LOUIE E. GAY, Appellant,
THE CITY OF GLENDALE, a Municipal Corporation, W. E. KALAS, Mayor of the City of Glendale, Arizona, and F. S. HEATWOLE, J. D. LYNCH, J. A. MILLER, W. F. MOORE, J. E. SMITH and JOE WHITNEY, as Individuals and as Members of the Common Council of the City of Glendale, a Municipal Corporation, and CLARENCE HAMMERBACKER, as Clerk and Treasurer of the City of Glendale, Arizona, a Municipal Corporation, Appellees
On motion for rehearing on appeal from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Rehearing denied.
For original opinion see ante, p. 207, 16 P.2d 971.
Messrs. Gillum & Locke, for Appellant.
Messrs. Cunningham, Carson & Gibbons, for Appellees.
We have considered carefully all the points raised by appellees on their petition for rehearing and see no reason for departing from our conclusions stated in the original opinion herein, [41 Ariz. 266] ante, p. 207, 16 P.2d 971, handed down December 12, 1932.
We think, however, the statement "that the granting of compensation to any officer after he has commenced to serve the term for which he has been chosen, when no compensation was provided by law before he assumed the duties of his office, is an increase of compensation within the constitutional provision above cited" was perhaps too broad and may lead to confusion in the minds of salary fixing bodies as to the extent of their power. For that reason we explain more fully the application of the rule and its limitations.
Counsel for appellees have cited to us many cases which they contend justify the conclusion that the "granting of compensation . . . when no compensation was
provided by law" is not an increase within the constitutional provisions similar to section 17, part 2, article 4, of our Constitution. These cases are Purcell v. Parks, 82 Ill. 346; County of Crawford v. Nash, 99 Pa. 253; Shearer v. Flannery, 68 Cal.App. 91, 228 P. 549; Harper v. Board of Commissioners, 54 Okl. 545, 149 P. 1102, 154 P. 529; State v. McDowell, 19 Neb. 442, 27 N.W. 433; Rucker v. Supervisors, 7 W.Va. 661; Gwynn v. McKinley, 30 Cal.App. 381, 158 P. 1059; State v. Harper, 33 Okl. 572, 123 P. 1038; James v. Duffy, 140 Ky. 604, 131 S.W. 489, 140 Am. St. Rep. 404; Stone v. Pryor, 103 Ky. 645, 45 S.W. 1053, 1136; Arnold v. Sullenger, 200 Cal. 632, 254 P. 267. We both read and considered these cases before rendering our previous decision and were of the opinion they were not in point.
In County of Crawford v. Nash, supra, for example, it is held that the limitations of the Pennsylvania Constitution regarding increases of salaries apply only to laws passed by the General Assembly. [41 Ariz. 267] This is directly contrary to the rule laid down by us in State Consolidated Publishing Co. v. Hill, 39 Ariz. 21, 3 P.2d 525.
While many of these cases do state flatly that the fixing of a salary when none previously existed is not within constitutional inhibitions like ours, the true principle on which most, if not all, of them were decided, is stated in substance in the case of Gwynn v. McKinley, supra, as follows:
". . . The constitutional provision in question is founded in good sense and justice, but it cannot justly be so construed as to prevent the Legislature from supplying a manifest ellipsis in the law -- to correct an obvious inadvertence whose result, if permitted to remain uncorrected, must be to hamper in no inconsiderable degree the proper administration of public affairs under a system established by the people themselves through their Constitution. There is nothing in the Constitution implying that persons performing public services shall not be compensated, and adequately compensated, therefor. On the contrary, that instrument contemplates that all public servants shall be justly compensated for their public services. . . . The Constitution has, save in an exceptional instance or two, committed to the Legislature the duty of making provision for such compensation, and, where that body fails wholly to do its duty in that regard, it must be assumed that the omission has been due entirely to an oversight or inadvertence. To hold it to be true, then, that in such a case an act, whose purpose is merely to correct the inadvertence and so provide for compensation -- provide for something which therefore had not existed -- amounts to an 'increase' of compensation within the import of the constitutional provision in question would be to give to that provision a most unreasonable construction or a construction from which most unjust consequences would follow, where the Legislature had failed to do its duty in that regard."
In other words, if through inadvertence the salary fixing body has failed to fix any salary when an office [41 Ariz. 268] is first created, and the obvious intent and purpose of the law creating the office is that the incumbent should receive a salary, such body may once, and once only, fix compensation for the officer, even though it be done during his term of office, but cannot thereafter change the compensation so that the change takes ...