Pennsylvania Advisory Opinions December 09, 1910: AGO 2

Advisory Opinion Text

SALARIES OF ASSOCIATE JUDGES .

Section 31 of the Act of April 9, 1873, P. L. 3, providing that each associate judge shall receive, in lieu of the salary now allowed by law, $5 per day for every day he may be employed in the discharge of his official duties, provided that the salary of no associate judge shall be less than $300," must be construed with reference to the Acts of May 20, 1857, P. L. 612, and April 11, 1866, P. L. 75, providing that the salaries of associate judges should be measured by the time of their attendance at court, and in settling their accounts, the auditor-general should allow each judge for at least sixty days' service per annum, at $5 per day, and an additional sum of $5 per day for each day in attendance at sessions of his court over and above said minimum allowance of sixty days. An associate judge cannot claim $5 for each day upon which he happens to execute a paper.

Hon. A. E. Sisson, Auditor General, Harrisburg, Pa.

Sir: This Department is in receipt of a communication from your Department, enclosing the requisitions made by Hon. James L.Vose upon you, as Anditor General, for compensation for services rendered by him as one of the Associate Judges of Wyoming County for the quarters ending May 3lst and August 31st, 1910, respectively, which requisitions are accompanied by accounts giving the dates and items upon which the claim for compensation is based. Your communication is also accompanied by similar requisitions from Hon. George D. Vaughn, the other Associate Judge of Wyoming County, and by requisitions from certain other Associate Judges in the State. You ask to be advised as to the proper basis upon which to make settlements of these accounts against the Commonwealth.

These claims for compensation are presented under the 31st Section of the Act of April 9, 1873 (P. L. 12). This section is one of the sections of the General Appropriation Act for that year, but contains the legislative provisions under which the Associate Judges of this State now receive their compensation. Section 31 of said Act reads as follows:

"For the payment and mileage of the associate judges of the courts of this- Commonwealth the sum of fifty thousand dollars, or so much thereof as may be necessary; each associate judge shall receive in lieu of the salary now allowed by law five dollars per day for every day he may be employed in the discharge of his official duties; provided, that the salary of no associate judge shall be less than three hundred dollars."

It is unnecessary for our present purpose to take up the different accounts in detail, as all of the requisite facts can be ascertained from an examination of the account presented by Judge Vose for the months of March and April, 1910. For the months of March compensation is claimed for twenty-seven days service at $5.00 per day, or $135.00. As I understand the communications submitted with your request, the dates upon which services are claimed to have been rendered and the nature of these services during said month of March are as follows:

On March 1st Judge Vose took the affidavit of Dr. Bardnell to some statement at chambers. This was the only service on March 1st.

On March 2nd Judge Vose, at chambers, administered the oath of office to a poor director.

On March 3rd he took the affidavit of ........ Brown to some paper or statement, the character of which is not set forth.

On March 4th, 5th and 7th similar affidavits were taken, one on each of said days, and' the taking of these affidavits constituted the only service rendered during said three days.

On March 8th Judge Vose awarded a subpoena in divorce in the case of Carr vs. Carr, and

On March 9th the affidavit of........Lewis was taken to some paper.

On March 10th a petition for the transfer of a liquor license was presented to Judge Vose and on March 11th and 12th affidavits were made by two individuals to papers or statements of some character before Judge Vose.

On March 14th Judge Vose administered the oath of office to a Judge of Elections; and on March 15th granted a rule of some kind.

On March 16th lie took the affidavit of........Little to a statement of some kind; and on March 17th he granted- a rule in some proceeding.

On March 18th and 19th two individuals made affidavits before Judge Vose to some kind of statements.

On March 21st he approved the bond of a tax collector, and on March 22nd administered an oath.

On March 23rd Judge Vose was in attendance at a session of argument court for Wyoming County.

On March 24th he took the affidavit of a printer to the publication of a legal advertisement; on March 25th approved the bond of a tax collector; and on March 26th and 28th certain individuals made affidavit before him to the contents of certain papers.

On March 29th he administered the oath of office to a councilman; and on March 30th a tax collector's bond was approved.

On March 31st some kind of an affidavit was taken before Judge Vose.

From this recital it is clear that on each one of twenty-six different days in the month of March Judge Vose claims to have rendered one single item of service, for each of which items he claims the compensation fixed by law "for every day" an associate judge is "employed in the discharge of his official duties."

It seems a fair inference from the statements and communications attached to his account by Judge Vose that he claims to be entitled to receive $5.00 from the State for each day upon which he happens to "execute a paper." In explanation of his account for the whole quarter, after detailing the character of the services rendered, he makes the following statement:

"This makes a total of 45 papers which I have executed on 45 separate days as shown by records I am able to find. This leaves 34 papers that I claim pay for in statement for quarter ending May 31st, of which I can find no court record, some of which do not pertain to court business; but are all papers to which I attached the seal of court and supposed I was justified in taking credit for, as that has been the custom of associate judges before me, and also with my present associate, George D. Vaughn."

It should also be noted that Judge Vose was in attendance at court only one day during the month of March, to wit: March 23rd, upon which date a session of argument court was held.

For the month of April Judge Vose charges 26 days at $5.00 per day. During this month he was in attendance at court on eight separate days, and for the remaining 18 days he claims $5.00 per day for the rendition of services similar to those above detailed for the month of March..

Associate judges are to be paid for the performance of judicial duties. During the whole quarter under discussion Judge Vose was in attendance at court only eleven days. Outside of court he seems, during the quarter, to have rendered the following services: He approved 17 bonds of tax collectors, one bond on each of 17 separate days. He also approved the bond of one justice of the peace. He took action on three different days with reference to three petitions for the transfer of liquor licenses. On seven different days he awarded seven subpoenas in divorce. On four different days he granted four separate rules. Five dollars per day is charged for the remainder of a total of 79 clays for the three months in question, because on each of these days someone made affidavit to some paper before Judge Vose.

The account presented by Hon. George D. Vaughn, the other Associate Judge of Wyoming County, for the quarter ending August 31st, 1910, shows that Judge Vaughn claims compensation for 53 days at $5.00 per day. During the month of June he states that he was in attendance at court 7 days, and that he was "at chambers for Attorney Piatt" on 8 different days, and "at chambers for Attorney Keeler" on 2 days, a total «of 17 days. No statement of the nature or extent of the services rendered at chambers at the instance of these attorneys is submitted.

You ask to be advised with reference to the proper basis for the settlement of accounts of associate judges. A review of the legislation governing this question will be of assistance in reaching a satisfactory conclusion.

By the Act of May 20th, 1857 (P. L. 612) entitled "An Act to regulate the salaries of the associate judges of this Commonwealth," it is provided that the compensation of associate judges, outside of the city of Philadelphia, shall be as follows, to wit:

"For those whose attendance at court does not exceed four weeks per annum, the sum of one hundred and twenty-five dollars; for those whose attendance at court exceeds four weeks and does not exceed six weeks, one hundred and fifty dollars; for those whose attendance at court exceeds six weeks and does not exceed eight weeks, two hundred dollars; for those whose attendance at court exceeds eight weeks and does not exceed ten weeks, two hundred and fifty dollars; for those whose attendance at court exceeds ten weeks and does not exceed twelve weeks, three hundred dollars; and for those whose attendance at court exceeds twelve weeks, three hundred and fifty dollars; and for all whose attendance at court exceeds thirty weeks, four hundred dollars."

By the 22nd Section of the Act of April 11, 1866 (P..L. 75), it is provided that each associate judge shall "receive twenty-five per centum in addition to the salaries now allowed by law."

Thus the law remained until the approval of the above mentioned Act of 1S73, by the 31st Section of which (P. L. 12) the sum of fifty thousand dollars is appropriated for the payment of the compensation of associate judges. This section also contains the following provision:

"Each associate judge to receive, in lieu of the salary now allowed by law, five dollars per day for every day he may be employed in the discharge of his official duties; provided that the salary of no associate judge shall be less than three hundred dollars."

In other words, in lieu of paying associate judges a compensation in proportion to and fixed by the number of weeks per annum such judge is "in attendance at court/' the legislature determined that each Judge should be paid $5.00 per day for every day he may be employed in the discharge of his official duties.

In ascertaining what the legislature meant by the words "every day he may be employed in the discharge of his official duties," it is proper to take into consideration the prior legislation above quoted, for it is a canon of construction that "where there are earlier acts relating to the same subject, the survey must extend to them; for all are for the purposes of construction, considered as forming one homogeneous and consistent body of law, and each of them may explain and elucidate every other part of the common system to which it belongs." Endlich on Interpretation of Statutes, Section 43.

"According to an old and well-settled canon of construction, statutes in pari materia are to be construed together; that is, what is clear in one statute should be called in to explain what is obscure and ambiguous in another, and the purpose of other legislation on the same subject should be considered."

P. & L. Dig. of Dec, Vol. 20, p. 34, 966.

Keeping these rules in mind, and looking at all of the legislation on this subject, it is perfectly clear that, by the Act of 1857, the Legislature intended that an associate judge should be paid for the official judicial duties rendered by him while he was in attendance at court, and intended to pay him for such services alone. It was "attendance at court" that entitled the associate judge to his compensation. That act, however, measured the attendance at court by the week and not by the day. Is there any reason to conclude that the Legislature in 1873 intended that associate judges should be paid for any other services than the services they had theretofore been paid for, or for services rendered at any time other than when in attendance at court? Is it not rather more reasonable to conclude that the Legislature intended that associate judges should be paid for the same kind of services rendered under the same circumstances, but that the compensation should be measured by the day instead of by the week? The expression "for every day he may be employed in the discharge of his official duties/' in the act of 1873, is somewhat ambiguous in that it does not specify whether such "employment" is to be in court, or may be outside of, and between, the regular sessions of court. But there is nothing obscure or ambiguous about the language of the Act of 1857, and when the Act of 1873 is read in connection with the Act of 1857, it is clear, in my opinion, that the Legislature intended to provide that associate judges were to be paid only for services rendered by them while in attendance at a session of court for the performance of their judicial duties. Originally the compensation was to be measured by the number of weeks during which the associate judge was in attendance at court, but now it is measured by the number of days during which such judge is in attendance at court.

This conclusion is strengthened by the proviso to the Act of 1873 to the effect "that the salary of no associate judge shall be less than three hundred dollars." Under both acts the compensation of the judge is a salary; nothing is said about fees for executing papers. The Legislature evidently recognized the fact that in some judicial districts court would not be in session for enough days to provide a reasonable compensation, if that compensation were to be measured at $5.00 per day for each day the court was in session, and therefore it provided that each associate judge should be paid for at least sixty days services during the year, whether the court was in session that many days or not.

You are therefore advised that, in settling the accounts of associate judges for their salary, you should allow each judge for at least sixty days services per annum, at $5.00 per day, and an additional sum of $5.00 per day for each day during the year that he may have been "in attendance at sessions of his court over and above said minimum allowance of sixty days.

Very truly yours,

J. E. B. CUNNINGHAM, Deputy Attorney General.