Tubman v. Berwager , 190 Md. 193 ( 1948 )

The Trial Magistrates' system, as it now exists in the counties of this State, was the result of long continued dissatisfaction with the Justice of the Peace system which had preceded it. Under that system the Governor appointed a number of justices of the peace for each election district in the county. These justices of the peace were paid from costs imposed in the civil and criminal cases that were tried before them. There were two results from this method of compensation which were mainly responsible for the change. One was that the amount a justice could collect during any year was in most instances so small that men of capacity and responsibility were unwilling to accept the position. That resulted in a number of inferior men being appointed, which acted cumulatively to still further decrease the attractiveness of the office, and made it more and more difficult to secure the type of men who would properly administer justice. The other objection was that the fee system of compensation, resulted, sometimes knowingly and sometimes insensibly, in making a magistrate favor the source from which he received most of his compensation. In certain communities there would be a number of civil collection cases brought by a business house or a lawyer. Fees in these cases were always promptly paid by the plaintiffs when the cases were brought. As a result, such a lawyer or business house was apt to become a favored litigant and it was almost impossible for a defendant to succeed against him or it. And if the police, particularly those enforcing the motor vehicles laws, picked a particular magistrate in the district to present their cases before, it was a very lucrative source of revenue for the magistrate. Even though he honestly tried to hear cases on their merits, he could not help being influenced, and was often influenced to such an extent that a man brought in by the police had a presumption of guilt against him before the trial started. Financial pressure is frequently the strongest kind of coercion.

In order to get rid of these evils, to secure a better class of trial magistrates and to relieve them from the necessity of earning their pay by their decisions, Governor O'Conor's Commission on the Inferior Courts was appointed, headed by former Judge Hammond Urner of this Court. This Commission prepared for the Legislature of 1939, the Trial Magistrate's Act which was eventually passed by Chapter 720 of the Acts of that year, and which is codified as Sections 93 to 114, both inclusive, of Article 52 of the Annotated Code. Under this Act a justice of the peace was to be appointed for every election district in each county of the State, but only certain of these magistrates, varying in number in the different counties, were to be trial magistrates with the power to try cases. The other magistrates were to be only committing magistrates, and their compensation was fixed at the yearly sum of $20, except that in three counties they were to receive $50 a year. The number and salaries of the trial magistrates varied, depending on the size of the county. Thus Baltimore County had 14, Charles County had one, and Carroll County, with which we are concerned in this case, had two. One of the latter was to sit in Westminster and receive an annual salary of $2,400. The other, called the roving magistrate, was to sit at five separate towns, not less than one day or part of a day each week, and he was to receive a salary of $1,200.

The conditions in each county were so different that it was impossible to have a law fixing the same number of trial magistrates in each county with the same salaries. The Legislature not only recognized this by the differing numbers and amounts it fixed, but it also recognized its own fallibility in these respects, and gave the County Commissioners of each County the right to increase the salaries, not only as to trial magistrates, but as to the committing magistrates. This provision is in Section 103 of Article 52 and reads as follows: "(Minimum Salaries Only.) All salaries herein provided shall be considered minimum salaries, * * * and may be increased at any time by the County Commissioners from county funds; and the County Commissioners are specifically authorized to add to the compensation of such other justices as may act as committing justices for the trial magistrates in proportion to the amount of work such other justices may be called upon from time to time to perform." It will be observed that the authority is to increase or add to the minimum salaries fixed. This is, of course, subject to the constitutional provision contained in Section 35 of Article 3, that the salary or compensation of a public officer may not be increased or diminished during his term. See CountyCom'rs of Calvert County v. Monnett, 164 Md. 101, 164 A. 155, 86 A.L.R. 1258 (County Treasurer) and County Com'rs of AnneArundel County v. Goodman, 172 Md. 559, 192 A. 325 (States Attorney). Both of these cases were cases where the County Commissioners attempted to reduce the salary of a County officer during his term, and their actions were held void as against the constitutional prohibition.

The County Commissioners of Carroll County after a previous increase in 1943 had, in 1945 increased the salary of both trial magistrates, making the Westminster Magistrate's salary $2,820 and making the roving magistrate's salary $1,920. In 1947 it was attempted to have only a single trial magistrate, whose salary should be $3,000. A bill to that effect was passed by the Legislature, but was vetoed by the Governor on the ground that it was an emergency act which made its constitutionality questionable. The Governor meanwhile had nominated the appellant as the roving trial magistrate and his nomination had been confirmed by the Senate. He had been a trial magistrate for a number of terms and had received the last increased salary since 1945. After his confirmation, but before his term commenced, the County Commissioners passed a resolution attempting to reduce the salary of his office to $1,200 in case the bill providing for a single magistrate was not approved, which was the case.

It is not necessary for us to assume that the County Commissioners had any dislike to the appellant, or that their action was personal to him. It could very well happen that if the County Commissioners and the appointing power were politically or factionally on opposite sides, the County Commissioners by decreasing the salary of a magistrate appointed and confirmed could thereby prevent the acceptance of the office and exercise a veto power over the Governor and over the Senate. If the County Commissioners have such a power it is more than probable that it will, at times, be so used. And its mere existence will prevent otherwise capable men from subjecting themselves to such a possibility. It is an unlikely supposition that Judge Urner's committee intended any such consequences, or that the Legislature, while attempting to improve the caliber of magistrates, would permit the County Commissioners, to exercise political control over the appointees by such possible or actual shifting of salaries. It may be assumed that both the Commission and the Legislature intended to make these judicial officers as far removed from personal and political consideration as it was possible to do.

The wording of the act itself lends color to this view. As we have shown, the words used are "may be increased" and "add to". Nowhere does the Legislature give any power to decrease after the salaries have been increased or added to. To find such power we have to read into the statute something that is not there. Authority should not be implied unless there is an inherent necessity for such implication.

It has been suggested that in times when judicial business is considerably increased (for instance, in war years) it is necessary to raise salaries in order to get proper officers to fill the positions, but when this condition ceases, the salaries fixed will be too large for the work to be done. That situation may occur, perhaps has occurred, but the Legislature meets every two years and there should be no difficulty in amending the statute and again fixing a lower minimum salary. The larger salaries paid for a year or two would hardly impoverish any county.

It has also been suggested that such a construction would permit the County Commissioners to fix a minimum salary over and above that established by the Legislature. That may be so, but it is the Legislature itself which permits it. In any event, such a result need cause no disturbance. The County Commissioners who have charge of the county affairs and whose records are frequently judged by the tax rate they fix, are generally more inclined to reduce expenses than to raise them. It need not be supposed that they would be apt to fix too high a minimum, and there is no reason for becoming alarmed about it. If the minimum which they fix is too large, resort can again be had to the Legislature, which as we have just noted meets every two years.

We should not insert something in the statute, contrary to its purpose, and not found in its words in order to change a condition which will not cause Carroll County any serious financial trouble, and which is, at its worst, temporary only. We should not be alarmed by fanciful suggestions or possible evil to come. If there is any evil to be feared, it is that we have already suggested, of putting the magistrate under the control of the County Commissioners. If we interpret the act as the Legislature enacted it, namely, to fix minimum salaries and to give the County Commissioners authority only to increase these salaries from time to time, that is exactly what the Commission said was intended by the bill when, in its report to Governor O'Conor, made on February 11, 1939, it 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." There is no suggestion in this statement that the Commissioners are to be allowed to decrease the increased salaries after they have established them.

The order should be reversed and the case remanded for further proceedings under the mandamus statute.

Judge Markell is of the opinion that the words of the statute are ambiguous and require construction, but in other respects concurs in this dissenting opinion as a statement of the reasons why, by the true construction of the statute an increase in salary by the County Commissioners operates as an increase in the statutory minimum. See also Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A.L.R. 1243.