
    State ex rel. Bashford vs. Frear, Secretary of State.
    
      February 23
    
    March 9, 1909.
    
    
      Supreme court: Justices: Term of office: Appointment to fill vacancy: Change in compensation: Constitutional law: Practical construction.
    
    1. Art. VII of the constitution creates the office of justice of the supreme court, fixes the term of office, and provides for filling the same, and such term is a unit, including, so far as such article is concerned, periods within the full term of incumbency by appointment or election to fill a vacancy.
    
      2. Generally speaking, a constitutional prohibition as to increase or decrease of the salary incident of an office during a term thereof, whether in the form of a prohibition of such a change during the term for which an officer is elected or during an officer’s term of office, refers to the full term, fixed by the fundamental or other law. «
    3. In the situation last mentioned, generally speaking, a person appointed to a vacancy or elected thereto, does not have a term of office, in the constitutional sense, but takes a part of the unit, to wit, of the full term. He merely steps into the place and term of his predecessor and becomes subject to the incident of that term, the salary.'
    4. Whether “his term of office” in sec. 26, art. IV, of the constitution of the state of Wisconsin is synonymous with his incumbency of the office under a particular election or appointment, or is synonymous with the full term of the office created by art. VII, is not so free from doubt as not to be open to solution by judicial construction.
    S. The language “his term of office” in the constitutional provision creating legislative disability to change the compensation of public officers under some circumstances, is ambiguous.
    
      6. The language may, as an original proposition, he regarded as treating with the term of office created by art. YII or any particular incumbency, whether of a full term or part of a term.
    7. In case of an ambiguous law being executed by administrative officers as haying a particular meaning which is reasonable, such practical construction is entitled to more or less weight, according to circumstances, in determining the intent of the awmakers.
    8. In case of such practical 'construction obtaining uninterruptedly for a very long period, particularly so long as fifty years, it is entitled to controlling weight in determining the intent of the .awmakers.
    [Syllabus by M&xsháIi., J.]
    Timlin, J., concurring, is of the opinion that sec. 26, art. IY, Const., relates to the officer, not to the office, and to Ms term, not to the term; and that the true interpretation of the section is that he who comes into an office lawfully by election or appointment to fill a vacancy caused by the death, disability, resignation, or removal of a different prior incumbent is not under the restrictions as to increase or diminution of salary which bound the prior incumbent, but takes under the law in force at the time of his appointment or election to fill the vacancy.
    ApplicatioN for a writ of mandamus to compel tbe secretary of state to issue bis warrant to tbe state treasurer in favor of tbe relator, Hon.-A. M. Bashford, for $500 as balance of bis salary as justice of tbe supreme court for tbe period 'from January 1, 1908, to July 1, 1908.
    
      Granted).
    
    Hon. John B. Oassoday, pursuant to election and qualification, entered upon a full term of ten years as justice of tbis court on tbe first Monday of January, 1900. Tbe salary fixed by law for a justice of sucb court was $5,000 per year, payable quarterly in advance. Tbe office became vacant by bis death, prior to January 4, 1908. In tbe meantime tbe salary was increased to $6,000, payable as before. On sucb date Hon. A. M. Bashford was duly appointed to fill tbe office made vacant as aforesaid, sucb appointment pursuant to sec. 9, art. VII, of tbe state constitution, to continue until tbe election and qualification of a successor of tbe deceased justice. A successor so elected and qualified duly assumed the duties of the office July 1, 1908. In the meantime the secretary of state issued warrants to said Bashford aggregating $2,500, being the amount the deceased justice would have-been entitled to had he lived and continued his incumbency, refusing to issue warrants to said Bashford for a half year’s, salary at the rate of $6,000 per year, which he claimed was-his due. He accepted the warrants without prejudice to his right to the additional $500. The secretary refused to recognize siich claim upon the ground that the prohibition contained in sec. 26, art. IV, of the state constitution as regards-any increase of a state officer’s salary “during his term of office” relates to the full term created by the constitution, or other written law, and not the particular part thereof during which it may be filled by an incumbent, but covers all parts as a unit, and that sec. 1, ch. 414, Laws of 1901, whereby the-salary incident was changed to $6,000 with a provision that it should not apply to the remainder of the terms of justices-then in office, had reference to the regular terms of office, not to particular persons filling the offices for particular periods.
    Upon a motion by the defendant to quash the alternative-writ there was a brief for the petitioner signed by John A. Aylward and M. M. Bashford in pro. per., and briefs for the-defendant by the Attorney General and Bussell Jaclcson, deputy attorney general.
   Marshall, J.

This application presents a very interesting and somewhat grave question. In all, or most, written constitutions, provision is made against changing an officer’s, salary during his term of office.

The temptation, which competency of the legislature to-change salaries of officers during terms of office would hold out for it to do so, for bad as well as for worthy purposes, and for executives to manipulate such a situation to serve either purpose, or to favor one officer above another, or officers to-scheme for their own pecuniary aggrandizement, — has been supposed to be so fraught with danger, interfering with that high standard of official life requisite to the best public serv: ice, that in the fundamental laws, generally, absolute disability of the lawmaking power to change the status of the salary of an officer after the commencement of the term for which he was elected, as it is sometimes phrased, or during his term of office, as it is likewise phrased, is found.

The general trend of authority is this way. The constitution or other written law creates the office and fixes the term thereof and gives thereto the incident of a specific salary. The office, the term, and the incident may exist for any period of time without the office being Ailed or without there being-any method provided for filling it. "Upon such method being-provided and the office being filled the incumbent takes it with its fixed term and incident. If he goes out during such term and another steps in the latter does not take a new term but takes a part of the same term prior thereto enjoyed by his predecessor. The term continues during its fixed period with its incident for such period regardless of how many incumbents there may be, each succeeding the other. Where-another incumbent goes in at the commencement of the full term prescribed by law, such full term becomes his term, within the meaning of language in the fundamental law prohibiting any change in an officer’s salary during his term of' office, and in case of his going out during such term and being succeeded by another such other succeeds to the same term as that held by his predecessor, so that, during his incumbency, the full term, so far as not yet run, becomes his term in the constitutional sense.

That has been supposed by courts which have dealt with the matter to be the proper construction to be placed upon a constitutional provision similar to ours, in view of the logic-of the situation, regardless of whether the language of the-constitution prohibits a change of salary of an officer “during his term of office” (Larew v. Newman, 81 Cal. 588, 23 Pac. 227; Storke v. Goux, 129 Cal. 526, 62 Pac. 68); or “during the term for which he was elected” (Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674); or “the time for which he was elected” (Gaines v. Horrigan, 4 Lea (72 Tenn.) 608).

Those decisions cited by counsel, as well as People ex rel. Bentley v. Le Fevre, 21 Colo. 218, 229, 40 Pac. 882; Simpson v. Willard, 14 S. C. 191; Jameson v. Hudson, 82 Va. 279; State ex rel. v. Schmidt, 14 Mo. App. 589, being all the cases of moment on either side, except one hereafter noticed, are to the effect that the term of office fixed by law, in the absence of some clear indication to the contrary, is a unit; that the incident thereto is as'unvariable as the term, and that one who comes in to fill a vacancy does not take a new term but merely takes up the work of the old term with its duties and its incidents. The industry of counsel has resulted in placing before us all the authorities extant, bearing helpfully on the question. None of them go back within many years of the time when the administrative officers of this state, without judicial guidance, took a stand in regard to the matter.

The petitioner cites Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, as holding Contrary to the foregoing, and that the words “term of office for which he is elected” in the Minnesota constitutional prohibition against a senator or representative holding any office under the authority of the United States or the state, with certain exceptions, “during the term for which he was elected,” mean during the term of his incumbency ; that the term for which he was elected is synonymous with “his term of office,” which means during his incumbency of the office; that during one full term of office there may be several successive incumbents, each having a fraction of a full term, and in that situation have a term of office which as to him is his term of office.

That logic is diametrically opposed to the other cases cited and would go far to sustain 'the petitioner’s petition, if the court which, adopted it Rad adhered to its decision; It Rad tRe support of a long line of opinions of tRe state’s highest legal adviser, hut when the court came to face the situation created by such decision, reinforced by such legal opinions, 'fifteen years later, it overruled it, adopting,, without qualification, .the same logic and arriving at the same conclusion as courts •had before and have since, to which we have referred.

In view of the result reached, it is useless to spend further time in the discussion of authorities. So much as has been said seemed to be required to show that the authorities, upon which the learned attorney general and the petitioner rely, have not been overlooked or misunderstood. It seemed to be especially due to the attorney general and the secretary of state, as a vindication from any suspicion of capricious obstruction of the petitioner’s efforts to obtain from the state treasury what he conscientiously believed to be his due.

In view of the trend of authority as we have fairly, it is thought, indicated it to be, they may well have had very serious doubts as to whether the petitioner’s claim was valid, and, having such doubts, they exhibited a most commendable fidelity to their high official duty to guard the public funds by resolving-that doubt in favor of the state and leaving the result to be dealt with by this court. If the result shall be that such doubt, under all the circumstances, in the judgment of this court, should be resolved in favor of the petitioner, it will not take even a jot from their credit in the matter.

Our constitution at sec. 1 [4], art. VII, creates the office of justice of the supreme court and the term of office. It left 4he legislature, as the instrumentality to attach thereto the salary incident, entirely untrammeled, except by sec. 10, art. VII, commanding that each of the incumbents “shall receive a salary, payable quarterly, of not less than one thousand five hundred dollars annually,” and no other compensation whatever. The same section deals with the term of office created by the previous section referred to by providing that an incum-Pent “shall hold no office of public trust, except a judicial office, during the term for which he is elected” and all votes cast for him by the people or the legislature during such period except as aforesaid “shall be void.” Here we have the office, the term of office, the incident of office, to wit, the salary and the exclusion from every field of official life outside of the judicial field during such term, to wit, the elective term. All that, is in tire article especially devoted to the judiciary.

Turning now to art. IV, devoted to the legislature and its powers, we find that it creates an absolute disability of the lawmaking body to change, in any way, either by increasing or decreasing, any public officer’s compensation “during his term of office.” There is no prohibition in those parts of tire constitution dealing with the different classes of state officials or their terms of office on the subject of increase or decrease of compensation, as in the other states to which we have referred. Por instance, in California the prohibition, as to municipal officers, is in that part of the constitution relating to the offices. The same is true with reference to county officers and likewise with reference to judges of the courts and so with reference to offices commonly denominated state offices: governor, secretary of state, state treasurer, and the like. There is nothing on the subject in the chapter relating to legislative powers. The same is true in Tennessee.

We mention the last foregoing for what it is worth. It is not entirely without significance on the subject of whether the words, “his term of office,” in the clause relating to legislative powers, means term of office created, as indicated in the article on the judiciary, or “during the term for which they are respectively elected,” in sec. 10 of the same article. If the section which relates to the salary contained a prohibition as to increase or decrease, as in other state constitutions, there would be less difficulty in reaching a conclusion. As it is, the question presented is somewhat new. Its solution rests on the limitation of legislative power, disassociated entirely from .the provision as to the office, term of office, and salary where the term doubtless is disassociated from the incumbent.

Sec. 9 of art. VII, relating to filling vacancies in the office of justice of this court, is'closely associated with the other features of art. VII and doubtless speaks of term of office in the same sense as such features. It provides that in case of vacancy it shall be filled by appointment by the governor, which shall continue until a successor is elected and qualified, and such successor shall hold his office the’ residue of the unexpired term, thus recognizing the unity of the term, part lasting during the incumbency of the person taking the office by election at the start, part during the incumbency of the appointee, and part, “the residue of the unexpired term,” during the incumbency of the second person elected.

It seems quite singular, if the plan of the constitution makers were to apply the idea of unity to the salary, coinciding with unity of term under art. VII, that a prohibition as to change in the salary incident to the office being made during a pending term, was not incorporated in sec. 10, the appropriate place as an original matter and according to constitutions generally then existing and constitutions since framed for other states. The constitution of Michigan was used as one of the models worthy to be followed. The particular feature under discussion was incorporated therein at the point where -one would expect to find it, if the salary for the full term was intended to correspond thereto as to unity. Why was it dropped out by the framers of our constitution, they contenting themselves with placing a limitation upon legislative power, in the article on that subject, to change the “compensation of any public officer during his term of office,” using language, as will be seen, quite appropriate to the idea that the particular time of the particular officer’s incumbency of the office should be regarded, at that point, as “his term of office” instead of the full term dealt with from first to last in art. VII?

Now at tbis late day, for the first time, the court is challenged for a judicial answer to the question of whether the peculiarity above mentioned, 'efficiently, evinces a purpose to-deal with a mere period of incumbency in art. IV while plainly dealing with the office, and term of office, as a unity, disassociated from the personal element, in art. VII. It is-somewhat unfortunate that it has been so left; that after the-lapse of more than half a century, during which many of the-honored members of this court were compensated for their-services upon the theory that the term mentioned in art. VII is not, necessarily, that mentioned in art. IV, and in excess of what they would otherwise have received, and after most of' the justices, so affected, are only with us in memory, in history and the records,- — we must take up the question of' whether they were rightly so compensated or not. We approach the question, notwithstanding such situation, entirely unconscious of bias, one way or the other, hoping to decide the same upon the high plane of judicial impartiality.

If we had to deal with the matter from the standpoint of 1857, or thereabouts, we might not be able to discover, satisfactorily, that a prohibition, such as is found in other constitutions, associated with the creation of the office and of the-term of office and providing for its incident of salary, bore' primarily on the competency .of the officer to take an increased salary, more clearly than on the competency of the-lawmaking power to provide for it; or that, whether the prohibition be so located or as we find it in art. IV of our constitution, it would not be a limitation of legislative power, primarily.

If it were not for the conditions hereafter noted it would be-very difficult to escape from the logic of the decisions elsewhere to which we have referred. Except for the peculiarity mentioned the situations harmonize in opposition to the petition.

From what has been said, it is quite clear that the meaning; of “bis term of office” in art. IY of the constitution is far from being free from ambiguity. Even if it were used in an appropriate section in art. VII, dealing with the office of justice of this court, the term of office, and the compensation, it would still be, as an original matter, far from being free from obscurity. That is well illustrated by the decisions of the different courts which have defined it, only by resort to rules for judicial construction. It will be seen by an examination of the decisions to which we have specially referred that in every one of them the term under discussion, or some similar term, was treated as involving obscurity of meaning. So far as the uncertainty in the present case exists, by reason of the location of the vital words in art. IY instead of in art. YU, obscurity is lessened in'favor of the petitioner. If one could entirely shut his eyes to the featurejs'of art. VII to which we have alluded, the words “compensation of any public officer during his term of office” might be held to unambiguously refer to the period of incumbency as the term of office of the incumbent. If there was a shadow of ambiguity, it might be dispelled by the light of the conditions the constitution makers were dealing with. There was a young but rapidly growing community. Offices, and terms of office of considerable length, had been provided for, or were in contemplation, with salary incidents so very meager that it could not have been thought, in some cases, the grade of service appropriate to the situations could be secured beyond a brief pioneer period. That is strikingly illustrated by the fact that the salary of a justice of this court was, at first, only $1,500, while the term of office was fixed at six years.

When it is conceded, as it must be, on the most favorable view for respondent, that the situation, involves uncertainty, it admits that practical construction, so far as the same has been given to the matter, is entitled to considerable weight, especially since it has covered a period of over fifty years without interruption, as we shall see. So we will review the situation in that regard, not stopping to discuss the competency of practical construction of a law, in aid of discovering the intent thereof, where such intent is involved in obscurity. The law in tli at regard is elementary.

By ch. 102, Laws of 1857, the salary of a justice of this court or a circuit judge was increased from $1,500 to $2,500, ¡payable quarterly, in the manner then payable, the same to apply to any justice thereafter elected or appointed, but not to be construed so as to increase the compensation of any circuit judge then in office ¿íduring his term of office.” It will be interesting to note that the only subject mentioned in the title of the act is, salaries of the judges of the circuit courts, and that the declaration against construction so as to enhance the compensation of officers in service during their terms did not apply to justices of the supreme court. That suggests legislative intention, so far as competency existed, to increase the compensatory incidents of such offices as to incumbents coming in after the passage of the act by appointment or election to fill out a pending term under art. VII of the constitution. That is, that the legislature had in mind the idea that the term of office in such article was something different from the term of office of any public officer under sec. 26, art. IV. Without such idea no reason could well be assigned for the legislative purpose indicated.

Under the law aforesaid, till the decision in State ex rel. Crawford v. Hastings, 10 Wis. 525, made in the early part of 1860, there was some uncertainty, after the passage of ch. 41, Laws of 1854, seemingly, changing the time for the commencement of the term of office of a justice of this court from June 1st after the election till the first Monday of J anuary after such election, as regards whether such change was effected or not. Justice Cole and Chief Justice DixoN at the outset concluded that such change was effected, while later the chief justice joined with Justice PaiNE in a contrary decision. During the period of uncertainty Chief Justice WhitoN was re-elected, and evidently supposed that tbe term for which he was first elected, which by the law then in force continued till May 31, 1857, or until his successor was elected and qualified, covered the interim between that date and the commencement of the new term under the change in the statutes, but that such interim period might be a new term under sec. 26, art. IY, instead of a part of the whole term. If “term” under art. YII of the constitution was identical with “term” mentioned in art. IY, then the salary incident might be governed by the law prior to the passage of the act of 1857. If the appointment was for a new term intervening between the termination of the old and the commencement of the new one; if the interim was to be considered as a period to which he was appointed by force of law, then it might be that the increased compensation provided by the act of 1857 applied to it, and it might be that such situation was the very thing the legislature had in mind in the peculiarity of the legislation before mentioned. Let that be as it may, as the record shows, the chief justice took advice of his associates in service, Justices Cole and Smith. All concurring, they advised, unofficially, the secretary of state. Thereupon, and perhaps, as is most probable, upon advice of the attorney general, he ruled that while the interim period was, in one sense, a part of a term added, by force of law, it was a separate period or term of office as regards sec. 26, art. IY, which the legislature probably had in contemplation, and accordingly a warrant was issued to him for the increased pay provided by the act of 1857. ' ; ■

Later Justice Paihe was elected to succeed Justice Smith, whose term of office, according to the law as it existed at the time of his election, expired May 31, 1859, while the new election was for a term commencing, as was supposed by some, January 1, 1860, and by others as not so commencing, Justice PaiNE being of the latter view. With that uncertainty existing it was solved by Justice Smith resigning and Justice PaiNe being appointed, to tbe place to serve until the succeeding January 1st by such, appointment, and its being so arranged that he would fit into the place regardless of the outcome of the mooted question. Eor this appointive period the secretary of state, as state auditing officer, ruled that the salary incident was regulated by the act of 1857, and issued to Justice PaiNB salary warrants for the period commencing June 1, 1859, and ending January 1, 1860, so as to comply with the law whether such period were considered a term of office within the meaning of sec. 26 aforesaid, or part of a full term commencing June 1st aforesaid under art. YII of the constitution.

By ch. 33, Laws of 1867, the salary incident to the office of justice of this court was again changed from $2,500 to $3,500 and to apply to justices “hereafter elected or appointed.” The act took effect March 26, 1867. Public desire to retain the valuable services of Chief Justice Dixokt, whose term was drawing to a close, doubtless influenced this legislation. The history of the times so tells us. The election was to come, regularly, in April, 1869, leaving quite a period with the salary incident at the low point. It was supposed by the governor, the chief justice, and, evidently, his associates, Justices Cole and Paihe, that in case of his resignation and reappointment to fill out the pending term as an appointee, he would have a new incumbency under sec. 26, art. IV, aforesaid and be within the letter of the salary increase act. Such, as we have seen, had been the prevailing idea for now over ten years. That course was taken for the manifest purpose — which all parties concerned, directly or indirectly, the governor, the attorney general, all the justices of this court as individuals, the state treasurer, and the secretary of state, who necessarily ruled on the question in issuing the warrant which the chief justice received — of affording him the salary increase designed, which was supposed to be necessary in order to retain his services, and which was universally thought he might rightfully receive.

After the increase of salary by the law of 1867, Justice Doweeb, wbo succeeded Justice PaiNE upon bis retirement in 1864 to enter the army, resigned and was succeeded, September 11, 1867, by return of Justice PaiNE, by gubernatorial appointment, to fill the place till it could be filled by election the succeeding spring. In due time it was so filled by election of Justice Paiee. In the meantime, by cb. 145, Laws of 1868, the salary was changed from $3,500 to $4,000, to apply, as before, to justices thereafter elected or appointed. In January, 1871, Justice Paote died and Judge William P. LyoN, by appointment, succeeded to fill the vacancy till it could be provided for by election the succeeding spring, which was done, Justice LyoN being elected, and at the same time being chosen for a full term. Here then we have four separate periods of incumbency during the term for which Justice DowNeb was elected and as to which period, respecting his term of office under art. YII aforesaid, the salary incident was $2,500 per year. Eor two of the periods the office was filled by Justice PaiNE, as we have seen, one by appointment and one by election, while the other two were filled by Justice LyoN. Each incumbency was regarded, as to the incumbent, as his term of office under sec. 26 aforesaid, Justice PaiNE receiving the increase of salary over that received by Justice DowNee of $1,000 for the first period and $1,500 for the second period, and Justice LyoN the latter increase for each of his periods. Justice PaiNe’s first period, as will be observed, preceded the transaction as to Chief Justice DixoN before mentioned, and was regarded as a safe precedent therefor, in view of previous history, as will be hereafter seen. Justice PaiNe’s second period and Justice Lyoe’s two followed the agitation created by the transaction as to the chief justice and was doubtless supposed to be justified, without room for serious controversy, by the result of such agitation.

We may well say, in passing, that in the official record as promulgated by the secretary of state, from time to time, in the blue book, both as to all the periods we have mentioned and that of RyaN, Chief Justice, hereafter alluded to, the salaries of justices of the supreme court are specified, in harmony with the construction of the fundamental law, by those who had to do with the matter, as indicated.

The action of Chief Justice DixoN challenged public attention, sharply, to the manner the constitutional provisions under discussion had been construed and administered. Some claimed they had been violated. Such is the history of the times. The next spring after the particular occurrence it was necessary to fill the place temporarily occupied by the appointee, by an election. Chief Justice DixoN was a candidate for the vacancy he had created. Hon. Charles Dunn was an opposing candidate, the issue largely, if not in the main, being whether the occurrence aforesaid was proper.

In the situation stated, the position of the chief justice and his associates and all others who had been previously concerned in administering the ambiguous law, was placed before the people of the state in a carefully prepared article, published in the official state paper under date of January 16, 1868. By whose hand it was prepared we have no way of knowing, except as we may judge by the manner the subject was treated. That the article was written with consummate care and the situation stated with the legal precision which would be expected of a trained judicial mind, is quite evident. That it, at least, received the approval of the chief justice and his associates, there can be little or no doubt. Here is so much of the presentation as is particularly appropriate to the full history we are endeavoring •to write, and appropriate as a vindication of the chief justice from any criticism upon his course from the standpoint of common judgment in 1868:

“The provision of the constitution which is claimed to have been violated, is found in art. IV, sec. 26, and is as follows : ‘Nor shall the compensation of any public officer be increased or diminished during his term of office.’ , What was the meaning and intention of this provision ? Did it have reference to the full terra of office only ? This is not claimed by any one. Thus it is conceded that Judge PaiNe, who was appointed in the place of Judge DowNee, who had resigned, is entitled to tire increased salary. This is for the reason that his Term of office’ did not commence until his appointment took effect. It was, therefore, a distinct, independent term of office and not identical with the term of Judge DowNee, who had resigned.
“The term of office which Judge PaiNe holds by appointment will continue until his successor is elected and qualified. And then his successor will enter upon another term of office, which will be his term. And if, before such election, the salary should be again changed, and either increased or diminished, no one will doubt that such successor should be paid according to the new law, whether more or less than the present salary.
“This is because there will be three distinct terms of office,, all occurring within the full term, or period of time for which Judge DowNee was elected. Pirst, his term, which expired when his resignation took effect. Second, the term of Judge PaiNe, which began at his appointment and will end when his, successor is elected and qualified. And third, the term of his successor, who is to be elected next spring.
“Now it being conceded, as it is universally, that these constitute three distinct terms of office, within the meaning of the constitutional provision under consideration, all ground of objection to the action of Judge DixoN fails. Because the constitution did not prohibit an increase or diminution of the salary at any time during the full term for which he was elected. On the contrary, it only prohibited it as to him during the term for which he should hold by virtue of that election. But it was in his power to put an end to that term at any time. And who can say that he had not a perfect right to do so? He violated neither the letter nor the spirit of the constitution in giving up his office. He submitted himself again to the appointing power, and will be obliged to submit himself again to the people if he is re-elected. The governor was not obliged to reappoint him. If there had been any valid objection against it — any fitter person to fill the office — the governor might have appointed any other citizen as well, and we are bound to suppose that, in this case, as in any other, he made the appointment because he considered it the best, and in view of the responsibility that rested upon him. But as he did. reappoint him, Judge DixoN took the office by a new tenure and entered upon a new term, precisely as any other person would have done. It was, therefore, with him a mere question of financial expediency' — -it might be said, with truth, of financial necessity. It was a question of whether he would continue to hold the office by virtue of his election, at the old salary, or give it up and take his chance for a reappointment and re-election for the sake of getting the increased salary. The reasons which compelled and fully justified his course are notorious. The war had doubled the expense of living, so that the old salary was inadequate to the support of his family. He had spent a number of the best years of his life in hard, unremitting toil, for this inadequate compensation, and having exhausted the little surplus which he had previously acquired it was a matter of sheer necessity with him either to give up the office altogether, or to take it by a new tenure under which he would receive the increased pay. Of his right to do this there is no question. That it was, under the circumstances, a duty which he owed to himself and his family, is clear. Of course the people are not obliged to re-elect him. That was one of the chances which he took, and had a right to take. But to refuse to re-elect him upon this ground would furnish a signal illustration of that affected virtue which strains at a gnat but can swallow a camel.”

Thus the matter was put- to the people, followed by such discussions, as would naturally be expected, up to the day of election, resulting in election of the chief justice by a substantial majority. That set the matter at rest for a long time, and, as was supposed, probably, permanently, as indicated by the fact that the chief justice was re-elected the following spring for a full term of six years without opposition and as further indicated by subsequent history, as we shall see. To what extent the foregoing really vindicates, as right, the circumstance of the resignation from office and regaining thereof, in the manner indicated, for the manifest purpose of thereby obtaining a greater compensation for official services than that incident to the office at the start, we do not intend to express any opinion.

By ch. 293, Laws of 1873, the salary was raised to $5,000,. payable, as before, to justices “hereafter elected or appointed.” January 1, 1874, Chief Justice Dixorr, whose term was to expire by law the 31st day of May, 1875, resigned, leaving a residue of the term for which he was elected of some over one year. Hon. Edwaed G. RyaN took the place, by appointment, till elected in the spring of 1875 to fill out the residue of the term. Such election and appointment were, in harmony with previous history and within the letter and intent of the act of 1873, for an incumbency, first by appointment and, subsequently, by election: two separate terms of office, within the meaning of sec. 26, art. IY, of the constitution, as the same had been theretofore understood, though parts of one entire term, contemplated by art. VII. Accordingly Chief Justice Ryaw was compensated for his services - according to the act of 1873, instead of according to the law .at the time of the commencement of the term he was elected to fill out

Later upon the occasion for issuance of a warrant to Justice Siebeceer for the first quarter year of his incumbency by appointment to fill the vacancy caused by the death of Justice' BardeeN, opportunity was again presented to the state auditor to pass upon the matter under discussion, the salary incident of the office having been changed during the term for which Justice BaedeeN was elected, to $6,000. It appears, such auditor was uncertain as to whether the appointee was entitled to the increase or not, because, whereas, on the former occasion, the act expressly provided the increase should be so awarded, the new act (ch. 138, Laws of 1901) afforded the increase only “to justices thereafter chosen and for terms of office thereafter to commence,” expressly excluding those in office as to the remainder of their terms, that being amended by eh. 414, striking out the reference to those thereafter •chosen. Thus the question was presented of whether an incumbency by appointment constituted a period denominable as “a term of office” within the meaning of the act, as it had' been treated theretofore for some forty years under sec. 26 of the constitution aforesaid. The omission of the words “hereafter appointed or elected,” found in all previous acts, obviously challenged special attention. The attorney general, being applied to for advice in the matter, gave his opinion to-the auditing officer under date of May 13, 1903 (see Biennial Report and Opinions, 1904), to the effect that the term of office mentioned in the act was the constitutional term of ten years of which the appointive term formed a part, and, therefore, that the latter was expressly excluded from effect by the-salary increase, and further that any legislative attempt to change the salary incident of the constitutional term of ten years, so as to malte it applicable to increase the compensation to an incumbent serving a part of said term by appointment, over the compensation incident to the office at the commencement of such term, would be unconstitutional. Whether the learned attorney general was familiar with the history we-have given, does not appear. We may well presume, from the fact that no reference is made to it in his opinion, that he was not. If so, we may well conclude that, in the light of such history, a different opinion might have been given.

Relying on that opinion, the auditing officer ruled against Justice Siebecker’s application. Later, as appears, and whether by further advice of the attorney general’s office does not appear — but the presumption would be that new light had been shed on the matter which cast grave doubts upon the correctness of the opinion in the mind of the law officer, — the auditing officer reversed his ruling and issued to Justice Sie-becKEe a warrant for the increased salary, which had for a considerable length of time been retained.

It does not seem that the change in ch. 138, Laws of 1901, by ch. 414, had any significance, except to cut off opportunity to resign and regain'the place by appointment, as Chief Justice DixoN did, and. thereby a person in service at the time of the passage of the act obtain the benefit thereof. That is suggested by the two elements, “justices hereafter to be chosen” and “for terms hereafter to commence,” in conjunction. The-words “term of office,” as regards changes in salary, had by long usage and many rulings, as we have seen, come to mean,, under sec. 26, art IV, of the constitution, the period of incumbency whether for a full term or a fraction thereof. It is fair to presume that it was used by the legislature in such sense, no other having obtained here during .the life of our constitution. That such was the case, is persuasively shown, by the fact that, following the restriction of the act to “terms of office thereafter to commence,” the act, ex industria, provided that justices . . . “now in office shall be paid during: the remainder of their terms” the same salaries as theretofore,, thus unnecessarily giving significance to the personal element, except to emphasize the idea that the term previously spoken of was the term of incumbency. That construction harmonizes with the whole history of the subject from the formation of the constitution, and is certainly reasonable, if not inevitable, if we concede that “his term of office,” as used in sec. 26, art. IV, has reference to the personal element, primarily,, instead of to -the “term,” primarily, being disassociated from such personal element, as in art. YII.

It is the opinion of the court that the view which has so long prevailed, which commenced, so far as discovered, with-Chief Justice WhitoN, one of -the dominating personalities framing the constitution, seconded by Justice Cole, also one.of such framers, and has been the guide for many legislatures, justices of this court, and all state officers having to do with the matter, without any disturbance whatever till a question was raised, as we have indicated, under the peculiar wording-of the law of 1901, should continue to be the guide; that such construction of see. 26, art. IY, is permissible, if not plainly required, and that after so long and so harmonious submission to such construction, it should be regarded as the correct one.

As we have progressed in an endeavor to voice, logically, tbe court’s opinion, reluctance, at first, to yield thereto lessened as the pages of history unfolded and now.is entirely displaced. As an original matter, it is not improbable that the term of office spoken of in art. VII is the term of office spoken of in .art. IV, and that it is a unit as regards the salary incident, though we must freely confess ambiguity in the situation and reasonableness of the other view, which we conclude, in face of the uniform past, on principle, ought to be followed. For .years after the constitution was adopted there were no aids .in the books to its construction in respect to the question under discussion. If those who had early to do with the matter had had the benefit of the judicial reasoning on like provisions, which was postponed for some twenty years, a different conclusion might have been reached.

It requires a very clear case to justify changing the construction of a law, conceded to be somewhat involved, which has been uninterruptedly acquiesced in for so long a period as fifty years. It is firmly the opinion of the court, for reasons we have endeavored to state with the fulness the importance •of the case demands, that a situation justifying a change does not exist as to the matter in question.

We should say, in passing, that amendments were proposed in the constitutional convention placing the usual restrictions upon changing the salary of a justice of this court, in an appropriate section in the article on the judiciary, but it was not done, as we have seen. '

So the conclusion is that the judicial' term mentioned in .art. VII of the constitution has regard, primarily, to the office, disassociated from the occupant of it; in other words, it contemplates unity, so that several incumbents during the term take mere parts of an entirety; that “his term of office,” as used in sec.- 26, art. IV, of the constitution, has regard, primarily, to the personal element, the incumbent of the office; contemplates the period of incumbency, whether of a whole term, or a part of the entirety, under art. VII. As to the particular incumbent’s term of service, during its pendency, tbe legislature is under complete disability to change tbe salary incident in any manner or to any extent; but as to aijy period, within a whole term, filled by appointment or election, tbe legislature has power, before tbe commencement thereof, to fix the compensation, different from that incident to tbe office during tbe preceding period.

By the Court. — Tbe prayer of tbe petitioner is granted.

Timlin, J.

(concurring). As I view this matter tbe only question involved is whether one appointed by tbe governor to fill a vacancy in tbe office of justice of tbe supreme court, which vacancy was caused by tbe death of tbe prior incumbent of that office, takes tbe salary fixed by statute enacted and in force prior to bis appointment, but not applicable to tbe salary of bis deceased predecessor in office because enacted, approved, and published after tbe term of such deceased predecessor bad begun.

I reach tbe same conclusion as tbe majority, but solely upon tbe following grounds: Precedents from other states have little advisory value in questions of interpretation, because, however nearly like tbe words in question may be to those in other state constitutions, they are not identical nor found in like collocation, nor affected similarly by other cognate expressions elsewhere found in tbe instrument. This weakness of such precedents has been often noted in questions of interpretation. Tbe provision of our constitution relating to increase or diminution of salary is not limited to judicial offices, but includes all public officers, and appears as a general limitation upon legislative power. It restricts tbe power of tbe legislature with reference to different classes of persons ; relates to tbe officer, not to tbe office, to bis term, not to-tbe term. It is as follows: .

“Sec. 26. Tbe legislature shall never grant any extra compensation to any public officer,, agent, servant or contractor after tbe services shall have been rendered or tbe contract en-fcered into; nor shall the compensation of any public officer be increased or diminished during his term of office.”

I construe this as wholly personal to each of the classes therein mentioned, including the “public officer,” and the expression “during his term of office” accords with this construction. Otherwise the framers of the constitution would have used the expression “public office” instead of “public officer,” and “the term” instead of “his term.”

Again, in other sections of the same instrument where cognate restrictive provisions are found, the words employed are significantly different. As in sec. 10, art. VII, prohibiting judges from holding any other office, it is said:

“They shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected.”

Or sec. 12 of art. IV, which provides:

“No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created or the emoluments of which shall have been increased during the term for which he was elected.”

The contention of the learned attorney general is that sec. 26 -above quoted should be construed as if it read, “during the term for which the first incumbent was elected,” instead of “during his term,” and as if it applied to the salary fixed at the beginning of the official term of the first incumbent regardless of change of incumbents during this period or term. I think this would be giving the words “public officer” the meaning of “public office,” and the personal “his term” the meaning of the different impersonal expression, “the term,” and that such construction varies from the usual and ordinary meaning of these words and is therefore inadmissible.

I am convinced that the main purpose of sec. 26, supra, is to make public officers independent of the legislative branch of the government as far as possible, and to prevent the in-flucnce upon tbe legislative branch of a combination of interested officeholders in an effort to raise their salaries, and these purposes should be considered in construing the provision in question. I do not approach this question of construction from the viewpoint of taking the constitutional official term as a unit and dividing this unit into as many fractions as there may happen to be official incumbents during that term, but I regard the provision as personal to the incumbent of the office. If he enters the office after the change of the salary has taken place he is entitled to that salary, and as to him it cannot be increased or diminished; but if the office is vacated by death or otherwise before the expiration of the term the succeeding incumbent takes the office with the salary fixed by the legislature for that office and in force at the time of the appointment or election of the succeeding incumbent/even though such appointment or election be for part of an unexpired term. I am strengthened in this view because this construction of the constitution was arrived at by Chief Justice Whiton and by Chief Justice Cole, both of whom took part in framing the constitution, and by Chief Justice RyaN and Justice PaiNe, and others, in drawing and accepting salaries pursuant to this interpretation. The legislative and executive branches of the state government also put this construction upon the constitution by the enactment of ch. 33, Laws of 1867, ch. 145, Laws of 1868, and ch. 293, Laws of 1873, in each of which statutes it was .provided that the increased salary of judges of this court should apply to judges thereafter appointed. As no appointment could be made except to fill out part of an un•expired term, the legislature which enacted, and the governor who approved, these laws considered it not in violation of the •constitution that the appointee thereafter appointed to fill out tany part of the then existing terms should have the increased .■salary during “his term.” So the departmental officers of the ■■state for nearly half a century have put this construction upon tbe provision of the constitution in question. All this seems-to me to much outweigh the advisory effect of foreign judicial precedents upon questions of construction of somewhat similar though not identical provisions, and I have no doubt and have had but little difficulty in arriving at the conclusion that, the true interpretation of sec. 26, art. IV, of the state constitution is that he who comes into an office lawfully by election or appointment to fill a vacancy caused by the death, disability, resignation, or removal of a different prior incumbent is-not under the restrictions as to increase or diminution of salary which bound the prior incumbent, but takes under the-law in force at the time of his appointment or election to fill the vacancy.

Siebecker and Barnes, JJ., took no part.  