State ex rel. Halsey v. Gaines

McFarland, J., delivered the opinion of the court. The relator was Judge of the Second Circuit Court of Shelby county, his term of office extending by the constitution until the 1st of September, 1878. Before this time, to-wit, on the 15th of March, 1875, the Legislature passed an act abolishing the court from and after the 3d Monday of September, 1875. The validity of this act was contested, and it was contended that the Legislature had no power under the constitution to abolish the court; but upon full argument and consideration, the majority of this court held differently. The act was adjudged to be constitutional and valid, and the court ceased to exist. The opinion of the late Chief Justice Nicholson, in which all the other — 317 — inembers of the court, except Judge Freeman, concur, shows the grounds upon which this conclusion was reached. See The State ex rel. Coleman v. Campbell, MS. The relator has since applied to the Comptroller for a warrant for bis . salary, insisting upon his right to have the same paid until the end of his term, (September, 1878) notwithstanding court has been abolished. The warrant was refused, when the present petition for mandamus was presented to the Judge of the Circuit Court of Shelby county. The writ was granted and made peremptory. The Comptroller has appealed. Much of the argument which has been pressed upon ns in support of the claims, assumes that the former rulings of this court, as to the validity of the act abolishing the court, is erroneous. If this could be maintained, it could not change the effect of the adjudication. The act was solemnly and in terms adjudged constitutional. A peremptory mandamus was awarded to carry the act into effect, by transferring the record to the remaining circuit clerk, and the court ceased to exist. It is true the relator was not a party to these proceedings, nor was he a necessary party. The adjudication is, nevertheless, conclusive, and whatever judgnient may be rendered, it is certain that the court in law and fact ceased to exist on and after the 3d Monday in September, 1875, by the judgment of this court, which cannot now be reversed. So that the relator is in the attitude of claiming a salary as Judge of the Second Circuit Court of Shelby county during a period of time when no such court existed, either in law or in fact. — 318 — In this view it would seem to be unnecessary to re-examine the grounds of our former decision, but entertaining as we do, no doubt of its correctness, we produce briefly the substance of the reasoning of Chief Justice Nicholson, to which we can add but. little. We believe it is not denied that previous to the constitution of 1870, the Legislature did possess the power to abolish circuit and chancery courts at pleasure. In fact the very court in question was created by an act of the 4th of December, 1869, which abolished the system of courts previously existing in Shelby county, and established instead two circuit courts, two chancery courts, and one criminal court, one of the circuit courts being the one now in controversy. With the abolition of the existing courts, the judges thereof were displaced and new judges elected to fill the new counts created bythe act. The validity of this act was recognized by the convention of 1870, and the courts continued to exist until one of them were abolished by the act of 1875, before referred to. This was by no means the only instance in which the Legislature exercised the power of establishing and abolishing courts as the public necessity demands under the constitution of 1834. And in fact we do not understand that it is seriously denied that the power existed, until the adoption of the constitution of 1870. Now the only difference in these parts of the constitution of 1834 and 1870, in reference to the creating of courts, is this: By the constitution of 1834, “The judicial power of the State was vested in one .supreme court,' in such inferior — 319 — courts as the Legislature may from time to time ordain and establish, and in the judges thereof.” By the Constitution of 1870, “The judicial power of this State is vested in one supreme court, and in such circuit, jchancery, and other inferior courts as the Legislature shall from time to time ordain and establish, and in the judges thereof,” etc. The difference is, that in the Constitution of 1870, “ circuit and chancery courts ” are expressly named as some of the inferior courts that the Legislature may from time to time ordain and establish. It will be borne in mind that there is no clause in either Constitution, in terms or by implication, prohibiting the Legislature from abolishing any of the inferior courts after they have been once established. We have seen that under the Constitution of 1834, it was left to the Legislature to determine how many inferior courts was necessary to meet the public demand, nnd to ordain and establish them accordingly, and in so doing to abolish courts previously existing and substitute others in their place, and necessarily to increase and diminish the number at pleasure. The Legislature also had power to determine the character of the inferior courts, whether the circuit, chancery, or other courts. In this latter respect the Constitution of 1870 makes a change. Circuit and chancery courts are specified as some, of the inferior courts, to be established by the Legislature from time to time, and it may be conceded that the two systems are therein recognized, and it may be further conceded that the Legislature has no power to abolish either — 320 — system. But was it ever supposed by the framers of the Constitution that they were depriving the Legislature of the power to judge and determine how many circuit and chancery courts were necessary • to dispatch the public business in the different counties of the State? It was known that under the previous constitution the power to determine the number was left to the Legislature, and if a change in this respect was intended, it would have been easy to so express' the intention in unmistakable language, and surely it would have been so expressed. • The Constitution of 1S70, while it recognizes circuit and chancery courts as part of the inferior courts of the State, does not recognize any particular number of them, or specify how many of them shall exist. But it is said that the power to dispense with one court necessarily implies the power to dispense with another and another until the whole system is destroyed ; that there is no limit and no mode by which it can be determined how many courts may be abolished, and how many shall be left. This argument, which. is apparently plausible, is wholly unsound. The act in question -can in no sense be regarded as an attempt to undermine either system, of circuit or chancery courts. The same act abolished two courts, one circuit and one chancery court, but no different character of inferior courts was substituted in their place. The remaining circuit and chancery courts were deemed sufficient. If any county or section of the State should be left without a circuit or chancery court having jurisdiction of its citizens and property, there might be — 321 — some room for the argument that the Legislature was attempting to abolish these courts; but in this instance there were at the time of the passage of this act, two circuit and two chancery courts in the city of Memphis, each two courts having concurrent jurisdiction over the same citizens and property, and the Judges thereof were elected by the same people, and the abolition of two of these courts left the others in full force, and in the opinion of the Legislature the two remaining courts were sufficient for the public wants. How can it be said that this was an attempt to make war upon either system ? Formerly we did not have a chancery court in every county, several of the smaller counties were consolidated into one chancery district, but the number of courts has multiplied until there is now probably one in every county. If the Legislature should determine to return to the old system and establish one chancery court for several small counties, there could be no objection to it, either in the Constitution or in sound policy — it would probably be an admissible change. Can it be said, that there is no difference in principle between the power to say that one chancery court shall transact the chancery business of two or three small counties, or that Shelby county shall have but one circuit court as other counties instead of two, and saying that there shall be no circuit or chancery courts at all? Ho difference between determining the number of courts necessary, and declaring they shall be abolished ? It is said that it would be impossible to distin322 gnisb between an act, merely intended to reduce the number, and an act which would in effect tend to abolish the system so far as the question of power is concerned, and therefore the power must be denied altogether; that the power to abolish one of the circuit courts of Shelby county, implies the power to abolish them all, and leave the county without any circuit court, having jurisdiction of its persons or property. We think the distinction is very clear. After the circuit court in question was abolished, Shelby county still had a circuit court left, and in that respect was in as good condition as any other county in the State. And the business of the court abolished was transferred to another court of concurrent jurisdiction, the judge thereof being elected by the same people. The system of circuit and chancery courts throughout the State and in every county in the State, remained as perfect and intact after the act as before, and to concede the power to the Legislature to abolish these two courts is by no means to concede the power to abolish the system in any part of the State to deprive the people of circuit and chancery courts for the trial of their causes. It is said, however, that Legislatures might reduce the number to such an extent, as to wholly fail to meet the public wants, and in this way virtually subvert the whole judicial system, and it is argued that therefore the power does not exist. This is an argument often resorted to, and no argument is more fallacious. It assumes that if the power be one, that, the Legislature might abuse, and in its abuse subvert the other departments of the govern — 323 — ment, therefore the power does not exist; whereas, it is certainly true that the Legislature may in many modes, in the exercise of unquestioned power, utterly ruin and destroy the government. It is the argument on the other side of the question, that the Legislature has unlimited power in establishing courts, not only circuit and chancery, but other inferior courts. That body has, therefore, the power to establish a court in every civil district in the State, and support them by taxation, and the people could be as utterly ruined in this mode as by destroying the court. It is true that this is an extravagant supposition, but not more so than that the Legislature may reduce the number of courts so . as virtually to destroy the system. It is easy to suppose that the county may be ruined by two many courts as by too few, and what renders it worse is, that if the calamity supposed, of creating a court in every civil district, should occur, according to the argument, nothing short of a convention could get rid of them. Under the Constitution of 1834, the Legislature cér-tainly possessed what is now supposed to be the dangerous power, but it seems that the State lasted through the period of its existence without experiencing any of the evils now apprehended. The truth is, the Legislature has the power, in many ways, to destroy the government. The remedy, where the Legislature attempts to exercise power it does not possess, is in the courts, but where it simply abuses power that it does possess, the remedy is with the people at the ballot box. — 324 — But it is argued that although by the foregoing-construction, the Legislature may have power to abolish the courts when they become unnecessary, that the abolition of the court can only take effect at the expiration of the judge’s term, otherwise we defeat that clause of the Constitution which says that the judge’s term shall be eight years. If the framers of the Constitution intended to leave it to the Legislature to establish and abolish courts as the public necessities demanded, this was not qualified or limited by the clause as to the judge’s term of office. To so hold, would be to allow the clause as to the length of the judge’s term to overthrow the other clause, whereas we construe the provision that the judge’s term shall .be eight years, to be upon the assumption that the court continues to exist; otherwise we should have to. hold that the court must continue, although declared unnecessary and abolished by the Legislature, simply to secure to the judge his full term and salary. We have pursued this question to an apparently unnecessary length, for the reason that while the argument for the relator is placed upon still other grounds, we think the foregoing is really the only .deliberate question. If we assume that the relator’s office has been abolished in fact and in law, and that the question has been not only so adjudged but rightly adjudged, we do not think it possible to maintain that the Constitution of the State secures to the incumbent compensation during the remaining period of the term after the office had ceased to exist. It is argued that the act abolishing the court did — 325 — not abolish the judgeship — the relator might still be judge, although his court was abolished. Our Constitution does not recognize a judgeship except as the judge is the incumbent of a court or courts which he is commissioned to hold. "We have no supernumeraries, and although while he holds the office he may interchange with other judges and exercise the functions of his office in any part of the State, it can hardly be maintained that the relator has in fact continued to be a judge from the time his court was abolished until his term expired. He does not aver that he has exercised the functions of a judge, and had he done so, his acts would no doubt have been void. The argument is further pressed upon these provisions of the constitution, relating to a judge’s term of' office, his salary and also the mode of his removal. These provisions in brief are, that the term of the 'Circuit Judge or Chancellor is eight years. He shall receive at stated times a compensation to be ascertained by law, which shall not be increased or diminished during the term for which he was elected. Speaking of these provisions, Judge Nicholson, in the opinion referred to, says: “¥e have not deemed it necessary to discuss the bearing upon the case of the provisions of the Constitution which provides for the salaries and term of service of the judges, for the reason that we consider it too clear for argument, that if the law abolishing the courts is valid, the offices and their incumbents necessarily cease and of "course along with them 'their salaries.” “ In our own view of the Constitution/’ — 326 — lie continues, “the judge’s right to his fall term and his full salary is not. dependent alone upon his good conduct, but also upon the contingency that the Legislature may, for the public good in ordaining and establishing the courts from time to time, consider his office unnecessary and abolish it. The exercise of this power of the Legislature is neither such as interferes with the independence of the judge or with his term of office or can be properly complained of.” We approve and adopt this language. The judge’s term of office is eight years. The-legislature has no power to change the length of his term, either by direct or indirect legislation. His salary cannot be increased or diminished during his. term, and he cannot be removed except in the manner pointed out in the Constitution, or by impeachment, but all this assumes that the office still exists. To dispense with an unnecessary court is not to change his term of judgeship, or is it to affect the guarantees of the constitution as to his salary, nor does it remove the judge from office. The office no longer exists, and of course a removal from an office that has no-existence is not a conceivable proposition. We concede the legislation which indirectly aims to-legislate the judge out of his office before his constitutional term expires, under the guise of changing the circuit or otherwise, would be unconstitutional and void, such is the character of the cases referred . to; but in our opinion this is a wholly different case. This-is simply where two circuits existed in the same county with concurrent jurisdiction, and judges elected by the — 327 — people; one of the courts is regarded unnecessary and is abolished. ’ These provisions of the Constitution were-intended for the protection and benefit, not of the judge alone, but of the people, to secure a judiciary free as far as possible from improper influences, and therefore the term is fixed. The salary to be ascertained by law, and not increased or diminished during his term, and he cannot be indirectly removed. But the framers of the Constitution never intended to say by these provisions, that unnecessary courts should not be abolished, or if abolished, that the judges should continue to receive their compensation as before. These provisions of the Constitution as to the duration of the judge’s term and his salary, were intended to be of no higher sanctity than the other provisions. They are parts of the same Constitution under which the Legislature is expressly given the power to ordain and establish courts from time to time, and, as we have seen, to abolish them. The different parts of the Constitution are to be construed together. While the courts existed, these provisions should be enforced in favor of the judges and the people, but where the courts were abolished, to continue them in force in favor of judges after they had ceased to be judges,, would, we think, violate the spirit of the organic law, and out of too tender a regard for the supposed rights of one man, injure the rights of the balance of the-people. The question at last resolves itself into this, was-the relator a judge of this State from the third Monday of September, 1875, until 1st September, 1878. — 328 — That he was not, seems to us very manifest, and if not, he is not entitled to a salary. Much has been said as to the necessity of maintaining the independence of the judiciary, especially to maintain the courts free from legislative interference. There are provisions of the Constitution intended to promote in some degree the independence, and those provisions should be upheld, but independence in fact is “ a fiction of law.” While the Legislature cannot rightfully subvert the judicial department, it possesses many powers against which the courts have no protection, except the integrity of the Legislature itself and the people. The- taxing power belongs to the Legislature, and if that body refuses to levy the necessary taxes to support the government, the court-s would be powerless. Many authorities have been referred to, some of which we have examined, among others the case of The Commonwealth v. Gamble, 62 Pennsylvania, 342. In that case the judge was elected and commissioned for the 29th circuit, composed of the county in which he resided. The Legislature afterward undertook to transfer this county to another circuit, and to the jurisdiction of another judge, elected by a different people. The court held that this could not be done, under the Constitution of that State, not very different from ours, but Chief Justice Thompson expressly says that where the office has been abolished, there can be no incumbent; that a judge cannot exist without a court. It is not necessary that we question — 329 — the correctness of this decision, or criticise the argument of the opinion. In the case of The State of Missouri v. Draper, 50 Mo., 355, an act of the Legislature redistricting the State and creating additional judicial circuits, changed the number of the 15th to the 29th circuit; it was composed, however, of the same counties. It was held that the judge of the 15th circuit previously elected and commissioned was not thereby displaced. To this we give our entire assent. The judge, however, said, whether by abolishing the circuit the Legislature could abolish the office, was not the question. The discussion was put mainly upon the ground that changing the number did not change or abolish the circuit. The case of The People v. Templeton, 12 California, decides simply the term of a-judge fixed by the Constitution applied to a judge elected for a new county after the general election; that the Legislature could prescribe the time of electing a judge for such new county, and when his term of office should begin, but the Constitution fixed the length of the term, and they could not be changed by the Legislature. As to the case of Fount v. Gibbs, 54 Mississippi, 396, we will not undertake to review or criticise it. There is nothing in the reasoning to change our conclusion, and the same may be said of The People v. Davis, 28 Illinois. While there is much in the reasoning of some of these cases boldly maintaining the integrity of the judicial department against legislative interference, they do not seem to us sufficient to authorize us to over — 330 — rule our own decision and adjudication upon this very case, supported, as we think it is, by the soundest reasons. The judgment will be reversed and the proceeding dismissed.