American Decisions, State, ex rel. Gibson vs. Friedley - Justice Dailey.pdf · Rare Periodicals

American Decisions, State, ex rel. Gibson vs. Friedley - Justice Dailey.pdf

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extracted text: might abolisl1 a cil'cuit court, held for a circuit or given Cerritory, and that when the court was abolished the office of judge thereof terminated. Without desiring to be understood as assenting to the conclusion reached in \'hose cases, (to. the reasoning of which we do not subscribe,) and which conclusions, we may remark in passing, were reached by a divided court, and against the weight of many opinions in other states, it is sufficient to say that the case here Jll'esents no such question as that determined l'here. /fhe act of 1875 construed had abolished the court. It did not leave the long struggle for many years previous to secure the independence of the judiciary and the tenure of office of the judges; hence the Consti~ution divides the powers of the state government into three distinct co-ordinate departments, carefully excluding any control of one over anothel'. If the legislature, by a special act, may remove one judge or one prosecuting attorney, it may remove any and all such officials in t'he state, and hence they would be at the mercy of any legislature whose enmity or i\lwill they may have incurred. ::~rtd:~;~eal!h~t:1 puo;::11·s~~~~;!:~.ic:i:nin r~~~!\:sne~ p~:~:g;~e i:~:c1~~ 2 . ID.; LEGISLATURE CANNOT TRANSFER THE ENTIRE CIRCUIT OF ONE JUDGE AND ATTACH IT TO ANOTHER CIRCUIT. - If the general assembly can transfer bodily the entire territory which constitutes the localit.'y in which the judge or prosecuting attorney may lawfully exercise the functions and duties of his office, and attach that territory t'o another circuit, then it can strip the incumbents of their respective offices as effectually as it is possible i'o do so by any words that can be used. It i,s, in fact, . as much a removal of the judge and prosecutor so deprived of all territory as would be a judgment of a supreme court removing either of them from his trust. J;: is not to be assumed that the framers of the constitution builded it so unwisely as to secure to a judge an office and its tenure, and the right to exercise all its prerogatives within a defined locality for a period of six years, if he so long behave well, and by the same organic law int:ended that the general assembly might remove him, at its will, from the exercise of all the privileges and duties pertaining thereto, without a hearing, without a conviction fo1· misconduct, under the guise of "from time to time dividing. the state intb judicial circuits." was left as it existed, except the change made in its official head. He was simply removed by the operation of the act, if it could take effect according to its terms, and another put in his place. I~ cannot be doubted that, if the legislature had said in the act of 1875, as in the act now being construed, that the office of the judge of the Second circuit court should be abolished, and that the court should remain, with like jurisdiction and duties, but that: these should be exercised ·by another officer, leaving the First circuit court also existing with ifs original jurisdiction and duties only, - that such would have been declared void. Nor can iC be doubted that if the legislature should now declare that the office of a given circuit is hereby abolished, leaving the circu·it and its court machine1·y as is, except the r£:mo\•al of the presiding jurige, such act: would be void. If this were not there, the legislature, at its next 6r any subsequent session, might pass a law setting out the circuits and chancery divisions by numbers, and declaring that the office of judge of each be abolished. It is no argument in answer to this to say that t'he legislature will not do this. It is net a question of what they will do that we are now considering; it is a question Of const~tutional power of what it can do. The question as to how such power is ~1·anted, or restn:.int imposed, cannot be determined on foe pro. bability or improbability of it's exercise. If it can abolish in this way the office of county judge, it can abolish the office of :my inferior judge, as all are alike protected or not protected by the clause of the constitution referred to. For the honor of the framers of the Consfitution, 'the best interests of our people, the independence of the judiciary, and the security and . order of our court system against rash and constant experiments of legislation, it offers us much satisfaction to give the constitution it's plain, rational, and unobscrue effect to invalidate legislation of this character, and be able to say that nothing as yet decided by our court stands as. a precedent in the way of our doing so. Rut if there were, it would afford us pleasure to overrule it. The decree is reversed, and bill dismissed with costs. II STATE, ex rel. GIBSON v. FRIEDLEY 21 L. R. A., 634 l. CONSTITUTIONAL LAW; THE LEGISLATURE CANNOT LEGISLATE OUT A JUDGE. - The Constitution of Indiana provides t'hat the circuit courts shall each consist of one judge, that the state shall, from time to time, be divided inCo judicial circuits, a judge for each circuit shall be elected by tho! ·.·oters thereof. He shall reside within his circuit and hold his office for a term of six years, if he so long behave well. The Constitut.fon likewise provides that there shall be elected, in each judicial circuit, by the voters thereof, a prosecuting attorney, who shall hold his office for three years. Held:At .seems beyond the power of the legislature to ll'gi'l11:1.te a judge and prosecuting attorney out of office, and if the legislature cannot by a direct act deprive them of their offices neither can it do so by the indirec;: mode of abolishing their ID.; LIMITATIONS OF THE LEGISLATIVE POWER ·ro DIVIDE THE S1'ATE INTO CIRCUITS.-The division of the state into judicial circuits may be exercised by the legislature, whP.re the act does not legislate judges and prosecutors out of thei1· respective oftices, but not otherwise. The general assembly may add to, or may l'ake from the territory constituting a circuit. It may create new circuits. It may abolish a circuit, / if the act be made to ta.ke effect at, !ln.d not before the expiration of the terms of office of the judge and prosecul'or of such office, as constituted, at the time of the act. The general assembly has the power, at its discretion, to divide a judicial circuit, at any t.~me, during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the restrictions that the Jc1i1;ii:Jature cannot, by any legislation, abridge the official terms of eii'her of such officers, nor deprive either of them of a judicial circuit, wherein he may serve out the constitutional term for which he was elected. DECISION DAILEY, J., delivered the opinion of the court: On the 28th day of August, 1893, i!he relato1· filed an information in the Jefferson circuit court against the appellee Friedley. By the information, it is averred that the relator is a judge of the fourth judicial circuit of t'lie state of Indiana, and that said appellee has usurped and intruded into said office and detains the same from him, although he has demanded possession thereof, and judgment is prayed that the relator may be awarded the possession of said office and all other proper relief. To this information the appellee, in the court: below, filed his answer, pleading especially the authority by virtue of which he holds the possession of said office as judge, as against the said t·elator. To this answer the appellant filed his demurrer, which was overruled, and exception being reserved to the decision of the court. There upon the appellanC filed his ·reply, to which the appellee demurred, the de-murrer being sustained and an exception reserved on the part of the appellant. The appellant standing by the reply and declining to plead further, judgment was rendered in favor Of the defendant, from which the relator prosecutes this appeal. The errors assigned circuit. The authors of our constitution well understood the in this courC are as follows: August 31, 195~ THE LAWYERS JOURNAL 397 1. 'l'hat the answer of the appellee, William T. l"riedley, in the court below, did not state facts su{ficient to constitute a cause of defense. 2. That the court below erred in ovenuling \'he demuner to said appelle's answer. 3. That the court below erred in sustaining lhe demurrer to appellant's reply. It is not disputed that, on the 4th day of March, 1893, Clark county alone consti\.'uted the fourth judicial circuit of the state of Indiana. Elliott's supp. par. 263. And the statute in force provided that the terms of court in said fourth judicial circuit should be held as follows: "On the first Monday in February, the third Monday in April, t.11e first Monday in September and the third Monday in November of each year," tb remain in session while the business of the court required. Acts 1891, p. 68. And at said date the county of Jefferson alone constituted the fifth judicial circuit of the state of Indiana, and it was provided by law that the terms of coun: in said fifth judicial circuit should be held as follows: "On the first Monday in January, the first Monday in April, the first Monday · in September. and the first Monday in November of each year;" said terms to continue in session as long as t.'he business of the court required. On the 4th day of March, 1893, the legislature of Indiana approved an act, which purports to abolish the fifth judicial Circuit and annex territory heretofore constituting t'he fifth judicial circuit, :md change of time of holding the courts in the countries of Clark and Jefferson. The act will be found in the Acts of 1893, on page 359, and is entitled "An act Defining \.'he Fourth Judicial Circuit of the ·State of Indiana, Fixing the Times of Holding Courts in Said Circuit, Prescribing the Limits of the Terms thereof, Providing for the Judge thereof, and Abolishing the Fifth Judicial Circuit of t'he St.ate of Indiana, and Repealing All Laws in Con· flict therewith." Ii will be observed that this title has no reference to or mention nf courts in the fifth judicial circuit. The first s~tion reads as follows: "Be it enact'ed by the general assembly of the state of Indiana, that on and after the first day of August, 1893, thC! fifth judicial circuit of the state of Indiana, which is now constituted of the county of Jefferson, shall be abolished." The second section provides t'hat on and after the first day of August, 1893, the counties of Clark and J efferson shall constitute the fourth judicial circuit of the state of Indiana, as the same is now constituted, shall be the judge of the fourth judicial circuit: of the state of Indiana, as thereafter constituted by this act, and until his successor is elected and qualified. This proceeding was instituted as a frienc\ly one, with a \'iew to testing l'he following question!>: l. What is the legal effect of the Act of March 4, 1893, in view of the !act that the act abolishes the appelle's entire circuit, the term for which he was elect.'ed and qualified not having eXJlired? 2. If the Act of March 4, 1893, is unconstitutional or inoperative in so far as it undertakes to abolish the term for which appellee was elected, viz., from October 22, 1891, to October 22, 1897, will the same still have i'he effect of changing the terms of com·t in the counties of Clark and Jefferson? At t.he time the Act of 1893 was approved, the relator, George H. D. Gibson, was the sole judge of the fourth judicial circuit, and the appellee, William T. Friedley, was the sole judge of the fifth judicial circui~. The appellee ha\'ing declined to recognize the validity of the last-mentioned act of the legislature upon the ground th.at the same is unconstitutional and void, or, at any rate, is inoperative, has conl'inued in possession of said office and in the discharge of the duties thereof in the county of Jefferson, and has declined to surrender the same to the relator. The first question that naturally arises is as to the alleged error of i.~e court on overruling the demurrer to appellee's answer; but as the questions attempted to be raised in all the as>.ignments of error are the same, they may be <lisposed of t.ogether. The answer, omitting the caption and purely formal parts, reads thus: "The said defendant: hereby enters his appearance to the above action, waives the issuing and service of llrocess herein, and for answer to said inf01mution and complaint, says that he, said defendant, is a bona fide resident .of Jefferson county, Indiana, and has been for more than thirty years last past; that he is now fifty-eight.' years old, and has been a voter and elector of said county aforesaid for the last thirty years or more, and during nil of said time he has been eligible to be voted for, and to be elected t.o the office of circuit judge of the fifth judicial circuit of the staCe of Indiana, and eligible to take and hold said office; that prior to the general election of November, 1884, the fifth judicial circuit was composed of the counties of Jefferson and Switzerland, and so continued until February 4, 1891, when Switzerland, Ohio, and Dearborn counties were erected into the fifth judicial circuit; ThaC on the 28th day of February,_ 1889, the county of Clark alone was created the fourth judicial circuit, and the relator was elected circuit judge of said fourtl] judicial circuit by the electors of Clark county alone, on the-day of November. 1892; that this defendant was duly and legally elected circuiC judge of the fifth judicial '7ircuit on the 4th day of November, 1884, for the term which was to commence on the 22nd day of October, 1885; that he was duly commissioned for said term, qualified and entered upon the discharge of the duties of said judge as aforesaid, and served the full term t'hereof; that he was again a candidate for election to said office of circuit judge of said fifth judicial circuit, at the general election held November, 1890, and had no opposition, and was the only pen:on voted for to fill said office; that there were cast 2894 votes in Jefferson county, and 2100 votes in Switzerland count)' for Judge of the fifth judicial circuit of Indiana, at said election, and he received all of said votes so cast, and was duly elected circuit judR"e of said fifth judicial circuit of Indiana, at said election, fur the term of six years, commencing October 22, 1891, and ending Odober 22, 1897; that said dPfendant accepted said ofCice and comn1ission, and took th(' oath of office, which is indorsed on his commission, ~.nd a certified cony thereof was forwarded to the secretary of state, and by !iim filed in his llffice. to wit, Nov .... , 1890; that at the expiration of defendant's first term, he enh:red upon the discharge of the duties 'Jf tlw office aforesaid, :lnd has tl'ied to discharge th<> duties of said trust to the best of his skill and ability; that: he accepted said office in good faith, and entered into the possession of it peace~bly and as a matter of right, and has not forfeited, surrendered, nor resignf'd the same, but is si.'ill acting in the capacity as aforesaid. And he says that, at all timPs, he has discharged said duties of cil'cuit judge as aforesaid, within the bonds of Jefferson county, Jndiana, since it alone has been created into a circuit, and that at no time has he al'tempted to exercise any of the duties of the judge of the Clark circuit court <..the fourth judicial circuit) since the relator has been jurlge as aforesaid. The defendant further avers that by an act appro\·ed March 4, 1893, the legislature attempted t'o abolish the fifth judicial circuit aforesaid, and consolidated Jef·ferson and Clark counties into the fourth judicial circuit, and pro,·idcd that thP judgC> of the fou1·til judiC'ial cil'<'uit Cof Clark county) should diS<.'harge the duties or circuit judge in t.he cit·cuit court attempted to be formed by said act, <to wit. in the C'lUnties of Jefferson 2nd Clark:) And they further provided that said act shoulrl. not go in\'o effect until the first day of August, 1893. The defendant avers that said legislatur~ uttel'iy failed to provide by said act any circuit or county for defendant, in which he could exercise the functions of said office of circuit judye, or in which he could discharge the duties thereof, and attempt'ed by said act to deprivC> him of hi!!! vested right to said office and its functions, in violation of the constitutional rights of the defendant, THE LA WYF.HS JOURNAL August Sl, 1964 which he had by virtue of said election, commission, and acceptance of said office and constitutional guarantees in reference thereto. The defendant says that: the sole and only cause of complaint which the relator has against the defendant is, that the defendant has exercised the duties of circuit judge within Jefferson county Conly) since the first day of August, 1893, claiming t'hat such duties in said court devolve upon him, relator, by virtue of said Act of March 4, 1893, and said actions of this defendant arc the same wrongful and unlawful acts of usurpation and intrusion into relat:or's office complaineci of, und none other. The defendant says t.hat tis to all other matters in said infonnation and complaint, not controverted in this f."H'llgrapll of U1e f!.nswer, hC' denies. He further says that sri.id relator is assuming that he is the proper person to discharge ihe duties of circuit judge within J efferson county, Indiana, and that defendant is not, and that by reason of said assumption, a cloud has been cast: upon the title of defendant to said office and the functions th<!rcof. Wherefore, he askerl that the relator take nothing by this action; that said Act of March 4, 1893, be declared and ruljudged void; that defendant's title to said office be quieted to him, and for all other proper relief as may be equitable and just." In order to determine t-he sufficiency or insufficiency of this answer, an inquiry is involved as to what is the legal t>ffect- of t he afore1'aid Act: of Mal'ch 4, 1893. It is conceded by thC appellant that., unless thP. said act was a valid and legal enactment, and became operative from and after the 1st of August, 1893, the relator's claim to the office of judge, in so far as Jefferson county is _ concerned, is not well founded. On the contrary, iC is conceded by the ~ppellee that his title to the office of judge of said court is based upon his previous election thereto, and the claim upon his part that the Act of March 4, 1893, is unconsi'itutional, or at least that the same is inoperative during the term for which he was elected. The judge and prosecuting attorney are constitutional officers. They are also designated in the organic law, and are neither stat'c nor county officers. The Constitution, (art. 3, Rev. Stat. 1881, par. 96) separates into three departments the powers of the state government as follows: legislative, executive, including ad· ministrative, and the judicial. Article 7 of the Const'itution, <Rev. Stat. 1881, par. 161,) vests the whole judicial power of the state in the supreme court, in circuit courts and in such other courts as the general assembly may es\'ablish. Section 168, Rev. Stat. 1881 , provides that the circuits courts shall each consist of one judge. Section 169, Rev. Stat. 1881, is as follows: "The state shall, from time to t ime, he divided into judicial circuits, and a judge for each circuit shall be elected by i'he voters thereof. He shall reside within his circuit, and shall hold his office for the term of six (6) years, if he so long behave well." Section 171, Rev. Stat. 1881, reads: "There shall be elected, ir. each judicial circuit, by the voters thereof, a prosecuting attorney, who shall hold his office for two (2) years.'' Section 172, Rev. Sta~ 1881, reads : "Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may; on information in the name of the state, be removed from office by the supreme court!' Section 173 provides that the compensat:ion of the judges of the supreme court or circuit courts shall not be diminished during their continuance in office. The first section of the act in controversy abolishes in express terms the fifth judicial circuit of this state, which circuit: the section itself declares to he composed of the county of J efferson alone; ne-cessat'ily having a judge to preside over its courts, and a prosecuting attorney to 1 irosecute the pleas of tlte sl!ate therein. The other four sections are builded upon the validity of the first section. If :~:ti!~r:ta::c~ii:;w~: ~;i~~11~s~:~:I ~;~n:0~~~ ~:~~r a!~ ~~: ~e~:~ lature to legislate a judge and prosecuting attorney out of office, and if the legislature cannot by a direct act: deprive them of their offices, :neither can it do so by the indirect mode of abolishing their circuit. Section 17i, s11pra, which pr".lvides that judges and prC'-> fecuting attorneys may be removed from office by "conviction for conuption or other high crime," defines a plan which in itself involves a trial, a hearing by the accused, a day in court, and then the removal <'II information in the name of the state may be adjudged by the Supreme court. Thii; r.ection, however, providci;, t hat 1\ removal may be effected in such othe1· manner as m~y be: provided by law . But the state has thus far failed to pro,•ide any other manner than the constitutional mode. The legislature, under this latter clause, we think, has t he power t'o pm11ide for the removal of judges and prosecuting attorneys in some additional or other manner than that prescribed in this constitutional section. It could only do so, however, by enacting a gen· era! law applicable to all judges and. all prosecuting attorneys, and to be valid must provide for a trial, and muse give to the accused a day in court, an opportunity to be heard and make defense, or the act would be unconstitutional for the failure to give the accused such opportunity and right. This clause does not aut'hoxize the legislature to enact a law, removing the judge or prosecutor from office, at its will, without giving him a day in court, Sect.ion 169, i:upru, is the only authority that can be found on which to base the legislative right of remo\'al. Rut to give the first clause of that section such construction would nullify that part of \'he same section which provides that the judge of a circuit, when elected, shall hold his office for a term of six years, if he so long behave well. To eonstrup this section to mean ~hat the legiidature can, at its own will, abolish the circuit, and thus legislate the judge and prosecuting attorney out 'of office, in addition to being in direct conflict wit'h the other provisions of our organic Jaw, would also put the official life of every judge and every prosecuting attorney ·of the state at the mercy of the legislature. It would subject the judiciary to the legislative power, and ui.'terly destroy all judicial independence, Judges and prnsecutors would be at the whim or ~~c~~i~1~: ~~~h::at~;s 0~~d c::~~;::~~:ti::1/nu!~:~:t!:~urt~eof10:f; struggle for many years previous to secure the independence of the judiciary and the tenure of office of the judges; hence section 90, supra, was enacted, dividing the powers of the state govern· ment into three distinct co-ordinat'e departments, carefully excluding a ny control of one over another. If the legislature, by a speci1\l act, may remove one judge or one prosecuting attorney, it may re- , move any nnd all such officials in the state, and hence they would be at i.'he mercy of any legislature whose enmity or ill-will they may have incuned. The office of circuit judge, as well as prosecuting attorney is a public trust, committed by the public to an individual the duties and functions of which he is bound to perform for the benefit of the public, and enti\'les him to exercise all the duties and functions of the office, and to take the fees and emoluments belor.ging to it. 2 Bovier, Law. Diet. title, Office. "Officers are required to exercise the functions which belong to their respective offices. The neglect t9 do so m2y in some r,aso.;s subjects the offender to an indictment. 1 Yeates, 519." There cnn be no such thing us a11 office without responsive duties and functions to be performed by the officer. It is not the mere riRM to receive an annu~ compensation without the exercise of any corresponding duties. '1f the genernl assembly can transfer bodily the entire l'erritory \i1hich constitutes the locality in which the judge or prosecuting attorney may lawfully exe:rcisc t he fnncti0ns und duties of his office, and attach t.hat territory to another d rcuit, then iC can strip the incumbents of their respective offices as effectually as it is possible to so do by any words that can be used. It is, in fact, as much a removal of t.he judge and prosecutor so deprived of all ~erritory as would be a. judgment of a supreme court remo\•ing either of them from his tl'ust. IC is not to be assumed that the framers of t.he constitution builded it so unwisely as to secure to a judge an office and its tenure, and the right t'o exercise all its prl;'rogatives within a defined locality for a perifld of six years, if he so long behave well, and by the same organic law intended that the general assembly might remove him, at its will, from the exercise of all t'he privileges and dtrties pertaining thereto, without a hearing, without a conviction for misconduct, under tho August 31, 1954 THB LA WYF.RS JOURNAL 899 guise or "from time to time dividing the state into judicial circuits." :s<ich division may be exercised by the legislature, where the ac~ does not legislate judges and prosecutors out o( their respective offices, but not otherwise. The general assembly may add to, or may take from the territory constituting a circuit. It may abolish a circuit, if the act be made to Cake effect at, and not before, the expiration of the terms of office of the judge and prosecutor of such office, as constituted, at the time of the act. This act abolishes the circuit on und after the first day of August, 1893, and therP.fore must be effecCual to abolish the circuit and the offices on the day named, or not at all. As stated, the ::ifficf:s of jurlge and prosecuting attorney of the fifth judicial circuit expire on the 22nd day of October, 1897, and to abolish the circuit, iC must be by law to take effect on the date last named. These positi• )ns '-TC in line with the authorities. 'l'he judges and prosecuting attorneys are noC state, county, or township officers. They are constitutional officers. State \', Tucker, 46 Ind. 359. The case of State v. Noble, UR Ind. 350, 4 L. R. A. 101, fully establishes the independence. of ~he judiciary. 'l'he legislatui·e cannot extend or abridge the term of an office. the tenure of which is fixed by the cons~itution. Howard v. Stnte. 10 Ind. 99, In State v. J0Jmst011, 101 Ind. 223, which was also an infonnation in the nature of a quo warranto filed by the appellant's relater, Howard, against the appellee, it is decided by the court that the 2'eneral assembly has t11e )lower, at its discretion, to divide a judicial circuit, at any time, during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the re~tric tions that the le2'islai'ure cannot, by any legislation, abridge the official terms of either of such officers, nor deprive either of them of ' a judicial circuit. wherein he may serve out the constitutional te1·m for which he was _ elected. This ruling is upon the theory that: it' is declared and ordained otherwise in section 9 of article 7 Of the State Constitution, section 169, s-u1>ra. Jn Hoke v. Henderson (N.C.) 25 Am, Dec, 704, 1wte 1, it is said : "h: is without the power of the legislature to indirectly abolish the office by adding the circuit of the incumbent to another then existing. and this even if it be within the power of the legislature to create new or alter old circui~. for that powe1· must be so exercised as to leave the incumbent his office." That the framel'S of the constitution intended that there should be no abridgment of t'he term of office as fixed by fundamental law, is indicated also by section 176. Rev. Stat. 1881, as follows: "No person elected to any judicial office shall, durin~ the term for which he shall have been elected, be elitrible to any office of trust or profit under the state other than a judicial office." This section appears, in t'erms, to guarantee! to a judicial officer his term as fixed by the constitution. People v. Bull. 46 N, Y. 57 Am. Rep. 302; People v. McKinney, 52 N. Y. 374, 378. "But if the com;titution provides for the duration of an office, l'he legislature has no ·power, e\'en for the purpose of changing the beginning of the term. to alter its duration. Where the constitution has created an office and fixed its term, and has also declared the grounds and mode for removal of an incumbent be!ore the expiration of his term, the legislat'ure has no power to remove or suspend the officer for any other reason or in any other mode." 7 Lawson, Rights, Rem. & Pr. p. 5970, par. 3797. Judges of circuit courts can anly be removed from office by the ordained constitutional provisions. Lowe v. Com. 3 Met!. (Ky.) 2~7. The constitutional provision in respect to tl11! terms and t1:nure Cit office (except as to dul'ation or length of terms) and commissions cf judges and the power of the legislat.'urr, to create new judiciai districts are substantially the same in Pel111sylvania ns in this state. The constitutional provision in the former state wus construed in Com. v. Gamble, 52 Pa. 343. In the opinion, People vs_. Dubois, 23 Ill. 547, is cited, in which the supreme court of lllinois holds that although the creat.'ion of new judicial districts was expressly authorized by the constitution, yet no new districts could be created by which the judge in commission could be deprived of a right to exercise 1..'he functions of his office during the continuance of his commission. The court says: "The question is, can the legislature ex11el the circuit judge from his office hy creating a new district taking from him the territory which constituted his district? The bare reading of the constitution must convince every one that it was intended to prohibit such a proceeding." See also State v. Messmore, 14 Wis. 163. In Com'. v, Gamble, supra, the following propositions are established: "A judge having been elected and commissioned, is by the constitution to continue in office ten years, if he shall beha\•e himself well; its duration is assured to him, subject to be determined only by death, resignation, 01· breach of condition. Such breach cannot be dcCermined by the legislature. but only on trial by the senatfo. on impeachment, or, in case the breach amounted ~o total dic;qualification, perhaps by address of two thirds of each branch of the legislature. A legislative act which empinges on the tenure of judgeit is invalid. The power and jurisdiction of a judge const:itute the office, are of the essence of it, and inseparable from it. The grant of power is incapv.ble of any limitation but that attached to it. The aggregate amount of the duties of a judge in any district may be diminished by the division of his district. Constit:utional grants imply a prohibition of any limit-ation or restriction by legislative autho1·ity." In the last-named case, the reasoning is so clear and strong thal we copy the following extracts therefrom: "The Pennsylvania ' legislature established t.1ie twenty·ninth judicial district by the Act of the 28th o( February, 1868, under which James Gamble was elected and commissioned president judge of the district. By an act passed March 16, 1869, the former act· was repealed and t.he district was abolished The powers, authority, and ju. risdiction of an office are insepara'ble from il:. The legislature may diminish the aggregate amount of the duties Of ·the judge but must leave the authority· and jurisdiction pertaining to the office intact . . I see not how, for anot.'her reason, that the commission of a president judge could exist after the total abolition of his dis· trict. Every judge is elected in and for a district, defined and fixed ' by law, and then he is commissioned, and is 'required by the consti· tution to reside within the district. It seems to me it would be a logical conclusion to hold that, if no district exists to which the judge would be bound to reside, that there -could not ·exist a commission for any 1rnrpose. This I think would be the inevitable deduction from such premises, and it: would therefore follow, that if the legislature could blot out a district, it could limit the duration of Uie commission grnnted to a less period than ten years, if it might so choose. That it: cannot shorten the tenure of the office of a judge, as fixed by the constitution, is certain and this ought to establish tl1ut it -can pisH no act to do by indirection that which may not be doiie direcCly." "Notwithstanding the constitutional provisions i-efet1·ed to, the · legislature- has not only attempted, by the act of the assembly in question, to· expel Judge Gamble from his district, but, in fact, has appointed other judges t'o hold the courts therein, who were heither elected nor commissioned for that purpose. • The legislature hac, undeniably, by this act of assembly, assumed the power of appojntment and removal of the judge ~or the dist'rict. The act displaces Jud,qe Gamble as the president judge, and appoints Judge White and his law associate to hold the court therein. If such a thing can be done in one district, it can be done in all, anQ. thus not only would the independence of the judiciary be destroyed, but the judiciary as a coordinai'e branch of the gvvernment be essentially snnihilated." Applying this reasoning and these fundamental principles to the case under consideration we do not see how the constitutionality of the Acl! of March 4, 1893, can be upheld, as much as we may desire to do so, it being in the interest of economy and retrenchment in public expeditures. But it is enough for this case to say that it was not in force to abolish the fifi'h judicial circuit, not being abolished by the act, is not attached to and made a part of the fourth judicial circuit. The provisions' of the Act of March 4, 1898, changing the t'E!rius of court and the times of holding the 400 THF. LAWYERS JOURN.AL August 31, 1954 same in the counties of Clark and Jeffttson are so interwoven with and dependent upon the other provisions therein that they do not have the effect of changing the terms of court or the t.'imes of holding the same, as provided by law prior to March 4, 1893. In other words, the terms of court and times of holding the same as fixed by the act in question were not intended for the counties of Clark and Jefferson as constituting separate judicial circuits; but were intended for them when both these counties constituted the fourt'h judicial circuit as provided by the act, Judgment affirmed. Ill STATE V. MABRY Supreme Court of Tennessee, Nov. 20, 1943 (178 s.w. 2d 379) l. CONSTITUTIONAL LAW; ACT PURPORTING TO ABOLISH OFFICE OF COUNTY JUDGE INVALID. - Private Act purporl~ng to abolish the office of County Judge by repealing the private act creatin'g the court and undertaking to create and establish a new county court of Clay County and naming a chairman thereof was invalid as an att'empt to defe~t the right of the judge thereto elected and holding office in accordance with the existing law. ~. IBID.; A JUDGE CANNOT BF. LEGISLATED OUT OF .OFFICE. - We cannot close our eyes to the palpable effort to legislate the relater Bailey out of office and substiCute in his place and stead another person who is designated in another private act to pc,rform same official duties. Chapter 53 of the Private Acts of 1943 purports to abolish t.'he office of County Judge by repealing the act that created it. Eight days aftet the repealing act was approved by the Governor the Re-Districting Act was passed in which defendant: Mabry was named as "Chairman of the County Court." The duties of this office were identical with that of coWlty judge under the act which was sought to 'be repealed. The jurisdiction was the same in all respect!. ~· · IBID.; LEGISLATtJRE CANNOT REMOVE A JUDGE BY ABOLISHING THE OFFICE. - The legislature canntit remove a county judge by abolishing the office and devolving the duties upon a chairman of the county court. 4. IBID.; DISTINCTION BETWEEN STATUTE INEFFECTIVE TO REMOVE A JUDGE FROM OFFICE AND STATUTES THAT ACCOMPLISH REMOVAL BY ABOLISHING THE TRIBUNAL. - The distinction between statutes ineffective to remove a judge from office, and statul'es that accomplish removal by abolishing the tribunal and transferring its business to another was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 S.W. 134, 1_ 46, 46 L.R.A. 567. DECISION NEIL, Justice. The rf!!ator J, B. Bailey was re~ularly elected to the office of County Judge of Clay County at the general elect:ion in August, 1942, for a term of eight years. A ce11ificatc of election was accordingly issued to him by the County Election Commissioners. He qualified by giving bond and taking the oath of office. No qu~stion is made as to his qualifications. The office t-0 which re· lator was elected and now holds was created by the General Assembly of this state under Chapter 145 of the Private Acts of 1903. The act prescribed the duties and the jurisdiction of said count'y judge and fixed the salary of the incumbent. It appears that the term of office of relator will not expire until September 1, 1950. The Legislature in January, 1943, passed an act, being Chapter 53 of the Private Acts of 1943, which purports to repeal Chapte1· 145 of the Private Acts of 1903 and to abolish the office of County Judge ·or Clay Comity. At the same session of said Legislatur~ there was enacted Chapter 283 of the Private Acts of 1943, called the Re-Dist'ricting Act, which undertook to abolish the Count.y Court of Clay County and to create and establish a new County Court for said county. The act named the defendant C. J. Mabry as chainnan of said court. The original bill in this case was filed by the relater attacking the const'itutionality of the 1943 act ·upon the ground that said act was unconstitutional and void as it violated certain provisions of the Com;titution of this state. The original bill was filed against defendant C. J. Mabry. The prayers of the bill were that Chapt:er 53 of the Private Acts of 1943 be deela1·ed unconstitutional and void; that an injunction be immediately issued enjoining the defendant from acting or interfering with complainant: in the performance of his official duties as County Judge of said county; that at the hearing the injunction be made perpetual. The defendant filed a demunct· to the bill upon the following grounds: U) that: chapter 53 of the Private Acts of 1943 was a valid and constitutional act and abolished the office of County Judge, now held by the complainant; (2) that the Re·Districting Act, Chapter 283 of the Private Acts of 1943, abolished t.'he County Court of Clay County and created an established a new county cour t for said county, and named the defendant as chairman of , said court in the bill; and that therefore t'he office of county judge was abolished and a new office of County Chairman was created: <3) that because of the two acts, viz., chapter 53 and chapter 283, the complainant had no right to maintain t'his suit and no right to restrain the defendant from acting as County Chairman of Clay County. The cause was heard before the Chancellor, at chambers, by agreement of the parties, upon the demurrer of defendant and mot.'ion to hear same and dissolve the injunction therefore issued upon the fiat of the Chancellor. The Chancellor took the case under advisement and shortly thereafter overruled all the grounds of the . demurrer, holding that chapter 53 of the Private Acts of 1948 was unconstitutfonal and void, and declined to dissolve the injunction. He granted a discretionary appeal from the decree. The defendant duly perfected his appeal and has assigned the following errors: (1) The Chancellor erred in overruling the first ground of defendant's demurrer, which is as follows: " The bill shows on its face that Chapter 53 of the Private Acts of Tennessee of 1943, repealing Chapt'er 145 of the Private Acts of Tennessee of 1903, is a valid and constitutional enactment, and that the effect of said chapter 53 of the Priv"ate Acts of 1943 is to abolish the office of County Judge in Clay County, so t.'hat it results that t.he relater can no longer hold said office which is now non-existent." <2> The chancellor erred in overruling the second ground of the defendant's demuner, which is as follows: "The bill shows on its face that Chapter 283 of the PrivaCe Acts of 1943, which redistricted Clay County, created and established a new County Court in Clay County, named a Count'y Chairman to preside over said County Court to perform and discharge the duties imposed upon a County Chairman by the general law until the next regular meeting of ~he County Court, is a valid and constitn· i'ional enactment repealing by its express terms all laws or parts of Jaws in conflict therewith; and also 1·epealing by implication the Act creating the office of County Judge of Clay County, Tennessee; so that it results that the relater under the t'erms 11.ml provisions of said Act is no longer the County Judge of Clay County in that a new County Court for Clay County has been created t:o be presided over by a County Chairman." (3) The Chancellor erred in overruling· the third ground "If Augu!'t 31, l95"4 THE LAWYERS JOURNAL .;oJ
Date: 1954
Rights