceedings resulted in a decree of that Court establishing the right of the appellee to the full salary actually received by him.

From this decree, the Comptroller has taken the present appeal. Some collateral issues were originally raised in the nisi prius court, but they seem to have been abandoned there and were not argued or otherwise urged in this Court. Counsel for both sides concede that the sole question for determination in this appeal is whether or not the appellee, while serving the unexpired term to which Mr. Mahaney had been originally appointed, was prohibited from accepting the increase in salary by the concluding clause of Section 35, Article 3, of the Constitution. The relevant clause reads: “nor shall the salary or compensation of any public officer be increased or diminished during his term of office.” The appellant con ⁴³⁰ tends that this clause should be interpreted as though it reads “Nor shall the salary or compensation with respect to any public office be increased or diminished during any term thereof.” The appellee contends that the clause should be-construed as though it read as follows: “Nor shall the salary or compensation of any public officer be increased or diminished during his term of office, while he shall be an incumbent thereof.” It is apparent that the question raised for determination is a narrow one, but it has given rise to a wide difference of opinion and is not free from difficulty.

Contrary interpretations have been reached by different attorneys general. 2 In the pending case the full salary was first paid to the appellee, and now the State demands a refund of the increase. An examination of the authorities in other states discloses a wide difference of opinion among them. Some of this difference stems from the fact that most of the State Constitutions contain a clause prohibiting certain increases or decreases of compensation, or both, but the phraseology in the several instruments is quite different. Some of the decisions adopt a construction which the Court concerned deems to effectuate the general object of the prohibition while others result from a study and application of the phrase involved.

Generally, the decisions fall into two categories: (a) Those which hold that the prohibition relates to the term and therefore prevents any person serving during that term, whether an original incumbent or one filling an unexpired term, from receiving an increase or being subjected to a decrease in compensation; and (b) Those which hold that the prohibition is intended to relate to the individual who may for the time being hold the particular office. This group of cases generally holds that the prohibition affects only the incumbent who may occupy the office at the time of the increase or diminution. The appellant relies upon Wyrick v. Ritzville, 16 Wash. 2d 36 , 132 P. 2d 737 , 144 A. L. R. 681, which relates to ⁴³¹ municipal officials, one of whom sought a per diem which had been authorized before he accepted appointment to an unexpired term. As pointed out by the appellant, Article- II, Section 25 of the Washington Constitution is substantially identical with Article III, Section 35 of the Maryland Constitution.

However, the Court appears to have applied Article XI, Section 8 of the Washington Constitution which provided that, “The salary of any county, city, town or municipal officers shall not be increased or decreased after his election or during his term of office * * This provision of the Washington Constitution is materially different from ours. In view of this difference and of the reasoning of the Court we do not regard the precedent as persuasive. Somewhat similar decisions were rendered in the following cases: Bosworth v. Ellison, 148 Ky. 708 (1912), 147 S. W. 400 . (This case had to do with an increase of a jailer’s compensation for keeping and feeding prisoners, and the Court reached a conclusion contrary to that of this Court in Bowman v. Harford County, 166 Md. 296 .) Clark v. Frohmiller, 53 Ariz. 286 (1939), 88 P. 2d 542 , involves the right of a judge elected to fill an unexpired term to an increase provided before his election.

The constitutional limitation is not dissimilar to ours. The Court reviewed various decisions on both sides of the question and held that the increase was prohibited. In Foreman v. People, 209 Ill. 567 (1904), 71 N. E. 35 , the Court construed three quite different constitutional provisions to mean the same thing and that all prohibit any increase during the term. In Wilson v. Shaw, 194 Iowa 28 (1922), 188 N. W. 940 , the Court was dealing with a constitutional limitation affecting compensation “during the term for which he shall have been elected.” By a divided Court, increased compensation to one filling an unexpired term was denied.

The case of State v. Yelle, 12 Wash. 2d 434 (1942), 121 P. 2d 948 , cited by the appellant, is not in point, for it has to do with the question of whether an incumbent, re-elected for a new term, may be subjected to a decrease effected before his re-election; but see State v. Clausen, 117 Wash. 475 ⁴³² (1921), 201 P. 770 ; Holmes v. Frohmiller, 55 Ariz. 556 (1940), 104 P. 2d 156 . The following cases tend to support the contention of the appellee: Gaines v. Horrigan, 72 Tenn. (4 Lea) 608. In this case the constitutional limitation was “during the time for which they are elected.” In a well considered opinion the Court held that a decrease before Horrigan assumed an unexpired term was effective.

Lancaster v. Board, 115 Colo. 261 (1946), 171 P. 2d 987 , dealt with a constitutional limitation prohibiting increase or decrease “after his election or appointment.” The Court held that an increase authorized before the incumbent was appointed to fill an unexpired term was payable. State v. Frear, 138 Wis. 536 (1909), 120 N. W. 216 . In Wisconsin’s Constitution there was a limitation on the power of the legislature to increase or' decrease any public officer’s compensation “during his term of office.” One appointed to fill a vacancy was held entitled to an increase. The Court based its reasoning largely on the fact that the limitation was on the legislature (as in Maryland) and related to the incumbent rather than the term.

To the same effect, see: Freeholders of Atlantic County v. Lee, 76 N. J. L. 327 (1908), 70 A. 925 ; State v. Porter, 57 Mont. 343 (1920), 188 P. 375 (but see State v. Knight, 76 Mont. 71 (1926), 245 P. 267 ) ; Ballangee v. Board of County Com’rs, 66 Wyo. 390 (1949), 212 P. 2d 71 ; Carter v. State, 77 Okla. 31 (1919), 186 P. 464 . Many of these decided cases deal with phraseology 'substantially different from that of our Constitution. It is quite impossible to reconcile the reasoning or the results in all of the cases that deal with this subject and there seems to be no clear weight of authority. The Court concludes that its determination should not be based upon an attempt to determine the weight of the authority in the cases thus decided.

We prefer to predicate the decision in this case upon what we conceive to be the natural and logical interpretation of the words of the Constitution, an evaluation of the purposes of the framers of the Constitution in establishing this pro ⁴³³ hibition and consideration of other Maryland cases which deal with somewhat analogous problems. The entire section in question reads as follows: “No extra compensation shall be granted or allowed by the General Assembly to any public Officer, Agent, Servant or Contractor, after the service shall have been rendered, or the contract entered into; nor shall the salary or compensation of any public officer be increased or diminished during his term of office.” Stripped of its non-essentials, so far as this case is concerned, the concluding clause reads: “Nor shall the salary * * * of any public officer be increased * * * during his term of office.” Had the Founding Fathers intended the construction contended for by the appellant, it seems likely that they would have used some such phrase as “Nor shall the salary with respect to any office be increased during any term thereof.” We agree that the phrase “term of office” must be given effect, but we conclude that it does not necessarily mean the entire term as fixed by statute or by the Constitution. The possessive pronoun “his” is used and its antecedent is clearly the noun “public officer”. To what public officer does this pronoun refer?

It seems obvious that it refers to the public officer whose salary is being considered for increase or decrease or in whose incumbency the change occurs. The pronoun “his” must be given just as great weight as the word “term”. Both words must have effect in determining the meaning of the clause. While the entire term may be identified as Mahaney’s term after his resignation, in the sense that it is identified with him as the original incumbent, it no longer belongs to him and cannot be truly said to be his term.

The phrase means the incumbent in the office at the time the legislature or other appropriate agency acts upon the proposal to increase or decrease the emoluments of that particular office. This construction of the clause is supported by the entire sentence constituting Section 35. The first clause has to do with prohibiting extra compensation to any public officer, ⁴³⁴ agent, servant, or contractor after the service shall have been rendered or the contract entered into. This clearly deals with an individual officer, agent, servant, or contractor and does not affect any other public office or any other incumbent.

This tends to show that the purpose of the entire sentence was to deal with the individual who held the office at the time the question arose. Suppose the State had a firm contract with the ABC Corporation to do certain work for a specific price. This provision would clearly prohibit any extra compensation to that company, but if the ABC Corporation failed to perform its contract — for instance, failed to execute a completion bond as the contract required — this section would not prohibit the State from awarding the same job to the XYZ Corporation at a higher figure. It seems clear that the initial clause of this sentence related to the individual with whom the State is dealing, and it seems logical that the same interpretation should be given to the second clause and its applicability be limited to the individual directly concerned.

The view just expressed is, we think, strengthened by the basic reason for the Section. This Section was obviously designed by the first clause to prevent pressure upon the General Assembly to award “extra compensation” to any public officer or contractor. See State v. Dashiell, 195 Md. 677, 693 . The second clause was intended to prevent a public officer from using his office for the purpose of putting pressure upon the General Assembly or other authorized agency to award him additional compensation and, on the other hand, to prevent the General Assembly or other agency from putting pressure on a public officer by offering him increased compensation or threatening a decrease thereof.

See Vol. 2, Debates of Constitutional Convention (1864), p. 802 et seq. In all of these situations the evil sought to be avoided is applicable only with respect to the incumbent then in office. In this case, Mr. Klein could not have used an office which he did not occupy until two years later to pressure the Salary Board for the increased pay, nor could the Salary Board affect Klein’s performance of his duties when he did take office by providing an increase during the term of his predecessor. There is no more reason for making this Section of ⁴³⁵ the Constitution applicable to one who fills out an unexpired, term than to make it applicable to a holder of the same office under a new term.

It seems perfectly clear that the prohibition would not be applicable to a succeeding term, even though the incumbent was the same individual who held office during the prior term when the change in compensation was effected. We are not impressed with the argument of the Attorney General that if this Section be held to apply to the incumbent of the office rather than to the office itself an incumbent could never receive an increase in pay even during succeeding terms. This reasoning was used by the Court of Illinois in the case of Foreman v. People, supra, but this Court does not concur. Moreover, it seems unlikely that the framers of the Constitution intended to handicap the State or its political subdivisions from offering what might well be a necessary inducement to get a qualified man to fill a vacancy.

Many terms extend for six years and in that period changes in the economics involved, in the character of the duties to be performed, or in the urgency of some important program might well justify a change in the salary to be offered a person in order to induce him to fill an unexpired term. This Court had before it a somewhat similar problem of construction in Hillman v. Boone, 190 Md. 606 . In that case there had been a series of vacancies in the office of Judge in the Fifth Judicial Circuit. Judge Melvin died on December 14, 1945.

Judge McWilliams was appointed as his successor and resigned on March 1, 1948. Judge Anderson was appointed as his successor. The appellant in that case filed as candidate for Judge in the primary elections of May 8, 1948, and sought a mandamus to require that his name be placed on the ballot. He contended that the vacancy must be filled at the first election occurring one year after the appointment of the successor to Judge Melvin, whose death created the first vacancy.

The relevant provision of the Constitution is that a Judge shall hold office “until the election and qualification of his successor * * *. His successor shall be elected at * * * the first such general election after one year after the occurrence of the vacancy * * This contention was rejected by this Court. Judge Markell, speaking for the ⁴³⁶ Court, said (at page 609) : “We think this contention is contrary to the plain meaning of the words, and the evident purpose, of the 1944 amendment.” We then concluded that the pronoun “his” controlled and related to the then incumbent of the office. The appellant urges as one of the reasons to hold that the framers of the Constitution contemplated that the Section in question related to the office rather than to the individual incumbent is that to hold otherwise would admit of an interpretation which would do violence to the spirit of the Section by permitting an incumbent to resign and be reappointed by the appropriate authority, so that he could benefit from an increase theretofore authorized.

It is unnecessary for the Court to determine in this case whether the Constitution could be thus circumvented. See Kearney v. Board of State Auditors, 189 Mich. 666 (1915), 155 N. W. 510 , and Smith v. City of Waterbury, 54 Conn. 174 , 7 A. 17 . It is also suggested that even if this device were unavailable, the purpose of the Constitution could be defeated by the .appointing authority permitting two officers to resign their respective posts and then reappointing each of them to the other’s former job. The Court cannot assume that any appointing authority in the executive department of the State or of its political subdivisions would be a party to a subterfuge.

The possibility of improper conduct on the part of public officials does not warrant us in adopting a construction of the Constitution not justified by its plain language. The people of the State are not without means to deal with those who violate the spirit of our institutions. It is also suggested that to permit an incumbent appointed to fill a vacancy to receive a greater salary than his associates, who may not receive an increase during their respective terms, would produce an incongruous -result which the framers of the Constitution could not have intended. However, this is a result which is implicit in any situation where the members of a board or commission have staggered terms and a salary increase occurs.

The decree will be affirmed. Decree affirmed, with costs. ⁴³⁷ Horney, J., filed the following dissenting opinion, in which Prescott, J., concurred. The majority opinion of this Court, affirming the decree-of the lower court, is based on an interpretation of the meaning of the clause: “* * * nor shall the salary or compensation of any public officer be increased or diminished during-his term of office,” as used in Section 35 of Article III of the Constitution of Maryland. The effect of the decision is to hold that the constitutional limitation relates to the incumbent of the office rather than to the term thereof.

The lower court decreed that Daniel E. Klein, (the public officer), had the right to receive a salary at the rate of $10,000 per annum for the period from November 1, 1953, to April 4, 1955, during which he served as chairman of the Employment Security Board. The annual salary of the public officer, who was filling the unexpired portion of the six-year term of his predecessor, had been increased from