People ex rel. Ballou v. Dubois

Caton, C. J. The seventh section of the fifth article of the constitution, provides: “ The State shall be divided into nine judicial districts, in each of which one circuit judge shall be elected by the qualified voters thereof, who shall hold his office for the term of six years, and until his successor shall be commissioned and qualified: Provided, the General Assembly may increase the number of circuits to meet the future exigencies of the State.” The fifteenth section of the same article provides: “ On the first Monday of June, 1855, and every sixth year thereafter, an election shall be held for judges of the Circuit Courts : Provided, whenever an additional circuit is created, such provision may be made as to hold the second election of such additional judge at the regular elections herein provided for.” While, by these provisions of the constitution it will be seen the legislature is authorized to increase the number of judicial districts, the constitution itself creates the office of circuit judge in each district, and fixes the term of office of the circuit judges at six years, and till their successors are commissioned and qualified, except in the case of a new district being created, when it provides that the circuit judge for such district shall hold his office only till the next regular election' for circuit judges, and till his successor is elected and qualified. The question is, can the legislature expel a circuit judge from his office by creating a new district, and taking from him the territory which constituted his district? The bare reading of the constitution must convince every one that it intended to prohibit such a proceeding. It was the intention of that instrument to place the judges entirely above and beyond the legislative control or interference,' except by impeachment or address, as provided for in the twelfth section of the fifth article. It is the constitution which creates the office of circuit judge, and not the legislature. All the latter can do is to create new judicial districts, the constitution in advance having created the office of circuit judge for such district. The tenth section of the same article provides, that “ the judges of the Supreme and Circuit Courts shall not be eligible to any other office or public trust, of profit, in this State, or the United States, during the term for which they are elected, nor for one year thereafter.” If the legislature can legislate a judge out of office the next day after he is elected, he must stand disqualified for any other office or trust, of profit, for the remainder of the seven years; while it was the intention of the constitution that he should only be disqualified for one. year after he went out of office, unless he voluntarily resigns, or is impeached or addressed out of office. It is unnecessary now to say whether the legislature may, under the constitution, reduce the number of judicial districts by abolishing one and attaching its territory to others. If it may, then no doubt the office would cease upon the expiration of the term of the judge of such district; but till the expiration of his term, if he conducts himself properly and does not become disqualified, the constitution has not provided, nor has it authorized any mode of expelling him from the office, which is created by the constitution, and which he holds under the constitution. The peremptory writ of mandamus must issue. Peremptory mandamus awarded.