Opinion
January 14, 1947. —
February 25, 1947.
APPEAL from a judgment of the circuit court for Milwaukee county: AUGUST E. BRAUN, Circuit Judge. Affirmed.
For the appellant there were briefs by William J. McCauley, district attorney, and Oliver L. O'Boyle, corporation counsel, and oral argument by Mr. O'Boyle.
For the respondent there was a brief by Gene Posner and Joseph H. Swerdloff, attorneys, and Alfred Kamin of counsel, all of Milwaukee, and oral argument by Mr. Kamin and Mr. Posner.
Action begun March 20, 1945, by Frank J. Schultz against Milwaukee county to recover salary for services as coroner. Judgment entered May 9, 1946, in favor of plaintiff. Defendant appeals.
In 1925, but to be effective January, 1927, the salary for the coroner of Milwaukee county was fixed at $5,000 per year. On May 26, 1942, in anticipation of a legislative change by which a new official would be authorized to perform most of the duties of the coroner, the board of supervisors of Milwaukee county attempted by an ordinance to fix the salary of the coroner at $50 per month and at the same time to eliminate the position of deputy coroner by refusing to allow any salary whatever to such official. This ordinance was to take effect the first Monday of January, 1943, which was the beginning of a new term.
The plaintiff was duly elected to the office of coroner November 3, 1942. He entered upon the duties of that office on January 4, 1943. After plaintiff's election and after the beginning of his term, the legislature enacted ch. 247, Laws of 1943, under which provision was made for the appointment of a medical examiner whose duties were to include many of those performed by the coroner. This act applied to counties having a population of 500,000 or more, of which Milwaukee is one. In accordance with the terms of this act, a medical examiner was duly appointed for Milwaukee county on May 15, 1944.
Milwaukee county offered payment to plaintiff at the rate of $50 per month. Plaintiff claims that the ordinance of May 26, 1942, was void and that he, having performed the duties of coroner, is entitled to be paid on the salary schedule prevailing before the ordinance was passed. The defendant denies liability, basing its contention upon the ordinance referred to, although conceding the reduced salary to be inadequate and unreasonable compensation for the performance of the coroner's usual duties. The plaintiff demurred to the answer of the defendant. The demurrer was sustained and damages were awarded in favor of the plaintiff for the sum of $10,935.90, principal and interest.
The question upon this appeal is whether the county board may, in anticipation of expected statutory amendments justifying such action, fix a nominal salary for the office of coroner, although the coroner would perform the full duties of the office until the coming into effect of changes provided for by the proposed statutory amendments.
Sec. 59.15 (1), Stats., provides that "the county board shall, prior to the earliest time for filing nomination papers for any elective office to be voted on in the county . . . establish the total annual compensation for services to be paid such officer. . . . The compensation established shall not be increased nor diminished during the officer's term and shall remain for ensuing terms unless changed by the county board by timely action."
The county board, intending to act under secs. 59.15 (1) and 59.08 (8), Stats., adopted the ordinance we are considering. They sought to accomplish a result, so far as the coroner and deputy coroner were concerned, which eventually was brought about by the passage of ch. 247, Laws of 1943, and the appointment on May 15, 1944, of a medical examiner provided for by that chapter. But their action in passing the ordinance was too previous to be valid, and the ordinance is void. The office of coroner is elective. Sec. 59.12; sec. 4, art. VI, Const. While it is true that the county board has the right to establish the salary for that office, it is clear that an unreasonable exercise of that power resulting in a reduction of the salary way below a fair minimum, if permitted, would amount to an abolishment of the office. This a county board would have no right to do. The portion of sec. 59.15 (1), italicized above, provides that the power of the county board extends to establishing the compensation for services. The test of reasonableness must be gauged by the duties prescribed by law, not weighted with a possible but uncertain change by legislative action. The term of office cannot be divided. It is not a matter of contractual relation.
The evident purpose of the May, 1942, ordinance, reducing the salary to $50 per month, was to make a financial adjustment which might be warranted in the event of and if the proposed legislation creating the position of medical examiner became law. But until the duties of the coroner were lawfully changed, the coroner would be bound to perform the duties which merited the fixed salary of $5,000 per year. It follows that, because the state constitution and statutes provided for the choosing by the people of such an official to perform the duties then attached to the office, such an election was bound to occur if the orderly processes of government were to continue. The salary for such an official was already fixed at $5,000 per year and it would continue at that figure for the term for which he was duly elected. Respondent was elected and entered upon the discharge of the burdens of office for the term beginning January 4, 1943, and ending on the first Monday of January, 1945.
The statutes then existing, excluding of course the ordinance of May, 1942, furnished the authoritative rule fixing the terms governing the respondent's position and relation to the office. They protected him against being deprived of the salany [salary] incident to his office during the term for which he was elected. 43 Am. Jur., Public Officers, p. 145, sec. 353; 46 C.J., Officers, p. 1025, sec. 263; Schuh v. Waukesha, 220 Wis. 600, 265 N.W. 699; sec. 26, art. IV, Const.; sec. 59.15, Stats.; James v. Dully, 140 Ky. 604, 131 S.W. 489.
The fact is the salary of $50 per month under the then existing state of the law is so inadequate, whether viewed from the possibility of a full-time official living on the salary, or from the viewpoint of the relation of the salary to the importance and responsibility of the duties of the office, that it represents an unlawful effort to abolish the office in advance of any legislative authority for that course of action. The county concedes that as the law stood at the time of the respondent's election and the beginning of his term a salary of $50 per month was unreasonably low, inadequate, in fact, to pay for the services expected to be rendered. It is no answer to this to plead that pending but unenacted legislation was expected to make the duties of the office correspond in their exactions to the newly established and greatly lessened compensation.
A county's ordinance involving election of a constitutional officer, so far as reducing his compensation is concerned, ought not be founded on an anticipation of future legislation, necessarily leaving in the meantime very important work to be done by the officer for which the county for years has been paying at the rate of $5,000 per year with provision for a deputy coroner at a salary of $325 per month. Of course, had ch. 247, Laws of 1943, been passed before the ordinance was, we would have a different problem. However, the functions of the office were important, existing, and positive at the time of the election. Judged by the actual conditions then present, the ordinance was void as held by the learned trial court. He said: "Sec. 59.15 (1) of the statutes specifically forbids the county board from diminishing the salary of any elected county officer during such officer's term." The "county board when it enacted this ordinance acted unreasonably and beyond its authority." The court below reached the conclusion with which we are in accord that inasmuch as the ordinance "was void . . . it could not affect the scale of pay which the county board had determined in 1925."
By the Court. — The order sustaining the demurrer and the judgment are affirmed.
RECTOR, J., dissents.