Price v. Anderson

Campbell, J., delivered the opinion of the Court. In view of the great public interest involved in the question of the validity or invalidity of the act, entitled: “ An act in relation to the judicial districts for circuit and chancery courts,” approved March 8, 1888, we yield to the earnest request of counsel, and decide it without regard to the manner in which it was raised. The right of the legislature to establish and change j udicial districts at pleasure, and prescribe the time for holding courts in each county is undeniable. If the act under consideration contained a provisi.on that it should not take effect as to circuit judges and chancellors in office during their terms, except as herein expressly provided, and that they should continue to discharge their functions as before in the territory formerly assigned them, during their term, but according to this act as to time, and when their terms of office should end, the districts should be as it provides ; or, if the form of the act was that, as the terms of certain judges and chancellors should expire successors should not be appointed, and the counties composing their districts should be put in other districts, no objection could have been urged to the act. This is the result of the act, in one view of it. It makes no mention of retaining for their terms certain judges and chancellors ; but the constitution silently, by its inherent force, adds to every act of the legislature its modifying influence, and if it is true that it is not admissible for the legislature to dispense with the services of a supernumerary judge or chancellor during his constitutional term, it follows that the constitution adds to the — 419 — act of the legislature the provision above mentioned, and thus supplemented it is free from objection on constitutional grounds. The legislature did not undertake to deprive certain judges and chancellors of their offices. ’ It simply reorganized judicial districts, and prescribed the time for courts. This it had the right to do. It did not usurp executive functions in appointing judges and chancellors. It designated certain ones who should perform duty in the districts newly created. These were already duly constituted judges and chancellors, liable to be put at service in any district the legislature might determine. It is for the legislature to divide the State into convenient districts. It must decide what is convenient. It may reorganize and change them at pleasure. There is no such thing as an unchangeable district, or one unchangeable during a judge’s term, if the legislature determines on a change. No judge has a vested right in a particular district, any more than a district can have a vested right in a particular judge. This was true when judges were elected by. districts. Miazza v. The State, 36 Miss., 613. A fortiori now, when judges are made by the entire State through the governor and senate representing the whole people, the right of the legislature to take counties from one district and add them to another must be conceded. Certainly, duly constituted judges and chancellors to whose districts counties are added are none the less than before judges because of such additions. This applies to many of the judges and chancellors of the State. If it is true that a judge or chancellor cannot be dispensed with, and left unprovided with a district for the performance of his functions, it follows that existing judges and chancellors for whom no districts are provided by the act, are entitled to continue on duty as before in their formerly existing. districts, which, as to them and for this purpose, still exist during their term. This view maintains the validity of the act as to the provisions it contains, and the right of judges and chancellors for whom districts are not made by it to continue in their former districts, regarding the provisions of the act as to time, and thus the act will have effect to accomplish the legislative purpose to rid the State of supernumeraries, hindered for a time in — 420 — part, but soon relieved by mere efflux of time of all obstacles to its complete operation. There is no unconstitutional provision in the act. The objection made is not for what it contains, but for what it omits. If it had expressly made districts for certain judges and chancellors not named in it, not an objection could be urged against it. If as to them their old districts are held to remain, as no new ones were made for them, no complaint can justly be made. The mere fact that the act cannot, because of some obstacle, have full and complete operation at once, is no valid objection to giving it effect as far as can be. Even a permanent hindrance to complete effect of a law is not objection to its having such operation as it can, and, surely, a temporary and transient obstacle cannot be ground for condemning a law. If some express provision of the act was unconstitutional it would not cause the whole to fall, unless the incurable infirmity infected the body of the act, the scheme as a whole. If the trunk is sound a decayed limb will not cause the tree to be destroyed. If a single member is incurably diseased, and the disease is local and not constitutional, only the member should perish, and not the whole body. ■ This is both scripture and good sense. If part of an act be void, and it is not one essential as part of a whole dependent in some degree on it, that will not prevent the operation of the other which is so independent of the rejected part as in no degree to rest on it for support. This distinction pervades the cases,and resolves them all. It is not allowable to enter the field of uncertain conjecture as to the probable action of the legislature, but the criterion of connection and dependence between parts must be applied for the solution of the question. A multitude of cases illustrate the distinction. They are too numerous to be cited, but they rest on the distinction adverted to above. The cases in this state sustain this view, and this is the generally accepted doctrine. In Fant v. Gibbs, 54 Miss., 396, the only question was whether or not Fant was entitled to his salary, and the act of the legislature was held void in so far as it ousted him of Ms office and deprived Mm of the salary, and no farther. The court carefully abstained from any intimation against the full and complete — 421 — operation of the act, as to all else except the “ unassigned officers,” as Chalmers, J., expressed it, and the'opinions of the judges show plainly their view to he that, in every other respect, the law was to have effect. Therefore, if some part of this act was admittedly unconstitutional, that would not defeat it, unless it was such an essential part as to make the other incomplete without it. But, as said before, no provision of this act is objectionable. It is a consequence of the act, something outside of it and not in it, which is claimed as ground to condemn it. It omits something i-fc should have contained, and which, if containedwould remove all objections, it is said. If the constitution supplies the omission, who can complain, and what is the harm? There is perhaps a mistaken notion about judges and chancellors, caused by our experience of one for each district. From that we are apt to' associate judges and districts as made for each other; but the constitution does not so ordain. It requires the appointment of judges of the Circuit Court and chancellors. The State shall be divided into convenient judicial districts and convenient chancery districts. A Circuit Court shall be held at least twice in each year, and judges of said court may interchange circuits with each other, as may be prescribed by law. These are the provisions of the constitution on this subject, and there is no requirement in them of one judge or chancellor for a district. A judge of the Supreme Court for each of three districts is expressly provided for by the constitution; but such language is not employed as to circuit judges and chancellors. The nearest approach to a suggestion by the constitution of a judge of the Circuit Court having a district or circuit is. in the language: “ The judges of said courts may interchange circuits with each other;” but there is nothing in that to exclude the idea of several judges doing duty in a district! Literally, a circuit is the act of going around. Probably, the sense in which it is employed by the constitution in this connection is, as Webster defines it: “A certain division of a State or country established by law for a judge or judges to visit for the administration of justice ;” and, if so, the existence of several judges in one district or circuit, or whose duty it was to visit it periodi — 422 — cally, would not prevent them from interchanging circuits with each other, as contemplated. Were the Legislature to divide the State into five judicial districts, and provide for ten judges of the Circuit Court, and for each to make an annual circuit, the constitution would not 1 e violated, if judges and districts must coexist; for there would he the convenient districts, as determined by the Legislature, and judges of the Circuit Courts and courts held twice a year, and their circuits, might be interchanged, as provided for by law. Every provision and implication of the constitution as to these courts would be satisfied by this arrangement. This shows the plenary power of the Legislature over the arrangement of districts or circuits and terms. In practice, a judge is appointed for a particular district, because it has been so arranged by statute; but it would not violate the constitution if he was appointed a judge of the Circuit Court under a law requiring any prescribed number of judges, who should itinerate by districts throughout the State in a manner to be provided. Convenient districts are provided for, not with reference to judges, but for other purposes. It may be for interchange of circuits. That is all that is mentioned specially in connection with districts or circuits. It might be deemed desirable that a different judge should appear at every semi-annual term of the Circuit Court. To secure this interchange may have been the whole object of districts. It is for the legislature not only to create districts, but to determine how many Judges of the Circuit Court and Chancellors shall be appointed, and nothing forbids several to perform duty in each district, if the legislature so determines. The primary idea of a judge of the Circuit Court is one to make the circuit prescribed by law, periodically, to administer justice in court. He must have a portion of territory to visit, in order to make a circuit, but that is determinable by the legislature, which might require every judge of the Circuit Courtin his turn to make the circuit of every judicial district in the state. There is no indissoluble connection between a judge and a district. Judges are made by the whole state, for service in districts arranged for convenience, and with a view to interchangeability, and are subject to assignment to duty anywhere in the state. — 423 — They have no vested territorial rights, as against legislative power of change. If a judge is appointed for a particular district, he holds subject to a legislative change of districts, and must conform to it. If a judge and a district must co-exist, it is for the legislature to prescribe his district, and, as he has no vested right, he must take what is prescribed for him. He is a public servant subject to all legitimate commands of the sovereign. Assigned to duty in a particular locality, he belongs there until ordered elsewhere, according to the public exigency. If the judgeship is beyond legislative reach, the field of its operations is subject to control. If the office is inviolable, the place for its exercise is not. Place and time are subject to legislative control, where neither is fixed by the constitution. To deny this is to withhold from the legislature the right to consult and conserve the public interest, in deference to the assumed right or interest of the judge, whereas the public good is the paramount object of constitutional government. The right of the legislature to abolish unnecessary offices, where the number is not fixed by the constitution, must be granted. This may be done by abolishing districts, and thus dispensing with the judges appointed for them, and thus providing that successors shall not be appointed for those districts ; or by expressly declaring that successors shall not be appointed for certain judges. There is no other conceivable way of doing it. It cannot be that too many are to continue, because of incapacity to be rid of them. If the thing aimed at, and done is allowable, the mere form of accomplishing it cannot matter, if the constitution is not disregarded as to manner. The power of the legislature to do what it attempted by the act cannot be questioned. It concluded that there were too many judges of the Circuit Court and chancellors, and with this conviction properly resolved to reduce the number to the needs of the state. The terms of office of the judges and chancellors expired at different times. They had been appointed under the legislative plan of one for each district, designated by number. As said above, if the shape of the enactment was that at the expiration of the term of each judge and chancellor named, no successor should be appointed, and the counties of his dis — 424 — trict should be parts of other districts, not an objection would have been heard to the act as violative of the constitution. But the point made is, that certain judges and chancellors are ousted during their term. But they are not bj the terms of the act, and, if by the constitution they could not be, they are, as to all except time of Courts left just as before. Like a grant of something encumbered, which operates as far as it can, and fully, when the encumbrances are extinguished, this law hindered for a time, on the view taken, will, when the several hindering terms end, have unobstructed effect. But, it is said, the effect of that is to put two judges in one district for a time. There cannot be a doubt of the right to do that. Would any doubt the right of the legislature to meet a public exigency by such an arrangement ? Suppose an eminent judge, whose services were of great value and were properly appreciated, should become temporarily incapacitated tor the duties of his circuit, might not the legislature grant him leave of absence for a year or longer, and provide for the appointment of a judge to perform duty in his district ? May it not create judgeships at large in dependent of particular locality to supplement the services of overworked judges in certain districts ? But, it is said, the purpose or effect of the act is, as to certain judges and chancellors unassigned, to create Emeritus officers, with office and pay and no duties, contrary to the genius of our government. That is not true, if by the constitution they are still on duty in their former districts. Better that, for a little while, when the difficulty will be removed than to perpetuate an unnecessary number of officers. With the wisdom of the action of the legislature we have nothing to do. With conflicts alleged to exist in the act its constitutionality is in no manner involved. If it be true that under it district attorneys cannot attend all the courts in their districts, because of the arrangement as to time for court, that certainly does not go to the constitutionality of the act. It was never before heard of that an act of the legislature should be pronounced unconstitutional merely because of conflict in its details or difficulty in its practical operation incidental to its main purpose. — 425 — We see nothing violative of the constitution in the act, and that ends our functions in dealing with the question.