Supreme Court of the Philippines : G.R. No. L-7910. Felisimo Ocampo, Demetrio Encarnacion, Roman Campos, Gavino S. Abaya, Enrique Maglanoc, Maximo Abano, Roman Ibanez, Luis N. De Leon, Eladio Leano, and Jose Bondon vs. The Secretary of Justice, the Solicitor General, the Chief Accounting Officer, and judicial officer, courts, finance and statistics division, Department of Justice [series]

Media

Part of The Lawyers Journal

Title: Supreme Court of the Philippines : G.R. No. L-7910. Felisimo Ocampo, Demetrio Encarnacion, Roman Campos, Gavino S. Abaya, Enrique Maglanoc, Maximo Abano, Roman Ibanez, Luis N. De Leon, Eladio Leano, and Jose Bondon vs. The Secretary of Justice, the Solicitor General, the Chief Accounting Officer, and judicial officer, courts, finance and statistics division, Department of Justice [series]
Language: English
Source: XIX (10) October 31, 1954
Year: 1954
Subject: Judicial selection and appointment; Judicial power; Judiciary Act of 1948; Republic Act 1186; Philippines. Supreme Court -- Officials and employees; Appellate court; Appellate judges; Ocampo Felisino; Encarnacion, Demetrio; Campos, Roman; Abaya, Gavino S.; Maglanoc, Enrique; Abano, Maximo; Ibanez, Roman; De Leon, Luis N.; Leano, Eladio; Bondon, Jose; Philippines. Department of Justice
Rights
Abstract: The article states that in the Constitution, there had been a provision securing the tenure of the office of the judges. Counsel for petitioners claimed that the Republic Act no. 1186 terminates only the classification of the judges and not their office.
Fulltext: SUPREME COURT OF THE PHILIPPINES G.R. No. lr7910 FELICISIMO OCAMPO, DEMETRIO ENCARNACION, I ROMAN CAMPOS, GA VINO S. ABAYA, ENHIQUE MAGLANOC, MAXIMO ABARO, ROMAN IBAREZ, LUIS N. DE LEON, ELADIO LEARO, and JOSE BONTON Memorandum for Petit.loners (Contin11cd from September l ssne) IF REPUBLIC ACT NO. 1186 REALLY ABOLISHES THE OFFICE OF THE PETITIONEHS, THEN SECTION 53 OF SAID ACT IS UNCONSTITUTIONAL BECAUSE IT TERMINATES THE TERM OF JUDICIA L OFFICE IN VIOLATION OF SECTION 9 OF ARTICLE VIII OF THE CONSTITUTION. "The powET that creates can destroy. '' The Solicitor General contends that offices crec.ted by the lCgisJature m:i.y be aholishcd by th~ legi~lature because "the power that ci·eates can destroy." Our answf::r to this argument i~ that it is precisely for this reason-that the legislature may abolish any office created by it-that the Constitution, having in mind . that the main function of the courts and thr reason for its existence is to administer justice----justice whi.::h is the greatest interest of man on earth-thought it wise not to place the court on the same foGtin<; as any other office created by the legislature which may be abolished any time at the pleasure of the legislature. To this end, and to prevent the abolition c;>f courts for the eYil purpose of simply shortening (Jr terminating the office of the judge, the Constitution secures the tenure of office '}f the judges by providing that the members of the Supreme Court and judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years or become incapacitated to discharge the duties of their office. A question vrimae impression is. The question as to whether the Legislature may abolish courts and thereby terminate the tenure of office of i:tcumbent judges has Mt yet been decided by our Supreme Court. This is the first time that it h9.s to decide this issue squarely, and no doubt its decision will go down in the history of our judicial institutions. There is a case brought to the Supreme Court in 1915 i.n which the validity of Act No. 2347 reorganizing courts in the Philippines was raised. It was claimed that said Act was i:".valid because it abolished the Courts of First Inst<mce created by Act No. 136 passed by the Philippine Commission in 1901, and removed the judges appointed under Act No. 136 to preside over the courts created therehy. Act No, 2347 provirled in Section 7 thereof that the Judges of the Courts of First Instance, Judges-at-Large, and Judges of the Courts of Land Registration should vacate their positions on the date when sai<i Act went into effect, and that the Governor-General, with the advice and consent of the Philippine Commission, should make new appointment., of Judges of the Courts of First Instance and Auxiliary Judges in accordance with the provi!'inns of said Act. One of the reasons advanced by the Supreme Court in holding the validity of said Act was that neither in Act No. 136 nor in the Constitution of the Philippines wa:.. there any provision which f ixerl the time during which the Judg~s of the Courts of First Insl.ii.nce of the Islands were entitled to hold such office. We quote: "Neither in Act No. 136, the law organizi,ng the courts of justice in the Philippines Islands, nor in the Act of July 1, 1902, the constitutional law or Constitution of the Philippines, is thet·e any provision which fixes '.>r indicates the time during which the judges of the Courts of First Instance of the Islands are entitled to hold such office, the former Act merely stating in its section 48 that the judge appointed by the Philippine Commission shall hold office during its pleasure.'' (Conchada vs. Director of Prisons, 31 Phil. 94.) Following the reasoning of this Supreme Court above quotcJ, we have it that if in the Philippine Bill, which was th~n the Con.!<tituI THE SECRETARY OF JUSTICE, THE SOLICITOR GENERAL, THE CHIEF ACCOUNTING OFFICER, AND JUDICIAL OFFICER, COURTS, FINANCE ANJ) STATISTICS DIVISION, DEPARTMENT OF JUSTICJ<; Memorandum t0;r Respondent. <Cotlfinued from Se7Jtember Issue) Incidentally, the long quotation (pp. 55-86, Francisco) is the disscutiug opinion of Justice Sn.odgruss fp. 89, Francisco) in the above case nf McCulley \'S. State, supra The majority opinion penned by Justice McA\istcr held - "x x x Construing these sections of the constitution, this court hel<l: Cl) That the legislature has the constitutional poweT to abolish particufar eirmiit and chancery courts, and. t<'.l require the papers and reoords therein to be transferred to other courts, and the pending causes to which they are transferred. The power to ordair. and establish frrm time to time circuit and chancery courts includes the power tv abolish e:ciflting courts, and fo increase and diminish the number. (2) The judge's right to his full term and his full salary is not dependent alone npnn 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 unMC<'?SSary and abolish it. The exercise of this vower by the legislature is not such an interference with the independence of the judge or 'ft!ith his tenure of office as can be complained of. When the court or courts over which a judge presidf's is abc\i.;;hed, the office of the fudge is extinguished and his salary ceases. x x x" <53 S.W. 134, ~t p. 140) The concurring opinion of Justice Wilkes held -" 'x x x If the legislature had the power to enact the law, it must be either because the ordaining and establishing of courts is a le3itimate /egi:;latii•e pvwer, necessarily involving the power to abolish as well as to ordnin and establish, and that the constitution has placed no restrict-ion upon the exercise of this power inconsistent with the action of the legislature in the present ca<;e, or becausc ihe constitution, either expressly or by necessa1·y implication, has- " vested in the legislature the power to ordain and e.;;tablish courts, and that this power carries with it the power of abolishing e.risting courts. It is maintained by the attorney general and counsel for the ;;tate that the act in questi.on is constitutional and valid on both of these grounds, while the counsel for the relators insist that the two courts abolished b:r the act were so guarded and protected by the constitution that, in the exercise of its power to ordain and establish courts, thi!!;'9 two courts could not be abolished.• The court proceeds to discu.-;s the que-;tions involved in a manner at once exhaustive and able, and arrives at a conclusion that the acts were valid and constitutional. x :< x" (53 S.W. at pp. 145-146.) The quotation on pp. 22-23. in Atty. Francisco's Memo as "answer Gf the Solicitor General" is an immaterial citation from the Answer in the Zandueta case, and is not quoted from th<:> answer of tht> undersigned Solicitor General in this case. Counsel for petitioners claim that Republic Act No. 1186 •>n· ly abolished the classification of the judges not theic:" office Cp. 2t3, Francisco). Our answer is best expressed in the explicit provbion <'f Section 3, Rt>public Act No. 1186 which abolished the positior. ... or offices of Judges-at--Larg<" nnd Cadastral Judges and repeal&l SE'ction 53 of Republic Act No. 296. 'l'he district judges were not covered by said Republic Act No. 1186, Petitioners were not nmoved from their offices - Counsel for petitioners claim that the effect cf Republic Act. No. 1186 is t'l remove the petitioners Judges-at-Lal'ge g,nd Cc.d11stral Judges from office and repeatedly used the term "to legis.THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS CCont-inued) tion of the Philippines, there 11ad been a provision securing the tenure of the office of rhe judges as in our presf'nt Constitution, the Supreme Court would not have upheld the validity of the Act in question which in reorgnnizing the Courts of First Instance in the Philippines vacated the cffice of the incumbent judges, The ph1·ase "may from time to time" in the A111erica,n Constitution not incorpornb:d in the Philippine Constitution. The Constitution of the United States provides: "The judicial power ()f the United States, shall be ''ested in One Supreme Court, and in !'luch inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their office during good behavior, and shall, at stated times, receive for their ser· vices, a compensation which sh'.11\ not be dimimshed during their continuance in office.!' <Sec .· 1, Art. III.) Our Constitution, which was patterned after the Americ2n Constitution, provides the following: "The judicial power shall be vt:sied in one Supreme Court an<l in such il1ferior courts us may be established by law." <Sec. 1, Art. VIII.) "The members of the Supreme Court and all judges of inferi.or courts shall hold office during good behavior, until they reach the age of seventy years, or bt!come incapacitated to <lischarge the duties of their offic'e. They shall J"cceive such compensation ss may be fixed by law, which sliall not be diminished during their continuance in oifice." CSe('. 9, Ibid.) Comparing the provision of our Constitution above qootecl. with th!lt of the American Constitution, it will be noticed that while the American Constitution gives :he Congress the power to establish inferior courts from time to time, such is not however thti power that our Constitution grants our Congresa. Why did not our Constitution say; "such inferiClr courts as may from time to time be established by law"? l\f.'ly it not be because the sole intention of the Constitution was merely to create t:. judicia1·y in tho Philippines under the system of government established by the Constitution in lieu of that which existed under the Commonwealth Act; a judiciary that could be said to breathe life from the Constitution itself instead of from prior organic laws? If the intention of the Constitution was that after the judicial system in the Philippines has been created by the Constitution and the Congress,-thc Congress by creating the inferior courts-the Congress shall ~till have the power to establish from time to time inferior courts --would not the Constitution have inserted the phrase from time to time in the prO\'isirm granting th~ Congress the power to estnbJish inferio~ courts, as ~he American Constitution does? Be that as it may, we contend that the power of the C:>ngress lo abolish courts, if at all, it may be implied f1om its power to establish them, must necessarily recognize limitations or restriction:--. Different schoofa of thought. The Americ:in courts are divided on the question of whethe!" the legislature may al;>olish a court n.nd terminate the tenure of office of the judge of such coUl't. Some American courts hold that the legislature may abolish a court because it h'.ls the power to create the same; that such power to abolish a court may be exercised without any restriction at all; and that when a court is abolished any unexpired term of the judge of such court is abolished also. Among the American decisions maintaining such thf'ory is the CherokP.e County v. Savage (32 So. 2d, 803; sec Lawyers Jo urnal of July 31, 1954, p. 360). The other theory is that although the legislature may abolish a court because it has the power to create the same, it cannot however abolish a court when its effect is to terminate the tenur(l of the office of the judge of such court, because t.lie tenure of office of the incumbent judge is protected by the Constitution. 1\IEMORANDUM FOR RESPONDENTS (Continued) late them vut" (p. 40, Francisco), by legislating Qut judges (p. 15, Sebastian) ; Gover11ment's view would legislate them out of office • p. 70, Salazar), to remove "members d the Judiciary by legislative action" (p. 42, Francisco). Our answer is that there is no such removal, because the offices or positions of Judges-at-Large and Cadastral Judges were abolished. In the case of Manalang vs. Quitoriano, 50 O.G· 2515 (p, 18 of Respondents' Answer), peti· tilmers assailed as illegal the designation of respondent as Acting Commissioner of the service as "equivalent to removal of the petitioner from office without just cause." This Honorable Court held that"This pretense can not be sustained. To begin with, petitioner has never been Commissioner of the National Employment Service and, hence, he could n-:Jt have been, and has not been, removed therefrom. Secondly, to remove an officer is to (lUSt hi11t from office before the expiration of his term. A removal implies that the office exists after the ouster . Such is not the case of petitioner herein, for Republic Act No. 761 expreS!!lly 1ibolished the Placement Bureau, and, by implication, the office o( director thereof, which, obviously, caml()t exist without said Bureau. By the abolition of the latter and of said office, the 1·ight thereto of its inc1imb,mt, petitioner herein, was necessarily extinguished thereby. Accoi·dingly, the constitutional mand'.l.tc to the effect that 'no officer or empLoyee in the civil service <lha!I be removed or suspended except for caUse as provided by law' (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neithe.r a removal nor a suspen!!ion of petitioner M:mahng, but an abolirion of his former office of Director of the Placement Bureau, wl1ich, admittedly, is within the power of Congress to undertake b11 le9islatfo11·" (pp. 2517-2518, underscoring supplied.) The Vfl1Ver of Congress to abolish stat11tory co1trts - Under the second proposition in lhe memorandum of Atty. Francisco, he mentions three schools of thought (p. 52, Francisco> , namely: l. Theory of absolute and unrestricted power of the Legis-lature to abolish courts, (p, 54, Francisco.\; 2. The Legislature may abolish courts provided it is not motivated by bad faith, (p. 86, Francisco); and 3. The Legislature -does not have the power tf' abolish courts when the intent is to terminate office of the incumbent jmlges. <p. BG, Francisco) Counsel for petitioners argue that the established independence of 1he Judiciary and the tenure of office is "a limitation upon the power of the Legislature to abolish courts" (p. 88, Francisco). Our position is that the power of Congress to abolish inferior courts is expressly granted by Article VIII, Section 1 of the Constituiivn, which reads: "ARTICLE VIII, SECTION 1.- The Judicial Power shall be vested in one Supreme Court and in such inferior courts as may be establi;;hed by law." - While the Constitution equally provides for the judicial tenure of office under Article VIII, Section 9, such tenure only lasts ''during their continuance in office and their compensation as may be fixed by law" (pp. 38-40, Respondents' Answer). The statement that the power of Congress over statutory courts is "a general legislative ,,ower and must be considered as circumscribed by the s7iecific c:mstitutional limitatinn" that a judge has definite tenure Cp, 4, Sebastian) cannot be legally correct, because both provisions proclaim basic fundamental principles, which must be harmonized, The concct theory was enunciated by Justice Laurel in his concurring opinion in the case of Zandueta vs. De la Costa, 66 Phil. 615. "x .x x I have a very serious doubt as to whether the petitioner, -- on the hypothesis that the que~tion involved is his security of tenure under the Constitution - c:>uld by acquiescence or consent be precluded from raising a question of pubOctober 31, 1954 THE LA WYERS JOURNAL 479 MEMORANDUM FOR PETITIONERS <Coutf.nued> Among the decisions holding such theory is Commonwealth v. Gamble '62 Pa. 343; see Lawyer.'! Journal, ibid.) Tlwre is an intermediate theory, which holds that the office of the judge may be abolished by the abolition of the court provided "the office was abolished in good faith. If immediately after the office is abolished another office is created with substantially the same duties and a different individual is appoinb>d, or if it othenvise appears thAt the office was abolished for personal .or political reasons, the courts will interfere." <Garvey v. Lowell, 199 Mass. 47, 8[) N.E. 192, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287, 106 Pac. 695, 19 R.C.L. 236l. Such doctrine is quoted in the decision of the Supreme Court in the case of Bl"illo vs. Enage, G.R. No. L-7115, March 30, 1954. That same doctrine is alluded to in the answer of the Solicitor General which we quote: "* * • As the nrw wurt differs in its organization and jurisdiction from the old, we have no power to say that the abolition of thP court was a S<'heme to turn this man out of office • * *. The act in question is therefore valid." <Wenzler 11s. People, 58 N. Y. 516.) The same doctrine has been aJlplied in the folbwing case: "Appellant conten<ls that the act of 1935 <House" Bill No. 91) is unconstitutional as colorable legislation, passt>d to dil'place him as county judge 01 cl1airman. lnnsmuch as he was not county judge at the ti111e of the pnssage of this act, t!int feature of the attack on it may be dismissed. The office of county chairman was expressly abolished by i,a;<l act. The act creating that office was repealed. The officp of county judgP was created. If the form and structure of the governmental agency created by the act were substantially diff~rent from that of chairman, then said act is valid. At least two change-; arc mad!.: which go to the organic constitution of the offic~ of county judge: Cl) The term ~f <'ffice is changed from one year t<' eight years, and C2l the counl·y judge is to be elected by the people instead of by the quarterly county court. The 6'f'cond of these is clearly fundamental. Haggard v. Gallien, 157 Tenn, 269, 3 S." W. <2d> 364; Holland v. Parker, Hi9 Tenn. :ms, 17 s. w. <2d> 926. " The chnnges made being material and fundamental, it follows that the ::ict is not open t<J the cbjection t.hat it is cclorable legislation adopted to displuce appellant as chairman. Cocrfs. in determining the validity of a statute, cannot inquire int.:i the conduct and motives attributable to memberi' of the General Assembly. Peay v. Nolan, 157 Tenn. 222, 7 S. W. t2d> 810, 60 A. L. R. 408; State v. Linds::;y, 103 Tenn. 625, 53 S. W. 950. [Joseph A. Caldwell, Appt., v. W. D. Lyon et al., 16b Tenn . 607, 80 s. w. \2d> 80. )" Which of these three theories must be adhered to for the benefit of our Republic, which, being young, will likely have to suffer most of the time the onset of political tempf.'::ts? With due i·espect to the wisdom nnd statc3manship of the members of +;he highest com-t of the land, we be~ to state that it is the second theory that slwuld be followed. This theory is more in consonance with reason and tends to protect--not to destroy-the independence of the ju<liciary, which is justly regarded in a great measm-e .e.s the "citadel of the public justice and the public security", in the words of Alexander Hamilton. The thflOT1J of absolute and unrestricted power of the lcgislatwre fo abolish courts. We believe that this theory is unsound because it destroys the independence of the judiciary and the legislature may abuse such power without redress. The arguments of Chief Justice Snodgrass in the case of McCulley v. State, 53 S. W. 134, which have been condensed hereunder*, constitute the best refutation to such theory-· "We come to the question and proceed t..o its considerntion with the elaboration it deserves, for the question is one of the most important that ever arose for final decision in this state and upon * In the original memoraudum theoe argumenu were transcribed ¥Ub•tim. MEMORANDUM FOR RESPONDENTS CContinued> lie interest. Security of trnure is certainly not a personal privile,7e of m1y pal"tic11lar judge. x x x" "The petitioner in his vigorous and impl.'<ssioned plea ai;ks us t0 vindicate the independence of the judiciary and uph.olrl the rnnstitutional mandate relative to the security of tenure of judy , s, embodied in section 9 of Article VIII of the Constitution . He claims that 'Commonwealth Act No. 145 is unconstitutivnal because the regrouping of' the provinces into nine judicial disfricts as therein providr~d for was effected Uy the National Assembly without C(lmtitutional authvrity.' Upon the other hand, the Solicitor-General directs our attention to the power of the legislature over courts inferior t.o the Supreme Court, conferred by section 1 of Article VIII cf the Consti~u tion. I think the constitutiomil issue thus sqi..;a.rely presented should be met courageously by the court, xx x." <p. 625 . ) "x x x Section 2, Article VIII of the Const:tution vest~ in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to C{'rtain limitation!'! in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tepure of ali the judges. The prmciples embodied in these two sections of the same article of the Constituf.!i>n m1.:.st be coordinnred and harmonized . A mere enunciation uf a principle will n<Jt drcide actual casei; and controversies of every sort." (Justice Holmes in Lochner vs. New York, 198 l!-S., 45; Law. ed., 037.) "I am not insensible to thtJ argument that the National AssE:mbly may abuse its power and move deliberately to defeat the ccmstitutional provision guaranteeing security of tenur~ to all judgPs. But, is this the case"! One need not shar<:: the view of Story, Miller and Tuck~r on the one hand, or the opinion of Cooley, Watson and Baldwin 1m the other, to realize tJtat the application of a legal or constitutional principle is necessarily factual and circumstantia l and that fixity of principl1' is the rigidity of the dead and the unprogressive. I do say, and emphatically, however, that cases may arise where the violation of the constitutional provisi.::in regarding security of judicial tenure is palpable and plain, and that legislative power of reorga.nizatirm may be sought to cloak an unco?tstitutional rind fWil purpose. When a case of that kind arises, it will be the time to ma.kc the hammer fall s.nd heavily. But not untili then. I am sati;;fied that, as to the particular point hi::rl! discussed, the purpose was the fulfillment r ~f what was considered a greaf; public need by the legislativ(' department and that Commonwealth Act No. 145 was not e'iacled purpo~·ely to affect adversely the tenure of judges or of a11y particular judi7e. Under these circumstances, I am for snstaining the power of the legislative. clepa"'"lmcnt under the Constitution. -" x x" (pp. 626627,) Unless the legislative power of abolishing statutory oourts is exercised "to cloak L.n unconstitutional and E:V!I purpose," or more sp,..._ cifically "to affect adve!'sely the tenure of judges or of any particular judg-e," tho:! power to legislate on inferior courts must be sns· tuined. In fact, the tenure o..if judicial office must yield to the power of Congress to alte1· or abolis!i inferior courts. "A constitufronal provir:;ion I.hat judges of a certain cc,urt shall hold their offices for five years must yield to another provision that the legislat1t1"e may alter or abolish the (;ourt, and lherefore the legislature may reduce the number of judges by fixing an P.nd to the terms of certain of th0 m although within five years afte1· they took office." <Quoted or. p. 37 of Respondents' Answer.) "x x x If the framers of the Constitution intended to leave it to the legislature to establish and abolish courts as the public necessities demancled, this was not qualified or limited by the cla1rne rtll 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 ovei·throw the other clause, whereas we oonstrue thi' provision that the judge's t~rm shall be eight years to be upon the assumption 480 THE LA WYERS JOU RN AL October 31, 1954 MEMOHANDUM FOlt PETITIONERS <Continued) its determination hangs not only the independence but the existence of the judicial department of the state government, x x x Our government, state and national, is divided into three distinct and independent departments - legislative, executive and judicial. x x x Our constitution, after providing that 'all power is inherent in the people' proceeded to declare how the people would have it exerci!':ed, to distribute into departments and to vest in it such as the 1ieople wished each to exercise and to put upon each the limitation which was deemed essential to confine it within the scope of the authority the people vested and beyond which they intend to restrain, x x x \Vhile, it is sometimes said that the legislature is omnipotent and its authority unlimited except when restrained by the Federal or state constitution, this is only sub modo true generally in the cases in which it has been uttered but it is wholly inaccurate when given the gener!ll application to which its formulation would lead. All that is meant by it is that the legislatur£>s of states of the Union, a s legislative representatives of the people, have ail legislative powt'r, not expressly or by necessary implication limited . Smith 't.'. Normant, 5 Yer,q. 272, 273. x x x " In 1875 it was held that, thcugh true in theory that circuit courts and chancery courts must be maintained, it was .not s.-> in fact, - th£> legislature could :ibolish any it chose. State ex 1 el. Coleman v. Campbell, 3 Tenn. Cas. 355. Of course, if it could abolish any, it could abolish all, a.s it was not anJ is not preten::le<l t.luct any one or more of them enj')yed A special immunity from lf-gislative control. This case was based upon the theory that the power to establish involved necessarily the pnwer to abolish, - A theory wholly inconsistent with lhe constitutional provision for the establishment and continuance of the circuit and chancery court system; for, if one or both is 'established,' it can and 'shall' exist 01· have jurisdiction vested in it under the constitution, and thus be kept. alive and preserved against legisl.:itive power, as a part of the court system, as a constitutional comt; but, if the power to establish includes the power to destroy, such cannot be the rt>sult, an"d there is no protection to either l!ircuit or chanct>ry court system thus recognized and' attempted to be preserved and protected hy the constitution. "That the conclusion of the court in the afore-cited case of State ex rel. Coleman v. Camp~ll. 3 Tenn. C.is, 355, is so incorrect, not to say transparently erroneous, as tc hi" perfectly demonstrRble, appears from the simpl~st statement, If the legislature must preserve circuit and chanc::?ry courts, .:rnd yet may abolish them; if it is true also, :is it constitutionally is, that it may also establish other inferior courts, and vest in them such jt•risdiction aa it chooses, - why could it not abolisl- all circuit and chancery courts, and then establish other inferior courts in whom it might vest all inferior jurisdiction? Who would say, and what k.ut the ccnstitution could say, how many, if any, circuit courtil or how many chancery courts, if any, it should preserve? Ii. i" so clear that the power to establish does not include, as aga;nst this preservative provision of the constitution, the pcwer to destroy any or all of them, that it is wonderful to us that the contrary vi£>w could havt> ever prevailed for a moment, To say nothing of the provisions which make constitutionally the term of all the judges of all these courts eight years, and prevent changing their salaries dur ing tht' the time for which they were elected, it seems sc. manifest that the power to destroy one or all those cou!'t.s when created, is against the preservative clause of the constitution respecting the circuit and chanc<.!ry courts, as only need suggec:.tion tu demonstrate its nonexistence. If the legislature can abolish one, it can abolish all. WhiC'h shall it re-estabEsh, and how can it be required to re-establish, any one of them, if so, which, especially in view of its power to establish other inferior courts and vest them with any jurisdiction it pleases? It is a vain thing to say it can abolish as it pleases, but must retain or recreate the same tribunals. The concession of the power to abolish one, coupl£>d with the declaration of constituti.->nal necessity for the retention of the system, which the court holds in that case must be done, is a patent impmcticability, not to say absurdity. MEMORANDUM FOR RESPONDENTS (Continued) that the conrt continues to exist; x x x" (McCulley vs. State, 53 S·W, 134.) The co11lention of petitioners is predicated mainly in the case of Commonwealth vs. Gamble, 62 Pa. 343 (p. 102, Francisco; p. 61, Sa.l:n:ar), But the act involved in said case was to "deprive a single.l jud,qr, only of his office.'' "The act displaces Judge Gamble as the presiding judge, and ap]Joints Judge White an<l his law associate to hold the co1irts therein. If such a thing can be done in one district, it may be done in all, and thus, not only would the independence of the judiciary be desti·oyed, but the judiciary, as a co--0rdinate branch of the government, be essentially am~ihilated." <See Lawyers' Journal of J uly, 1954, p. 363.) Admittedly, Republic Act No. 1186 was not enacted to single out any particular judge Ol" particular judges. lt applied to all positions of Judges-at-large and Cadastrnl Judges. If the ten petitioners had been appointed as District J udges like the other 23 Judges-at-large and Cadastral Judges, whose positions had been abolished, they would not have complained against Republic Act No. 1186. In fact, this case would never have been filed. But petitioners were not appointed by the President in the exercise of his sole prerogative of executive appointment. Hence, the complaint of the petitioners should be directed not so much against Congress in abolishing the positions of Judges-at-large and Cadastral Judges, but more so, and in particular, against the Chief Executive in not having appointed them as District Judges. (1>. 20, Respondents' Answer) Moreover, the case of Commonwealth vs. Gamble, supra, which is inapplicable to the instant case, because it singled out a judge, was not followed in the case of Aikman vs. Edwards, 30 L .R.A. 149, 42 Pac. 366, wherein the Supreme Court of Kansas discussed the decision of Commonwealth vs. Gamble, and held that-"x x x It is contended that the judicial department is coordinate with and independent of the legislative, and that, if the right of the legislature to dest·roy a judicial district, and thereby l1Jgislate a judge out of office, is rccogrfr~ed, the iTidependence of the judiciary is destroyed, and the legislative will become dominant over the judicial department of the government. In support of this contention it must be conceded that cases closely in point, decided by eminent courts, are cited. Amo11g the strongest m.ay be 11'tentioned Com. v. Gamble, 62 Pa. 343, 1 Am. Rep. 422; State v. Friedley, 135 Ind. 119, 21 L.R.A. 634; People v. Dubois, 23 Ill. 547; and State v. Messmore, 14 Wis. 177. We have carefully weighed and considered these authorities, and recognize their full force. While the reasoning of courts in these cases is appiicable t.o the one now under consideration, we may remark that in each of the cases mentioned the court had under consideration an act of legislatnre which would deprive n singled judge only of his o!fice, if valid. In this case the legislature had under consideration the rearrangement of the judicial districts covering a large part of the state. Notwithstanding our g!'eat respect for the tribunals by which these cases were decided, and the force of the reasoning by which their decisions are supported, we are constrained· to give a different construction to the provisions of our own Constitution. The provisions in article 3 of that instrument, so far as they affect the matter under consideration, are as follows: "'Sec. 1. The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other conrts inferior to the supreme court as may be provided by law. And all courts of record shall have a seal to be used in the authentication of all p1·ocess'.'' (at p, 369) "x x x The question we now have t~ consider is whethe!' this purpose has been accomplished without any violation of the constitutional restrictions. The argument on behalf of the plaintiff, and the reasoning of the courts in the authorities sustaining his contention, may, perhaps, be divided into two main proOctober 31, 1954 THE LA WYERS JOURNAL 481 MEMORANDUM FOR PETITIONERS <Continued> "The only argument for the preservation of the system is i.ts constitutional establishment over -'nd against the power of the le· gislature to abolish it, when established, during the existence of any term. It is not a question of trusting the legislature not to do it; it is a Question of its power to do it, against the positive provision that these courts must exist by the presE:rvative clause vesting in them the jurisdiction when created. No other conclusion meets this difficulty, and '!10 argument has been made or could be made which obviates it. We would just as well say it must exist, but may not exist, as tn assert tl1e p1·oposition, contended for, or put two and two together, and say they shall not make four, as to assert that. the ccnstitution preserves this iiystem of courts against the powe1· of the legislature, and then ~ay it may destroy it by destroying the court severally or in tolo. The pl'inciple herein contended for was conceded by the same court which decided the Coleman Case, h.nd dill that case was in 'p'.lrt adhered to in State ex rel. Hal.~ey v. Gaines, 2 Lea, 316, 319. In that case it was conceded <page 326) that an act abolishing a circuit with intent to destroy a judge would be void. This concession can mean nothing else than that an act destroying a judge by abolishing a circuit or division would be void, becauSe it has been before and has repeatedly since been decided that the personal motive or intent of the legislature in passing an act cannot be inquired into, end, as the only intent which can be considered is the legal one determined by the effect of the act, if that effect is to destroy the judge the intent appears, and the act void. If this is not 30, the concession is meaningless and misleading, not to say frivolous. For almost the same reasons are the other infrrior judges protected from legislative interference. They are to be men of the same age, the same term of service, with the same unchangeable compensation, and elected by the same voter11 in the same district or circuit whe!'e they serve. Const. art. 6, § 4. 'l'o this conclusion this court came in the case of State v. Leonard, 86 Tenn. 485, 'i S. W. 453, !1nd 'Ve 11sed language there whid1 we thought could by no possibility be misconstrued. In this .::onnection we said: 'The constitution, in fixing the terms of the judges of inferior courts, elected by the people, at eight years, inter.ded not only to make the judiciary independent, and there!Jy secure tc the people the corresponding consequent advfintages of courts free from intnferE:nce and control, and removed from all nrcessity lf being subservient to any power of the state, but intr:nded al'>!' to prevent constant and frequent experimenting wit.h court systems, than which nothing could be more injurious or vexatious to tt.e i,:ublic. It was intended, when ~hE: legislature established an inferior cc;urt, that it should exist such a length of time as would ~ve opportunity for mature observation and app=-eciation of its benefits or disadvantages, and that the extent of its dura'..ion might discourage such changes as were not the result of most mature consideration. Realizing th&t a change, if made i!o as to oonstitute an infet·lor court, would fix that court in the system for c.ight }drs, a legislature would properly consider and maturely settle the question as 00 the propriety ~nd desirability of such change or addition to our system: and oonscious of the impropriety at1d the hazard of leaving th-:i judicial department of the: government at the mercy and whim of eacl1 reci..rring legislaturE: itself e]('rted but for two years, the framers of the constitution wisely guarded against these evils by the section rl'ferred to. Properly construed and enforced, it is effectual for that purpose. Disl'eg.:uded ot impaired by such inter pretation as leaves it to exisi in fvrm without force (II' rnb;;tance, and we have all the evils and confusior. of insecure, changing, and dependent courts; frequent and constar.t experimenting wit.h systemi:; providPd in haste, trit:d in doubt, and abolished before their merits or demerits are understood. It would be mortifying reflection that our organic lawmakers intended any such result in their avowed effort to make a government of three distinst and independent departments, and still more humiliating if we were driven to the conclusion that, while they did not intend it, they had been so weak and inapt in phraseology adopted as to have accomplished it. Wher.. a court whose judge is elected by the people of one or more counties in a district or circuit is MEMORANDUM FOR RESPONDENTS <Conth.w;d) .\• ·\ positions : One, that it was the general purpose of the framers of tl'.e Constitution to protect the judicial department from Jegi3lative interference; the other, that they intended to insure to U:e judge a tenure of office for the f11ll term for which he was elected; the one being necessary for the preservation of the :ndependence and intes-rity of the judicial branch of the gove; nment in the administration .of justice between litigants, and the other to preserve the individual right of the judge to his office. That the constitution intends to secure to the judiciary as an independent co-01·dinate branch of the government is conceded on all hands, and that the district courts are an important part of the judicial system is beyond question. It is contended that, because the Constitution provides for district courts, and fixes the term of the judges, and prescribes the mode of their removal from office, their position is fixed, and is as safe from legislative interference as that of the justices of this court; that both are constitutional officers, in exactly the same sense, and to exactly the same extent. But it will be noticed that under the provisions of the Constitution above quoted the judicial power is vested, not merely in supreme and district courts, but in probate ·courts, justices of the peace, and such othe1· courts, inferior to the supreme court, <ts the legislature may see fit to create. x x x" (at p. 368.) "x x x The case of district judges and justices of the peace is different in this important particular: that the number of judicial districts and therefore the number of district judges, as well as the number of justices of the peace, depend on legislative discretion. x x x." (at p. 368) "We think prior decisions of this court have construed our Constitution and announced the principles decisive of this case. In the case of Devision of Howard Coimty, 15 Kan. 94, it was held that 'the legi.'llature has the po'!Ver to itbolish counties and county organizations whenever it becomes necessary for them to do so in changing county lines or in creating new counties.' Re Hinkle, 31 Kan. 712, decides: 'The legislature has the power to abolish or destroy a municipal township, and when the toll'nship in rt-boli11l1ed or rlestroyed, the town.'lhip officers must r10 with it.' The doctrine of this case is reaffirmed in Re Wood, 34 Kan. 645. In the case of State v. Hamilton, 40 Kan. ::S23, it was said: 'There is no constitutional rest1·iction upon the power of the legislature to 1 iboli11h mur.icipal and county organizations, and the exi11te1<ce of the 11ower i.~ not di.~puterl and cannot br: doubted.' x x x." (at p. 368) "x x x To allow the legislature, while making one new district, to legislate the judge of an old district out of office, and provide for the appointment or election of two new judges, would clearly be vicious in the principle, and this is the class of legislation which falls within the constitutional inhibition. But to prohibit the legislature from abolishing a district which had been improvidently established, and thereby vacate the of· /ice of a judge, is anothe~ and altogether differeJJt thing, which the Constitution does not, in express terms, prohibit. While the independence and integrity of courts in the exercise of all the powers confided in them by the Constitution should be firmly maintained, jealousy of encroachments on judicial power must not blind us to the just power of the legislature in determining within constitutional limits the number of courts required by the public exigencies, and the kind and extent of the jurisdiction and functions to be discharged by <!ach. We think the legislature has the power to ubolish as well as to create, to diminish as well as to increas<J, the numbe·r of judicial districts. We might say, in this connection, that the plaintiff in this case does not claim any vested right in an office, and that no question is presented by the record before us as to the right of the legislature to deprive a district judge of, the compensation allowed him by law. x x x (at p. 369) "x x x The great fallacy, as we view the case, in the ar482 THE LAWYERS JOURNAL October 31, 1954 :MEMORANDUM FOR P E\l.1'zi..IONERS (Continued) constituted by the legislature, and an election had, and the officer commissioned and qualified, it is no.t ih: the power of the legislature to tnke from him the term df' eight years by devolving them intact upon another, or otherwise. If it can abolish in this way the office ')f county judge, it can abolish the office of any inferior judge, as ail are protected, by the clause of the constitution referred to \article 5). For the honor of the framers of C•Ul' constitution, the best interests of our people, the independence of the judiciary, and the security :::nd order of our court system against rash and constant experiments of legislation, it afford'i us much satisfaction to give the constitution its plain, natural, and unobscure effect, to invalidate legislation l•f this character, and to be able to say that nvthing as yet decided by our court stands as an obstacle in the way of our doing so. But, If there were, it would afford us pleasure to remove it.' State v. Leonard, 86 Tenn. 485, 7 S. W. 453. x x x Giving the constitution tJ,j~ ~onstruction harmonizes the entire section quoted, makes the judiciary department in fact, and not merely in fiction, independ~nt, and harmonizes all the other cases before and since on this suhject. See Smith v. Normant, 5 Yerg. 271; Pope v. Phifer, a Heisk. 682; State v. McKee, 8 Lea, 24; Cross v. Mercer., 16 Lea, 4S6; State v. l\laloeny, 92 Tenn. 68, 20 S. W. 419; State v. Cummins, 99 Tenn. 67 4, 42 S. W. 880. " It should be noted here that all the cases in this court h'?ve g'One upon the thevry, generally recognized in the American courts, that when the legislature makes or creates an office without a tenure, or indepmdent!y of co:1.>tilutional provision, it can abolish i i or change its tenure or its compensation at pleasure, but that when it creatE's a cunstitutional office <that is, one directed or authorhed under the constitution or recognized by it, and fo!" which the constitution has pro\'idcd a tenure) the legislature can not abolish the office, abridge its term, or destrl.ly its substantial functions er emoluments. 12 Am. & Eng. Enc. Law, pp. 18, 19. x x :t "Nothing i!'= better settled in this state at this time than thi~ proposition. It is equally settled that the legislature may, as in the sheriff's ease wE. held <Stat"' v. Guniminsl, diminich or increase the duties; and in the case of circuit, chirncery, and other edablished inferio1 eourts, it may diminish or merease the jurisdiction, enlarge :)r contract the territory of their work, but it cannot destroy eithe:- the officer or the office in toto. And it cannot, therefore, abolish a circuit or chancery division, because that would destroy the judge. The line must be drawn somewhere. We undertook to draw it in the Cummins Case. x x x There must be a line - a reasonable line - drawn somewhere, which riermitted the law to regulate the office, but recognized and continued its constitution;'!.} existence. We drew the only one possible. It applies in the same way to th<! judges. The constitution is ever more specific as to them, frl' it directs the vesting of jurisdiction, and requires a fixed territory for service and an unchangeable cc.mpensation. The rule is the a:ime, - must necessarily be the same. Legislation may increase or diminish the jurisdiction of constitutional judges. It may add territory or take it away, but it cannot take all jurisdiction of constitutional judges. It may add territory or take it away, but it canuot take all jurisdiction or all territory away. Enough must be left to preserve the substantial jurisdiction and functions of the office. Nothing less than this is reasonable to the law. Nothing more is agreeable to the constitution. To show how clear this is from another standpoint, we consider what appears in the constitution as to the supreme court, and our construction of it. The constitution says our jurisdiction shall be eppC'llate only, 'under such restrictions and regulations as may be from time to time prescribed by law.' Article 6, f; 2. Under this clause we have recognized the right of the lf'gislature to take from us and confer on other courts (notably the court of chancery appeals) certain jurisdiction. But we did not mean - the COn3titution could not mean-that the legislature could take it all :!way. If so, there need be no supreme court. Here, too, the line must be drawn. We must have jurisdiction. The legislature may reasonably limit. It cannot, therefore, de~:MEMORANDUM' FOR RESPONDENTS (Continued) gument in favor of the plaintiff, and in the cases cited by him, is that the rights of the particular individual who chances to be elected judge are looked upon as paramo1mt and superior to the rights of the public. The correct view is that a public officer, no matter what the department of the government in which he serves is a public servant. A district judge is provided to aid in the administration of the laws. While it is right that the public should deal fustly with him, his individual rights are by no means of primary importance. x x x." (at p. 369 (Underlining supplied.) The debates during the Constitutional Convention on the J udiciary will reveal the reason for the judicial tenure as prohibiting the Constitution to single out judges"x x x MR. JOVEN. Granting that there is a provision insuring fixed tenure of office, and granting also that there i::i a provision in the Constitution assuring that once appointed the justice of the court, will at least have a fixed compensation which cannot be reduced by the Legislature, but by leaving the creation or the e::cistence of the com·t of appeals in the hands of the Legislature, suppose the National Legislatm·e will abolish the courts of appeals becau.se it is at its mercy. "Will not the abolition of the court of appeals have the effect of nullifying those provisions regarding fixed tenure of office and fixed compensation? If the office does not e::cist, naturally that is one means of getting Yid of the incumbent, and will not that fact affect the i1idependence of the judiciary, affecting the administration of justice? "MR. LAUREL. I desire to invite the attention of the gentleman from llocos Sur to the very able dissertation of Alexander Hamilton in a series of articles, especially No. 86, on the Federal Judiciary, in regard to the extent and limitation of that provision with regard to the good behavior of justices and judges. In the first place, I will commence by saying that if the argument is that we should insert a court of appeals in this constitution in ol'der to tie up the hands of the National Assembly, well, there is no reason why if you want to carry your argument to its logical conclusion, why include only the court of appeals and not include the courts of first instance and other inferior courts? "As regards the other point raised by the gentleman from llocos Sur which bl'ings rather a very delicate question, I do not want tl.l be quoted as author for this, but simply to the extent of ljUOting the statement of l\Ir. Alexander Hamilton in regard to the provisions as to the tenure of office of judges dming good behavior. The po.npose, according to him, of inserting that provision in the Federal Constitution of the United States is not to tie up entirely the hands of Congress or the Assembly in our case, from trying to reNganize the judicial system in case of emergency or in case of a sudden necessity. The purpose of this provision is not to permit the Executive or anybody under the Federal Government to single out judges who are persona non grata to him because he is in power, and give rise to the retention of those who are probably not as capable as those who are being singled out. That is the point in the dissertation of Alexande1· Hamilton, so that the point of doubt raised by Your Honor would not happen to a situation where in case of an economic collapse or an economic bankruptcy, the Federal Government may not take the necessary measures. I would even go further by saying that under the police power of the State which is not stated in the Constitution but which is inherent in every sovereignty, the Government of the Philippines that we shall establish may adopt th~ necessary measures calculated to safeguard the supreme and paramount interest of the people and the nation, with or without the Constitution as an inherent attribute of sovereignty." (Debates on the J udiciary in the Constitutional Convention, Lawyers' League Jour nal, Vol. III, No. 10, pp. 558-559 ; underlining supplied.) October 31, 1954 THE LAWYERS J01Jl\NAL 483 MEMORANDUM l<'OR PETITIONERS <Continued> troy. IC so, it can destroy this court. The Cummins Case declares the sound principle on which all constitutional offices must be sustained, and upon it the courts with all others. x x x See rases cited in 1·eference to 12 Am. & Eng. Enc. Law, pp. 18, 19 from many stat~s; and see, especially, Com. v. Gamble <Pa.) l Am. Rep. 422; Reid v. Smoulter, 128 Pa. St. 324, 18 At!. 445, L.R.A. 517; Fant. v. Gibbs, 54 Miss. 39G; State v. Frit:!<lley (Ind. Sup.) 34 N.E. 872, il L.R.A. 634; Foster v. Hones, 52 Am. Rep. 688; People v. Dubois. 23 Ill. 498; Attorney General ''· Jochim CMich.> 58 N.W. 611, 23 LR.A. 703; State v. Messmore, 14 Wis. 177; Ex parte Meredith lVe.) 36 Am. R<?p. 778; Hoke v. Henderson, 25 Am. Dec. 677; King v. Hunter ~N. C.> 6 Ant. Rep. 754; State v. Douglass CWil.) 7 Am. Rep. 89 and nCtte; 7 Lawson, Rights, Rem. & Prac . 3817, note; Throop, Pub. Off. § 19, 20. "As supposed to the contrary of this great weight of authority, four cases are cited. They are Aikman v. Edwards <Kan. Sup.) 42 Pac. 366; Crozier v. Lyons, 72 Iowa, 401, 34 N, W. 1~6; Board v. Mattox, 30 Ark. 566; Hoke v. Henderson, 25 Am. Dec. 677. "In the case of Aikman v. Edwards <Kan. Sup.) 42 Pac. 366, the question as to the power of the legislature to interfere with a judicial tenure of office was not involved. x x x The sole question beforE the court was whether the legislature, by statute. had the power under the constitution to abolish a judicial circuit by transferring the counties composing it to another circuit. The act in question abolished four districts by transferring their jurisdiction to other districts. As is shown in the opinion of the court, this was done upon economical grourids, and to dispense with e.xtra\'agant and useless courts. The fact that under tht!se circumstances the legislature reserved to the judges of the abolished courts their salaries for their full terms of ·lffice furnishes the evidence that the legislature considered that this act would be unconstitutional unless such reservation was made. The constitution referred to in thi11 case provided that judges should hold their offices for . n term of four years. x x x "The case of CrOzier v .Lynns, 72 Iowa, 401, S4 N. W. 186. has no bearing upon the question in the case at bar. The constitution of Iowa (1857> provided that the judicial power should be vested in a supreme court, district court, and such ct.her courts inferior to the supreme cc.urt as the general assembly may from time to time establish, It. further provided for a fixed tnm of office as k> the judges of the supreme court and district court, and for an undiminished compensation during the term for which they were elected. It further provi<led for the reorganization by the legislature of judicial districts, and an increase of judges of the supreme court, but that this should be done so as not to remove a judge of said court from office. As to infericr courts which were not embraced in the classes of courts before named, said constitution contained no provision for a fixed tenure of office, nor for an undiminished compensation during continuance in office, r.or any prohibition against removal from office. In law, the pro1'.ibition in said constitution against removal from office of one class, the judges conferred the implied power to remove the other class, the judges of the inferior courts constituting said class. It will be seen from said constitution that the class of courts designated in the same as 'inferior courts' were intended to be creatures of the legislature, subject to its will, and for this reason nc. constitutional limitations were thrown around such courts. It is obvious from the terms ot said constitution that no question of the legislative intereference with a constitutional tenure of office arose in said case. 7 Hough, Am. Const. <Iowa Const. l p. 382, art. 5. "The case of Board v. Mattox, 30 Ark. 566, was grounded upon express provisions of the Arkansas constitution, and is not in point x x x." In this case an inferior court was abolished by an act of the legislature, and the judge of the court instituted a mandrunus proceeding to compel the payment of his salary, The court, holding adversely to the contention, said: "Where the court is abolished, as was the case in this instance, there was no longer an office to fill, no officer, no service to render, and no fees due." It MEMORANDUM FOR RESPONDENTS <Co1ttin.ut:d) Hypothetical law reducing membeTship of the Supreme CmtTt would not apply to the case at bar - Counsel for petitioners apparently followed the remarks of Prof. Aruego during the last minutes of the oral argument held on August IO, 1954, when he expressed the opinion that a law reducing the membership of the number of this Honorable Court from 11 to 7 would be constitutional under Art. VIII, section 4, which provides: "SEC. 4. The Supreme Court shall be composed of a Chief Justice and ten Associate J ustices and may sit either in bane or in two divisions unless otherwise provided by law;" but unconstitutional under Art. VIII, Section 9 of the Constitutinn which provides for judicial tenure of office. Such statement directed at this Hon. Supreme Court partakes of an "ad hominem" argument. And we do not believe that a law can be both constitutional and unconstitutional at the same time. Counsel for petitioners following the same argument submit that a law reducing the number of this Honorable Supreme Court from 11 to 7 by eliminating the four youngest members in point of service or the four oldest members (p. 9, Sebastian); or if Congress should increase the membership of the Supreme Court to 15 and after the 4 additional justices are commissioned, the numher is again reduced to 11 (p. 70, Salazar), the reduction would be unconstitutional as violative of judicial tenure of office. We may agree to the conclusion that such a law i·educing the membership of this Honorable Supreme Court from 11 to 7 by eliminating the 4 oldest or the 4 youngest members would be unconstitutional, but the reason would be that such a hypothetical act would single out 4 definite justices of this Honorable Court, and in the words of J ustice Laurel, such a law would be "enacted purposely to affect adversely the tenure" of justices or of particular justices (or judges) and thereby "cloak an unconstitutional and evil purpose" (Zandueta vs, de la Costa, 66 Phil. 615, at p. 627). Prof. Aruego drawing a parallel to the instant law, Rep. Act No. 1186 which abolished the positions of judges-at-large and cadastral judges, expressed his opinion that such a law would be constitutional because Congress has the power to organize, abolish and reduce statutory courts, but unconstitutional insofar as it would deprive the petitioners of their tenure of office. We disagree w1tn the opinion of Prof. Aruego as to the invalidity of Rep. Act No. 1186, because the law does not single out any specific or particular judges. Rather, it abolished all the existing positions or offices of j udges-at-large and cadastral judges· The law is gl!nernl. It 9'."~ not enacted to affect adversely the tenure of any particular judge. It was not a cloak to cover an unconstitutional or evil purpose. Such an hypothetical law if applicable to the Supreme Court and intended to deprive the four oldest or four youngest members of this Honorable Tribunal of their judicial tenure of office would be invalid under the principle enunciated in the case of Commonwealth vs. Gamble, 62 Pa. 343. However, Republic Act No. 1181) abolishin(t' all the positions of judges-at-large and cadastral judges is valid and constitutional under th!! principles enunciated in the cases of Cherokee County vs. Savage, 32 S. ed. 803; McCulley vs. State, 58 S. W. 134; Aikman vs. Edwards, 42 Pac. 366, and the other Philippine decisions cited in the Answer of respondents (pp. 9-19), and restated in this Reply Memorandum (pp. 5-9) re: thorities upholding the abolition of judgship. Alleged purpose to legislatti petitioners out of office - In our Answer (pp. 24·27), we cited authorities to the effect"Courts will not institute any inquiry into the motives of the legislative department" (Downy vs. State, p. 24 of Answer); "With the motives that dictated the Legislatures in either case the courts are not concerned." (People vs. Luce, p. i4 of Answer); 484 TH& LA WYERS JOURNAL October 31, 1954 MEMOHANDUM FOR PETITIONERS <Continued) will be seen that said constitution {that of Arkansas) expressly conferred upon the legislature the power to abolish inferior courts. The constitutional limitation upon the legislature, that it should not interfere with the term of office of a judge, is to be construed in connection with the provision conferring the power to abolish. This limitation was construed by the court, that while the office existed, only during this time the term of office ~hould not be interfered with. It is therefore evident that the court based its conclusion upon the theory that said limitation did not control the provision conferring the express power to abolish, and that the limitation was subordinate to this provision. So, therefore, the case is grounded on an express constitutional provision conferring upon the legislature the power of abolition ; that power of abolition necessarily carrying with it the power of deprivation of office. The case of Hoke v. Henderson, 25 Am. Dec. 677, involved the tenure of office of a clerk, - an office recognized by the constitution of the state, but as to which there was no tenure of office prescribed in that instrument, such tenure being left to the will of the legislature. In other words, the ruling in this case is applicable only to offices which are subject to legislative will, and not to offices the tenures of which are constitutionally defined. · The case itself expressly declares that the legislature is powerless to interfere with officers the tenure of which is constitutionally prescribed· "Having shown that the two Tennessee cases (out of line \Vith former and subsequent cases on the same principle) directly against the ll<1lding in Pope"· Phifer, 3 Hcisk, 682, repudiated by three cases since, precisely in point CState v. Ridley, State "· LeClnard, Sta~e v. Cummins), never should have been car.trolling I wish to present th<' original question against the merit of these opinious, per se, and in this connection I would refer first to their inherent wan( of weight by reason of the fallacious doctrine upon which they are re5ted. It is, first the assumption that 'whatever the legislature could establish it could destroy.' The authorities alrl"ady cite.d and quotations made wholly overh:rn this assumption. It 1s cl"'ar that when a thing is established by the legislature, and exist::; or:ly by virtue of ihat authority, the authority may be withdrawn and the thing itself destrClyed . It is equally ckar in reason, and we think we have demonstrated it to be so in authority, that when it is established by virtue of constitutional direction, and to exist and take power and duration, with unchangeable salary, from the constitution, it is embedded in the constitution and beyond legis· lative control. x x x The second fallacy upon which it was based was the lack of independence of the judicial department. The republican form of government which we in common with other states had adopted in theory embraced three independent departments, - the legislature, executive and judicial - each supreme in its QWn sphere and independent of the others. This theory had been assumed to be correct, and this condition of independence actually existing in fact, from the adoption of our earliest constitutior.." The theory that the legislature may abolish courtB provided it is not motivated by bad faith nor intended to turn the judges out of office. This theory is less objectionable than the first one but is subject to the objection that it makes the intent of the legislature subject to inquiry on the part of the courts. The authorities are in conflict as to whether courts may inquire as to the motive and intent of the legislature in passing a law. The theory that the legislatuu does not have the power to abolish courts when the intent or effect thereof is to terminate the office of the incumbent judges. We now proceed to give the reasons why this theory is, among the three, the most sound and the most in consonance with the spirit of the Constitution. MEMORANDUM: I•'OH RESPONDENTS <Contfoued) "The discretion being conceded and the power admitted, the expediency of the legislative will, or the motives which may actuate that will in a given case, is not a fit or allowable subject of inquiry or investigation" (Bruce vs. Fox, p. 25 of Answer); "Courts may not review questions of legislative policy" (p. 26 of Answer); ''The judiciary is not th<> respository of remedies for all pQ!itical or social ills" (Vera vs. Avelino, p. 26 of Answer) . In the case of McCulley vs. State, 53 S.W. 134, the Court said"The exercise of this power by the Legislature is not such interference over the independence of the judge, or with his tenure of office, as can be properly complained of. The power may be possibly exercised without good cause, but in such case the courts can furnish no remedy." (at p. 136) "An act cannot be annulled because it violates the best public policy, or does violence to some natural equity, or interferes with the inherent rights of a citizen, nor upon the idea that it is opposed to . some spirit of the constitution not expressed in its words, nor because it is contrary to the genius of a free people; and hence the wisdom, policy, and desirability of such acts are matters addressed to the general assembly, and must rest upon the intelligence, patriotism, and wisdom of that body, and not upon the judgment of this court." (concurring opinion of J. Wilkes, at p. 144) But counsel for petitioners insist that the purpose of Republic Act No. 1186 was "to weed out undesirable judges" (quoting Congressman Tolentino, p. 18, Sebastian). The statement of personal opinion by one Congressman is not the will of Congress. In fact Congressman Francisco who was the sponsor of the measure on the floor of Congress stated"MR. FRANCISCO. Mr. Speaker, the bill now under consideration is House Bill No. 1961 amending the Judiciary Act of 1948. The main feature of the measure is the abolition of the positions of cadastral judges and judges·at-large and the cre.:ltion in lieu thereof of the posit.ion of auxiliary district judges." "MR. FRANCISCO. The purpose of the law is clearly stated in the explanatory note. The purpose of the law is twofold: First, in order to remedy the backlog of cases, we propose to increase the number of judges. Secondly, in order to do away with the abuses of the past, we propose to limit the power of the , Secretary of Justice to transfer a judge from Jolo to Batanes or from Batanes to Jolo, with a view to avoid political interference. Now, if I may be permitted to ask the gentleman from Ilocos Norte, does he believe that his interpretation of the Constitution is correct?" (Lawyers Journal, July, 1954, pp. 325-326) Respondents' Answer submitted that good reasons of public interest justify the exercise of the governmental powers of the Legislative and Executive departments (pp. 27-36), among which, to stop the obnoxious practice of "rigodon de jueces" (p. 31), to prevent the Sec. of J ustice from handpicking judges to try specific cases (p. 32) and eventually to strengthen and fortify the independence of the judiciary (p. 35 of Respondents' Answer). Counsel for petitioners cite the opinion of Secretary of Justice, Hon. Pedro Tuason, that the bill would be unconstitutional in so far as it would affect the tenure of the incumbent judges (p. 132, FrandscC1; p. 24 Sebastian), and sl>J.te that the undersigned Solicitor General should follow the "opinion of his Chief" (p. 132, Francisco). Secretary Tuason merely expressed his personal opinion. According to Atty. Salazar, counsel of the petitioners, the concurring opinion of Mr. Justice Laurel in the Zandueta ~s. de los Costa, 66 Phil. 615, "cannot be accepted as controlling" (p. 86, Salazar). October 31, 1954 THE LAWYERS J01)RNAL 485 MEMOHANDUM FOR PETITIONERS <Continued) Supposing a constitution gives the Legislature the power to establish inferior courts but is silent as to the tenure of office of the judges; may the Legislature, after it has established such courts, abolish the same? The respondents will undoubtedly answer the question in the affirmative, invoking the principle that offices created by the Legislature may be abolished by the Legislature and that the power that creates can destroy. Now, supposing said constitution is amended by inserting therein a provision to the effect that judges of such courts shall hold office during good behavior; what would be the answer of the respondents to the question of whether the Legislature may abolish such courts and terminate the office of the judges? Without doubt they will give the same answer, that is, that the Legislature may abolish these courts because the power to create them carries with it the power to destroy. If that were so, what then is the difference behveen giving the Legislature the power to establish inferior courts without the constitutional guarantee of tenure of office of the judges, and giving the Legislature such power but securing at the same time in the Constitution the tenure of office of such judges? If with or without a provision in the Constitution gua:ranteelng the tenure of office of a judge, the Legislature may without restriction abolish any court created by it, what then is this provision regarding security of tenure for? Is it conceivable that this provision was inserted in the Constitution for no purpose or effe<:t? Since no sensible man would think that the provision guaranteeing the tenure of office was inserted in the Constitution without any purpose at all, and that a constitution without such provision has the same effect as a constitution containing the same, with regard to the power of Legislature to terminate the office of a judge by abolishing his court, we have to conclude that such provision places a limitation upon the power of the Legislature to abolish courts. In other words, the unrestricted power of the Legislature to abolish courts created by it, when the constitution does not guarantee th.e tenure of office of the judges of said courts, becomes restricted when the constitution guarantees and protects the tenure of office of the judges of the courts created by the Legislature. The second reason why we say that the second theory is the most sound among the three is because the provision of the Constitution securing the tenure of office of the judges has for its object and effect to establish the complete independence of the judiciary, not only in its operation among the people, but as against possible encroachment by the other coordinate branches of the government. On this score, we can do no better than to quote the pronouncements of some of the most eminent American justices on the matter, which we arranged in the form of syllabi. McCulley v. State, 102 Tenn., 509, 53 So. 184, Dissenting Opinion of C. J. Snodgrass. POWER OF CREATING AND ABOLISHING JUDGES; ENGLISH THEORY. - The power of creating or abolishing judges never did, and does not now, abide in the parliament of England. The English theory was that the king was the judge in England. Later this kingly power was delcgnted by him to others appointed. by him. They existed with him (subject to his powei· of l'\"'rno\·al), and officially died with him, if not before removed. Yet, later, on reeommendation of the king, the last feature was changed by act of parliament, and the tenure of the office of each incumbent was extended beyond the death of the king; and the office was ultimately held during good behavior, which, of course, meant during lifr, if not forfeited by misconduct. But still to this was added a right of of remov:\I by the king upon what was termed an "address" of both houses of parliament, and which, it is said, was made in the form of a resolution. DEPENDENT JUDGES. - It will be remembered by all students of history that the course of dependent judges rendered truculent by control, and made infamous by subservience, had created for the English people a more insupportable condition of legal tyranny and authorized oppression than bad ever iound ex.istence in the MEMORANDUM FOR RESPONDENTS <Continued) How then can counsel for petitioners argue that Secretary Tuason's personal opinion should be controlling? Former judicia111 laws required incumbents to vacateProf. Enrique M. Fernando in his oral argument mentioned Act No. 2347 and Act No. 4007 and both Acts required the incumbent judges to vacate their positions. We quote the pertinent provisions of said Acts. "Sec. 7. Of the appointment of the judges and auxiliary judges of Courts of First Instance. - The district judges appointed by the Governor-General, with the advice and consent of the Philippine Commission t-0 serve, subject to the provisions of sections eight and nine hereof until they have reached the age of sixty-five years: Provided, That no person shall be appointed to said positions unless he has practiced law in these Islands or in the United States for a period, of not less than five years or has held during a like period, within the Philippine Islands or within the United States an office requiring a lawyer's diploma as an indispensable requisite: Provided further, That before asSuming such judicial office he shall qualify as a member of the bar of the Supreme Court of the Philippine Islands if he has not already done so; And provided, further, That the present judges of Cottrts of First Instance, judges-at-large, and judges of the Conrt of Land Registration vacate their positions on the taking effect of this Art,, and the Governor-General, with the advice and consent of the Phili1>pine Commission, Ehall make new appointments of judges in accordance with the provisions of this Act, taking into account, in making seid appointments, the services rendered by the present judges." (Act No. 2347, £>nacted February 28, 1914; underlining supplied.) "Sec. 41. All the present Secretaries and Undersecretaries of Department, except the Secretary of Public Instructions, the judges and auxiliary judges of first instance, the Public Service and Associate Public Service Commissioners, and the chiefs and assistant chiefs of bureaus and offices, except the Insular Auditor, the Deputy Insular Audit-Or, and those detailed from the United States Government, shall vacate their respective positions on the taking effect of this Act, and the GovernorGencral shall, with the consent of the Philippine Senate, make new appoint.mr.nl:< of Secretaries and Undersecretaries of Department, judges and judges·at-large of first instance, Public Service and Associate Public Service Commissioners, and chiefs and assistant chiefs of bureaus and offices. in accordance with existing law as modified by this Act : Provided, That in the making of such appointments the services rendered by the present incumbents shall be taken into account." (Act No. 4007, approved December 5, 1932) The judicial incumbents, including judges-at-large and cadastral judges, were required to vacate their positions upon the effectivity of said Acts. There was no question raised as to the constitutionality of said legislative Acts. And both Acts required new appointments. The claim of counsel for petitioners that under Rep. Act No. 1186, which abolished the po.;itions of jndgc-s-at-large and cadastral judges - "no new appointment will be necessary" (p. 134, Francisco) - can not be correct, because Rep. Act No. 1186 abolished all the positions of Judges-at-large and Cadastral judges, and petitioners were not District judges. Another counsel of petitioners states - "of course they also could have been extended new appointments as district judges by the President, the same to be confirmed by the Commission on Appointments (p. 21, Sebastian). But certainly petitioners were not entitled t-0 automatic appointment as District judges. Petitioners could not be automatically appointed District judgesCounsel for petitioners remind us that in the original Laurel 486 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS (Continnrd) widest usurpation of p1·etenders or the most abominable license of established despots. This, among all the grievances which caused rc\•olution and advanced the cause of freedom there, and gave it absolutely here, was the result of such disregard of popular rights and liberties by dependent creatures of the crown called "judges." COMPLAINTS OF THE AMERICAN COLONIES. - It is to be remembered that one of the complaints of the American colonies against the injustice of the king was that: "He has obstructed the administration of justice by refusing his assent to Jaws for the establishment of judiciary powers. He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries." INDEPENDENT JUDICIARY; HOW SECURED. - An independent judiciary in an independent govemment the tenure was for life or (what may be the same thing, and must be, to a faithful and irreproachable official) during good behavior, and there was a provision against decreasing judi~ial salaries. , / INTENDl\1ENT OF TENURE OF OFFICE PROVISION CLEARLY ESTABLISHED IN THE LIGHT OF HISTORY OF THE UNITED STATES. - "That the tenure of office·provisi'Jns of the constitution were expressly intended to secure the term of office and the judges of the office during the tenure, subject alone to the defined grant of power of removal is firmly establlshed in the light of history, and the conditi011s which Jed to the establishment of -our federal and state forms of go\•ernment. When we look to thesC', we find the full import of the framers of our organic law 'hammered and crystallized' in the few brief words which defined and secure judicial independence by a fixed tenure of office, and an undiminished compensation during that tenure. The struggle for judicial independence has been a long and eventful one. • • • Judicial independence was intended to be secured by the provision that 'the judges of both the supreme court and inferior courts shall holfl their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuation in office.' (Const. U.S. art. 3, sec. 1.)* • t After the formation of the constitution it was submitted to the respective conventions of the states for adoption. The records of the debates in some of these conventions have been preserved. These debates establish beyond controversy that said clause of the federal constitution was intended to put the tenure of cffice of the entire federal judiciary beyond any legislative interference whatever, except by impeachment. • • •" REASONS FOR ADOPTING THE JUDICIAL TENURE OF OFFICE CLAUSE. - According to the debates in states conventions: Massachusetts Convention. - Mr. Tacker: "' • • The inde· pe.ndence of judge,~ is one of the favorable circumstances to publ;c, liberty, for when tlu;,y become the slaves of a venal, corrupt cowrt, and the hirelings of tyranny, all vroperty is precarious and personal security at an end." Connecticut Convention. - Mr. Elsworth, a Member of the Federal Convention: ''This constitution defines the extent of the powers of the general government. If the general legislature should at any time overlap its limits, the judicial department is a constitutional check If the United States go beyond their powers, - if they make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, - if they make the law which is a usurpation upon the general govern· ment, - the law is void; and upright, independent judges will declare it to be so.'' Virginia Convention. - Edmond Randolf, a member of the Fede1·al Convention: - ''* * * If congress wish to aggrandiie themselves by oppressing the people, the judiciary must first be corrupted." MEi\10RANDUl\I FOR RESPONDENTS <Continued) bill there was a provision for the automatic reappointment of the judges-at·large and cadastral judges into district judges (See. 5 of Bill No. 170, p. 12, Sebastian), but said provision of the bill was eliminated in the final law, Rep, Act No. 1186. The reason, we submit, was the realization that such a provision would be unconstitutional as constituting "legislative appointment" (pp. 21-22 of Answer), and therefore an interference with the sole power of exclusive prerogative of the Executive to appoint. <p. 23 of Answer) In fact petitioners' positions as judges-at-large and cadastral judges are tainted with unconstitutionality (p. 28 of Answer), be-cause they violate the spirit, if not the letter of Art. VIII, sec. 7 of the Constitution which provides : "No judge appointed for a particular district shall be de· signaled or transfel'l'ed to another district without the ap· proval of the Siipreme Coiirt. The Congress shall by law detennine the residence of judges of inferior courts." The l'eply uf pt!titioner!I to respondents' answer did not traverse, much less discuss this constitutional issue. The scanty discussion of this issue by counsel for petitioners (pp.· 128-131, Francisco; pp. 10-11, Salazar; none by Sebastian) would reveal the weakness of petitioners' position on this new point raised by the undersigned counsel for respondents. The fact that this issue was never raised before or the constitutionality of the positions of J u<lges·at-large and Cadastral J udges have been taken for granted cannot estop the l'espondents from raising this new nnd vital issue. Certainly the fact that such judges had no permanent residence as required by Art. VIII, Sec. 7, and could furthermore be designated from prov· ince to pl'Ovince at the sole will or discretion of the Department Head (Sec. 53 of Rep. Act No. 296) does violence to said sec. 7 of Art. VII I, which prohibits the transfer of a judge "without the approval of the Supreme Court". If therefore the positions of such judges-at·large and cadastral judges were tainted with constitution· al infirmity from their very existence, petitioners can hardly hav{! any ri~ht o:· pC'rSonality to question the validity of Sc::ction 3 of Republic Act No. 1186, which abolished such positions whose crea· tion and continuance are of doubtful constitutional validity, and expressly repealed Section 53 of Republic Act No. 296. Republic Act No. 1186 cannot be given p1·ospective effect onlyCounsel for petitioners suggest that Section 3 of Republic Act No. 1186 should operate prospectively (Francisco, p. 147; Salazar, p. 30). This suggestion however cannot be adopted in view of the express provision of Section 3 of Republic Act No. 1186, which we quote again: "All the existing positions of Judges-at-1arge and Cadastral Judges are abolished, and section fifty-three of Republic Act Numbered Two hundred and ninety-six is hereby repealed.'' (Underscoring supplied.) The law abolishes "all existing positions," and expressly repeals Section 53 of Republic Act No. 296. If the power of Congress to abolish statutory courts is a·dmitted, and the exercise thereof is <'Onstitutional, provided the law does not single out any particular judge or judges, even if the incumbents are deprived of their of· fices, which are clearly abolished, the law must be given the effect it openly expresses and the interpretation it clearly deserves. Counsel for petitioners express the fear that "all judge:1 of District Courts could thus be legislated out" <Sebastian, p . 26), and would thus demolish the indeprndence of the judiciary, w}.ich "will henceforth be a myth" CSehas1fa.n, p. 20). The fact is tJiat Republic Act No. 1186 has not abolished any district judge. But if Congress should see fit fur public interest. to !'educe or abolish some Courts of First Instance, we would still maintain that such exel'cise of Legislative power would be valid and constitutionc.l within the framework of our Constitution, provided such a law would not sfr1gle out any particular judge or judges. In the !lame <Continued on next page) October 31, 1954 THE LA WYERS JOURNAL 487 MEMORANDUM FOR PETITIONERS <Continued) Mr. Pendleton: - "• • • 'Vhenever, in any country of the world, the judges are independent, the liberty and property are securP." Mr. John Marshall: - "• • • If a law be exercised tyrannic31ly in Virginia, to what can you trust? To your judiciary? What security have you for justice? Their Independence." Mr. Henry: - "• • • The judiciary are the sole protection against a tyranical execution of the laws. But if by this system we loss our judiciary, and they cannot help us, we must sit down quietly and be oppressed." North Carolina Convention. - Mr. Steele : - "• • • If the Congress makes laws inconsistent with the constitution, independent judgeS will not uphold them, nor will the people obey them." It is clear from these debates that the constitution was considered as intending that the tenure of office and salaries of judges should not be disturbed during good behavior, and that a breach of the condition of good behavior should only be considered by means of an impeachment .. According to Hamilton : "According to the plan of the convention, all the judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the state constitutions, - among the rest, that of this state. The standard of good behavior for the continuance in office of the judicial-magistracy is certainly one of the most valuable of the modern improvements in the practice of government. • • • And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution, because it will be least in capacity to annoy or injure them. The executive not only dispens0 es the honors, but holds the sword, of the community. The legislature not only commands . the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence O\!er either the sword or the purse, no direction either of the strength of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment, an<l. must ultimately depend upon the aid of the executive for the ef. ficacious exercise even of this faculty. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two, and that all possible care is requisite MEMORANDUM FOR RESPONDENTS (Continued from page 487) way that a superior court, like the Court of Appeals, was creP.ted, al>olished and then recreated <pp. 11-12 of Respondents' Answ"r' . Conclusion: The undersigned counsel for respondents is as much interesteJ as counsel for petitioners in maintaining and pregerving an independent judiciary. In fact, we want to further strengthen and fortify the independence of the juriici:i.ry (pp. 35-36 of Respond'2'nt s' Answer). This is one reason why we justify the abolition of jud'l:t!l!at-large and cada,:;tral judges i..s expressly provided by Section :i c.f Republic Act No. 1186. PRAYER WHEREFORE, the prayer contained in respondents' Answer dated July 20, 1954, is hereby resr-ectfully reiterated. Manila, September 4, 1954. AMBROSIO PADILLA Solicitor General to enable it to defrnd itself against their attack. It proves, in the last place, that as liberty can have nothing to fear from the judicia1·y alone, but would have everything to fear from its union with either of the other departments; that as all the effects of su~h a union must ensue from the dependence of the former on the lattt!r, notwithstanding a nominal and appareut separation; that as from the natural feebleiiess of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; that as nothing can contribute so must to its firmness and independence as permanency in office, - this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and in a great measure as the citadel of the public justice and of the public security. The complete independence of courts of justice is pecul iarly essential in a limited constitution. If, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to lhat independent spirit in the judges which must be essential to the faithful performance of so ardous a duty. This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves, and which, though they speedily give place to better information and a more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community; for it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution where the legislative invasions of it h::i.d been instigated by a major voice of the community." According to Cooley: "This constitution provided that 'judges should hold their office during their good behavior.' Article 5, sec. 2. The meaning of these words is to be interpreted in the light of the history and conditions preceding the formation of the constitution. So interpreted, it seems beyond controversy that this f•rovision was intended to secure to the judges a tenure of office safe from any legislative interference or abridgment, direct or indirect, except for cause for which the judge might become responsible by breaching the condition of good behavior, this being provided for by impeachment." (Cooley, Const. Lim., 6th ed., p. 80.) - Ar.cording to Tucker: "To give them the courage and the firmness to do it, the judges ought to be confident of the security of their salaries and station. The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who, in consequence of a certain, undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station." (1 Kent, Comm., pp. 294-295.) "This absolute independetice of the judiciary, both of the executive and the legislative departments, which I contend is to be found both in the letter and spirit of our constitutions, is not less necessary to the liberty and security of the citizen and his property in a republican government than in a monarchy. Such an independence can never be perfectly attained but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. And herein consists one of the greatest excellencies of our constitution, - that no individual can be oppressed whilst this branch of the government remains independent and uncorrupt; it being a necessary check upon the en· croachments or usurpation of power by eithe,r of the other. And as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, who have the custody of the purse f.!.nd the sword of the confederacy, .and as nothing can contribute so much to its firmness or independence as permanency in office, this quality therefore may 488 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS <Continued> be justly regarded as an indispensable ingredient in the constitution, and in a great measure as the citadel of the republic, justice and the public security." (1 Tuck. Bl. Comm. Append. 354, 860.) -According to Story: "The reasons in favor of the independence 0f the judiciary npply with the augmented force to republics, and especiallr to such as possess a written constitution, with defined powers and limited rights. It is obvious that, under such circumstances, if the tenure of office of the judges jg not permanent, they wil! soon be rendered odious, not because they do wrong, but because they refuse to dD wrong; and they will be made to glve way tc. others who shall become more pliant tools of the leading demagogues of t.lw day. There can be nc security for the minority, in a free government, except through the judicial department. In the next place, the indcpendenct> of the judiciary is indispensable to secure the 1ieoplt: against the intentional as well as unintentional usurpations of the executive and legislative departments. It has been obserVed with great sagacity that power is perpetually stealing from the many to the few, and the tendency oi the legislative department to absorb all the other powers ..if the government has always been dwelt upon by statesmen and patriots as a general truth, confirmed by all human experiCnce. • • • In a monarchy the judges, in the performance of their duties with uprightness and impartiality, will always have the support of some of the departments of the government, or at least of the people. In republics they may sometimes find the other departments combined in hostility against the judicial, and even the people, for a while, under the influence of party spirit and turbulent factions, ready to abandon them to their fate. Few men possess the firmness to resist the torrent of popular opinion, or the content to sacrifice present ease and public favor in order to earn the slow rewards of a conscientious discharge of duty, the sure that distant gratitude of the people, and the severe but enlightened award of posterity. The considerations above stated lead to the conclusion that in i·epublics there are in reality stronger reasons for an independent tenure of office by the judges - a tenure during good behavior - than in monarchy. · Indeed, a republic with a limited constitution, and yet without a judiciary sufficiently independent to check ueurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd as to society organized without any restraints of law. In human governments there are but two controlling powers, - the power of arms and the power of laws. If the latter are not enforced by a judiciary above all fear and above all reproach, the former must prevail, and thus lead to the triumph of military over civil constitutions. The framers of the constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of judicial establishment. Upon this pl)int their vote was unanimous. The main security relied on to check an irregular or uncon:>titutional measure, either of tho executi,·e or the legislative: department, was, as we have seP.n, the ju· cliciary. To have made the judges, therefore, removable at tho pleasure of the president and congress, would have been a virtual surrender to them of the custody and appointment of the guardians of the constitution. It would have been placing the keys of the citadel in the possession of those against whose assaults the people were most strenuously endeavoring to guard themselves. 1t would be holding out a temptation to the president and congress, whf'nevcr they were resisted in any of their measures, to secure a perfect irres11onsibility by removing those judges from office who should dare to oppose their will. Such a power would have been a signal proof of a solicitude to erect defenses around the constitution fo~· the sole purpose of surrendering them into the possession of tho::;c whose acts they were intended to guard against. Under such circumstances, it might well have been asked where could resort be had to redress grievances or to overthrow usurpation. . It is almost unnecessary to add that, although the constitution has with so Se· dulous a oare endeavored to guard the judicial department from the overwhelming influence or power of the other coordinate departments of the government, it has not conferred upon them any inviolability or irresponsibility for an abuse of their authority. On the contrary, for any corrupt violation or omission of the high trust confided to the judges they are liable to be impeached, as we have already seen, and, upon conviction, removed from office. Thus, on the one hand a pure and independent administration of public justice simply provided for, and on the other hand an urgent responsibility secured for fidelity to the people." (Story, Const. Sec. 1610, 1612-1614, 1619, 1621, 1624, 1628, 1635.) TENURE OF OFFICE CLAUSE CAN NOT BE ABRIDGED OR LIMITED BY THE CLAUSE GRANTING THE LEGISLATURE THE POWER TO ESTABLISH SUPERIOR AND INFERIOR COURTS. - This constitution (of 1796) provided that judges should " hold their offices during their good behavior." Ar· ticle 5, Sec. 2. The meaning of these words is to be interpreted in the light of the hi::;tory and oonditions preceding the formation of the constitution. So interpreted, it seems beyond controversy that this provision was intended to secure to the judges a tenure of office safe from any legislative interfere11cc or abridgment direct or indirect except for causes for which the judge might become responsible by breaching the condition of good behavior; this being provided for by impeachment. Cooley, Const. Lim (6th Ed.) p. 80. It is evident ·that the judicial tenure of office provided for in the constitution of 1796 was modeled after the federal constitution, and was int~nded to bear the same meaning and construction. ·Under these conditions, and with these preceding events in the knowledge of the convention, it seems wholly unreasonable to suppose this tenure of office clause was intended to be in any way abridged or limited by the clause in said constitution providing that the judicial power of the state "shall be vested in such superior and inferior courts of law and equity as the legislature shall from time to time direct and establish." Article 5, Sec. 1. The convention of 1896 framed an organic law (said by Jefferson to be "the least imperfect and most republican" of any then framed) to govern a free people. Its every intent and purpose must have been to erect every barrier to oppression, and to provide every possible safeguard . for the protection of the people. With the dangers which attended a judiciary dependent u pon the king, and the protest of the Declaration of Independence, in its knowledge, it seems incredible that this convention intended to submit judicial independence to abridgment and destruction by legislative will; thus transferring dominion from an executive power to n legislative power, - a change from one to many masters. The authority of said convention given to the legislature to "direct and establish courts," viewed in the light of hist-Ory, could not have been intended to permit the destruction of the judicial tenure expressed in terms, and thus by a mere implication permit the power to interfere with judicial independence by the abolition of courts. (McCulley v. State, 102 Tenn. 509.) Commonwealth v. Gamble (62 Pa. 343) CONSTITUTIONAL LAW; TENURE OF J UDGES FIXED BY THE CONSTITUTION. - The respondent judge, having been elected and subsequently commissioned as president judge of the 29th district, took the oath of office and entered upon the performance of his duties as judge of sai<l court. The tenure of the office was, by the constitution, to continue for 10 years, on the only condition that he would ~o long "behave himself well." Held: Having taken the office and entered upon the performance of his duties, its duratiun was assured to him by the constitution for the full period mentioned, subject to be terminated only by death, resignation or breach of the condition, which breach could not be legislatively determined, but only by the trial before the senate on article of impeachment duly preferred, or, in the case the breach amounted to total disqualification, perhaps by address of 2/3 of each branch of the legislature. These are the ordained _constitutional remedies in such cases and there can be no others. TENURE AND COMPENSATION OF JUDGES; OBJECT.The constitutional provision regarding tenure of office and the other requiring that adequate compensation shall be provided by law for the judges, which shall not be diminished during the continuance of October 31, 1954 THE LAWYERS JOURNAL 489 MEMORANDUM FOR PETITIONERS <Continued> his office, not only give the protection but inviolability to the tenure of judicial office, by any but the constitutional mode referred to. Their object and effect were, undoubtedly, to establish the complete independence of the judiciary, not only in its operation among the people, but as against possible encroachment by the other coordinated branches of the government. REASON FOR PROTECTING THE JUDICIARY. - Possessing neither the power of the purse nor the sword, as the executive and the legislative branches, may be said to do, the judiciary was by far the weakest branch of the government; and as its operations were necessarily to affect individual interests in the community, it was obviously proper, in order to secure its independence against the action of the other branches more liable to be swayed by im · pulse, or operated upon by individual, party or sectional influence, to protect it by express constitutional barriers; and it was so done. INDEPENDENCE OF THE JUDGES. - The independence of the judges is equally requisite to guard the constitution and rights of individuals from the effect of those ill-humors which the acts of designing men, or the influence of particular conjunctures, sometimes create among the people themselves, and which, althOugh they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and severe oppression of the minor party in the community. (Commonwealth v. Mann, 5 W. & S. 408.) AN INDEPENDENT JUDICIARY MUST BE A CARDINAL PRINCIPLE. - An independent judiciary must ever be a cardinal principle of constitutional government. It was adopted in forming the federal constitution, both in regard to the express tenure of the office, and in providing a fixed compensation, undiminishable during the continuance of the office. And so in every state in the union this independence is secured, during the tenure of the office, hr constitutional provisions, and judges are made secure from interference from any quarters, with the exercise of their jurisdiction and powers, excepting in the modes prescribed in the several constitutions. These provisions were not the result of a wise philosophy or farseeing policy, merely. They i·esulted, rather from severe trials - experience - in the country from which we have largely derived our laws and many of our principles of liberty. History has preserved numerous melancholy examples of the want of a judiciary independent by law, before it was accomplished in England. UNCONSTITUTIONALITY OF LEGIRLATION ABOLISHING A JUDICIAL DISTRICT. - The judicial office is created by the constitution, and so is its tenure, and the compensation is protected by it when once fixed by the legislature. The amenability of the judges is also provided for, and this excludes all other modes. Thus is independence supposed and intended ~o be secured by the constitution. It must follow, therefore, that any legislation which impinges on the feature of the constitution is invalid. Not only was the judiciary thus made independent, but, as a co-ordinate branch of the government, its protection and existence were sup~ to be completely assured. ID.; ID. - Could the principle of the independence of the judiciary and, at the same time, its integrity as a coordinate branch of the government, have been more effectually assailed than by the passage of the act repealing the twenty-ninth judicial district, and its transfer bodily to another district and to other judges? Even if the commission might, for compensation, endure after all power and every duty under it had ceased - a result I do not admit - the act was not less destructive of the principle of independence with which it was the purpose of the framers of the constitution to invest the judges. What could be more destructive to all independence of action of a judge than the momentary liability, during the recurring sessions Of the legislature, to be dismissed from the exercise of the functions of his office by the repeal or abolition of his judicial district? If, all the while, he must be conscious that he exercises the powers and authority conferred by his commission only by the forbearance of the legislature, although it might be possible that independence of action might still exist, it would be an exception; as a rule, it wOuld be a myth. Such a state of things would follow a rule, the result of affirming the constitutionality of the act in question, would be utterly subversive of the independence of the judiciary, and destructive of it as a co-ordinate branch of government. The case of the twenty-ninth district this year might become that of any, or half, the other twenty-eight districts next year, for reason quite as legitimate as those operating to procure iti. repeal. Establish this power in the legislature, and it will be as eaS)', as it will be common, for powerful corporations and influential citizens to move the legislature to repeal districts, and supersede judges who may not be agreeable to their wishes and interests, 3nd transfer their business to other jurisdictions supposed to be more favorably inclined. This would be destructive of all that is valuable in the judicial office, and preservative alone of those evil qualities which flow from a subverted and subservient judiciary. ID. - I think in this state there has never been known a more palpable and direct blow at one coordinate branch of the government by the others, or one .so destructive of th<! uses for which it was established, as is contained in this act, though undesigned, we must believe. If there were no special reasons for holding it unc6nstitutional, these general views would require it so to be held. TENURE OF OFFICE CANNOT BE TERMINATED BY LEGISLATIVE ACTION. - The constitution, after providing for the election and commissioning of judges, fixes the tenure of their offices, by providing that the " president judges of the several courts of common pleas, and of such other courts as are or shall be established by law, and other judges i·equired to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well." Judge Gamble's commission had nine and two-thirds years to run, when the act in question was passed. By the express terms of the condition it was inviolable, by any authority for any other cause, during the period, than a breach of the condition, in the commission, for good behavior ; and, as already said, that could be redressed only by impeachment, or an address by the legislature. This is the mode fixed and ordained by the constitution, and is utterly incapable of being supplied or supplemented, directly or indirectly, by legislative action. THE JUDICIAL OFFICE IS INCAPABLE OF ANY LIMITATION BUT TH_.\T ATTACHED TO IT. - This is a constitutional grant of the right to exercise the powers and authority belonging to the office of president judge, and is incapable of any limitation but that attached to it. If this were not so, and it might be changed by legislative action, then would the authority of the constitution be subject and subordinate to legislative authority - a position not to be entertained for a single moment, especially when it is remembered that what the constitution itself ordains is so much of the sovereign power withheld from the legislative power. ID. : POWER TO REORGANIZE COURTS. - The aggregate of the duties of a judge in any given district may be materially diminished by a division of his district, or by the election of an assistant. But that grows out of a power to reorganize or regulate the courts - a power not withheld by the constitution, leaving the authority and jurisdiction pertaining to the office intact; and is quite a different thing from taking them away in toto. Their extent may, it is admitted, be changed, increased or diminished by a reorganization of the courts. This is an express provision of the constitution, and a condition to which the office is necessarily subject. With these exceptions, no other legislative interference is legal or constitutional. ID.; PROHIBITION IMPLIED IN THE GRANT AND TENURE OF OFFICE. - The grant and tenure of the office of judge are fixed by the constitution, and are necessarily an implied prohibition of all interference with it, in these particulars, by any other authority. 490 THE LA WYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS <Continued) ID.; THE OFFICE AND TENURE OF OFFICE ARE INSEPARABLE AND THE LEGISLATURE CANNOT TAKF: THf..;1\I AWAY DURING THE LIFETIME OF THE COMi\IISSION. - The constitution ordains that the office of president judge shall continue for ten ye.us, and this fixes inevitably the duration of the authority and powers which constitute it an office. They are inseparable; and it establishes that the legislature, by an ordinary act of legislation, cannot take them away during the life-time of the .commission. ID.; ID. ;-If the legislature could blot out a district, it could limit the duration of the commission granted to a Jess period titan len years, if it might so choose. That, it cannot Sl!o1ten the tenure of the office of a judge, as fixed by t.he constitution, is certain, and this ought to establish that it enn pass no act to do by indirection that which may not be done directly. ID. ; ID.-The net displaces . J udge Gamble as the prC'sidC>nt judge, and appqints Judge White and his law associate to hold th.;: courts therein. If such a thing can be done in one district, it may be done in all, and thus, not only would the independence of the judiciary be destroyed, but the judiciary as a co-ordinate branch of th-:! governmf'nt, be essentially annihilated. Sl..!J..W v. Leonard, RG Tenn. 485, 7 S. lV. 453. / CONSTITUTIONAL LAW; CONSTITUTIONAL TENURE -OF OFFICE CANNOT BE TERMI NATED BY THE LEGISLATURE. -Acts. Tenn. 1887, c. 84, repealf'd Acts Tenn . 1885, c. 71, under which defend&nt had been duly elected to the office of county jud.~f' t.f Marshall county, and conferred the power and duties incidf'':'lt to it on the chairman of the county court . H eld: That thb aet could not deprive dC'fondant of office for the remainder of the term for which he was elected, under Const. Tenn. art. 6, providing that the terms of office of the judges of such !r.!erior courts as the legislature from time to time shall establish shall be eight yeai:.s. IBID.; IBID.-The act of 1887 did not attempt to abolish or diminish the powC'rs .and duties appertaining to the officC>. It sim· ply repealed .<>o much of the act as applies to Marshall county, <i:.n· ether county having had a similar chance made in its court system bv the same act) and undertook to re-establish the office of chai~an of the county court after thi: first Monday in April, 18R7, und to vest in these officers all lh{: rights, privilrges, jurisdiction, duties, and powers pertaining to the officers as established and e'll;ercised by the count.y judge. If this legislation had merely named the defendant, :md by name and tit!~ removed him from the pcsi+ tion, and given it to another, it would not have more directly ac· complished the purpose actually effected, if this be valid. IBID.; PURPOSE OF THE CONSTITUTION IN FIXING THE TERMS OF JUDGES.- The constitution in fixing the terms of ~ he judges of inferior courts elected by the people at £.-ight years intended not only to meke' the judici~.ry independent, and thereby secure to thf' people t.he cor:esponding consequent advantages of courts free from interfereuce and control, and rernDved from all necessity of being constant and f:-equent experimenting with county systems, than which nothing could be more injurious or vexatious to the public. It was intended when the legislature established an inferior court that it should exist such a length of time as would give O"!)portunit.y for mature observation and appreciation of its benefits or disadvantages, and that the extent of its durebility might discourage such changes as were not the result of most mature consideration. IBID.; THE CONSTITUTION' GUARDED THE JUDICJAL DEP AR TM ENT AGAINST BEING AT THE MERCY AND WHIM OF EACH RENEWING LEGISLATURE.-Realizing that a change, if made, to constitute an inferior court, would fix that court in the system of eight years, a legislature would properly consider and maturely settle the question as to the propriety and desirability of such change ur addition to our system ; and, conscious of the impropriety and the hazard of leaving the judicial department. of th!! v.overnment at the mercy and whim of each renewing legislatureitself elected for but two years,--the framers of the constitution wisely guarded against these f'vils by the section referred to. Properly construed and enforced it is effectual for that purpose. Disregarded or impaired by such interpretation as leaves it to exist in form, without. force or substance, and we have all the evils and confusion of insecure, changing, and dependent courts, frequent and constant experime11ting with ·systems provided in haste, tried in doubt, and abolished before their merits or demerits were understood. It would be a mortifying reflection that our organic law maker intended any such result in their advanced efforts to make a goYernment of three distinct independent departments; and still more humiliating, if we were driven to the conclt:sion that, while they did not intend it, they had been so weak or in~pt, in the phraseology adopted, a!' to have accomplished it. Neither the intent nor the l3nguag<" of the constitution employed to express it for· tunately bears any such construction. IBID. ; JUDGES ENTITLED TO THE PROTECTION AGAINST UNCONSTITUTIONAL LEGISLATION DEPRIVING 'fHEM OF THEIR OFFICE.-Whcn the court whose judge is elected by the people of one or more oounties in c\istrict or circuit is com'tituted by the legislature, and an election had, and the officer commissioned and qualified, it is !lOt in the p.:>wer of the legislature to take from him the powers and emoluments of office durjng the term of eight years by devolving these inti:.ct upon ano~her, or otherwise. The court so constituted, and judge elected, in this mstance, was under the authority to establish inferior courts already quoted . The incumbent of the office was a judicial officer of this state <State v. Gleen, 7 Heisk, 486; State v. McKey, 8 Lea, 24) and is entitled to the protection of the constitution as such, :;gainst unconstitutional legislation to deprive him of his office. IBID.; THE CASE AT BAR DISTINGUISHED FROM STA'l'E V. CAMPBELL AND STATE V. GAINES. - It is is argued, however, that thio. act of removal is the zame as the act ab0lishing a circuit court, with all its powers and jurisdiction, from the con>:cqurnces of which it has been held hy this court a circuit judge would be deprived of office. State v. Campbell, <M.S.J; State v. Ga:nes, 2 Lea, 316. The act construed in these cases w:i.s one abolishing the Second circuit court of S!-.1.'lby county,-the First and Second . AR one was enough to do the hui.iness of the county, or supposed to be, thf' legislatun: abolished this court, leaving the entire business of both courts to be done by th• first; thPrP.ufter to be styled .;The Circuit O>urt of Shelby County." It was held in the cases referred to that the legislature might abolish a circuit court, held for a circuit or given territory, 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 those cases, (to the reasoning of which we do not sub-scribe) and whieh 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 presents no such question as that determined there. The act of 1875 construed had abolished the court. It did not leave the court with all its powers, jurisdiction, rights, and privileges intact, and devolve them upon another, as in this cas~. Here the court was left as it existed, except the change made in ils official head. He was simply remov<?d by the operation of the act, if it could take effect according to its terms, and another put in his place. IBID.; IBID.- It cannot be doubted that, if the legislature had suid in the act of 1875, as in the act now being construed, that the office {)f the ju<lge of the Second circuit court shot:ld be abolished, and that the court should remain, with like jurisdiction and duties, hut these should he exercised by :.tnother officer, leaving the Firat circuit court also existing with its original jurisdiction and duties only,-that such would have been cieclared v_ oid. Nor can it be <liubted that if the legislature should now declare that the office of a given circuit is hereby abolished, leaving the circuit and its court machinery as it, except the removal of the p.residing judge, such act would be void. If this were not true, the legislature, at its next or any subsequent session, might pass a law setting out the October 31, 1954 THE LA WYERS JOURNAL 491 MEMOHANDUM FOR PETITIONERS (Continued) circuits and chancery divisions by numbers, and declaring that the office of judge of each be abolished. IBID. ; CONSTITUTIONAL TEST.-lt is nc argument in answer to this to say that the lcgislnture will not do this. It is not a question of what they will do that we are now considering; it is a question of constitutional power of what it can do. The question as to how such power is granted, or restraint imposed, cannot be determined on the probability or improbability of its exercise . If it can abolish in this way the office of county judge, it can abolish the office of any inferior judge, as all are alike protected or not protected by the clause of the constitution 1·eferred to. IBID.; THE INDEPENDENCE OF THE JUDICIARY MUST BE GUARDED AGAINST RASH AND CONSTANT EXPERI· MENTS OF LEGISLATION.-For the hon0r of the framers of the Constitution, 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 offer s us much satisfaction to give the constitution its plain, rational, and unobscure 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. But if there were, it would c.fford us pleasure to overrule it. State, ex f'el. Gibson 'ti. Friedle11 21 L. R. A., 634 CONSTITUTIONAL LAW; THE LEGISLATURE CANNOT LEGISLATE OUT A JUDGE.- The Constitution of Indiana provides that the circuit courts shall each consist of one judge, that the state shall, from time to time, be divided into judicial circuits, a judge for each circuit shall be elected by the voters thereof. He shall reside within his circuit and hold his office for a term of six years, if he so long behave well. The Constitution 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 yE.are: Held: It seems beyond the power of the legislature to legislate 9. 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. The authors c.f our constitution well understood the long struggle for many years previous to secure the independence of the judiciuy and the tenure of office of the judges; hence th<? Constitutic.n divides the powers of the state government into three distinct co-ordinate departments, carefully excluding any control of one over another. If the les:isIature, by a special act, may remove one judge or cne prosecutin~ attorney, it may remove any and all such officials in the state. and hence they wculd be at the mercy of any legislature whose ~mity or ill·will they may have incurred. ID.; LEGISLATURE CANNOT TRANSFER THE ENTIRE CIRCUIT OF ONE J UDGE AND ATTACH lT TO ANOTHER CIRCUIT.-If the general assembly can transfer bodily the entire territory which constitutes the locality in which the judg.-: or prosecuting attorney :may lawfully exercise the functions and dutiPs of his office, and attach that territory to another circuit, then it can strip the incumbents of their respective offices as effectually as it is pcssible to do so by any words that can be used. It is, il"I fact, as m11ch 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. It is not tn be assumed that the framers of the constitution builded it so unwiPely as to se,•ure 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 year.!!, If he so long behave well, and by the same organic law intend~d that the general assembly might remove him, at it.> will, from the exercise of all the privileges and duties pcrtainin,e thereto, with· out a hearing, without a conviction :for misconduct, under the guii,:e of "from time to time dividing the state into judicial circuits." ID.; LIMITATIONS OF THE LEGISLATIVE POWER TO fJIVIDF. THE STATE INTO CIRCUITS.- The division of the state bto judici1"1 circuits may be exercised by the legislature, where the act does not legislate judges and J)l'osecutors out of their respective cffices, but nut otherwise. The general assembly may add to, or may take from the territory constituting a circuit. It may create new circuits. It may abolish a. ci;cuit, if the act be made to take effect at, and not before the expiration of the terms of office of the judge and prosecutor of such -:::ffice, as constituted, at the time of the act. The genel'al assembly ha!' ~he power, 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 cnly to the restrictions that t-he legislature cannot, by any legislation, abridge the official terms of either cf such officers, nor deprive either of them of a judicial circuit, wherein he may serve out th& constitutional term fer which he was elected . State ex 'rel, v. L?°nk, Sup. Ct. of Tenn., Jan. 15, 1948, 111 S. W. 2d 1024. CONSTITUTIONAL LAW; ABOLITION OF COURT OPE&. ATES TO VACATE OFFICE OF JUDGE.-The power to create the office of county judges or judge of other inferior courts was conferred on General Assembly by constitutional provision whicl' authorized estublishment of ''.inferior courts." Terms of all judges, including judges of infel'ior courts, are fixed by the Constitution at 8 years, and their tenure cannot be impaired except where Legislature finds it necessary to redistribute business of courts for 1mrposes of economy and efficiency, and, when such rearrangement r~ sults in abolition .uf the tribunal, it operates to vacate office of judg(' who presid('d over such tribunal. AN ACT WHICH ABOLISHED THE OFFICE OF JUDGE BUT DID NOT ABOLISH COURT OVER WHICH THE JUDGE PRESIDED IS UNCONSTITU·rIONAL.- Where cr.;.mty judge for Stewart county was elected and C•)mmissioned according to law, an act which abolished the office and repealed act which created it, but which did not abolish court over which judge presided, was an unconstitutional exercise of legislative power. State 11, Ma/>ry, Sup. Ct. of Tenn., Nor>. 20, 1953, 178 S. H'. 2d 379. CONSTITUTIONAL LAW; ACT PURPORTJNG TO ABOIJSH OFFICE OP COUNTY .JUDGE INVALID.-Private Act purport· ing to abolish the office of County J udge by repealing the private act creating the court and undertaking to creatu and establish a new county court of Clay County and naming a chairman thereof was invalid as an attempt to defeat the right of the judge thereto elected and holdi:-!g office in accordance with the existing law. IBID.; A JUDGE CANNOT BE LEGISLATED OUT OF OF. FICE.-We cannot close our eyes to the palpable effort to legis-late the relator l3ailey out of office ond substitute in his place and stead anothel' person who is designated in another private act to p('rform the same official duties. Chapter 53 of the Private Acts of 1943 purports to abolish the office of County Judge by repeal. iJ1g the act that created it. Eight days after 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 county judge under the act which was sought to be repealed . The jurisdiction was the same in all respects. IBID.; LEGISLATURE CANNOT REMOVE A JUDGE BY ABOLISHING THE OFFICE.-The legislature cannot remove a county judge by abolishing the office and devolving the duties upon a chairman of the county oourt. IBID.; DISTINCTION BE'l'WEEN STATUTES JNEFFEC· TIVE 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, snd statutes that accomplish removal by abolishing the tribunal and transferring its business to another, was made clear by Mr. J ustice Wilkes in Judges Cases, 102 Trnn . 509 560, 53 S. W. 134, 146, 46 LR.A. 567. 492 THE I~AWYERS JOURNAL October :n, 1954 MEMORANDUM FOR PETITIONERS <Continued) In Re Opinion of the Justices, Supreme Judicial Court of Massa. chusetts, A11ril 15, 1930; 271 Mass. 575, 171 N. E. 237. CONSTITUTIONAL LAW; 'fENURE OF OFF'ICE DURING GOOD BEHAVIOR-The tenure ot office during good behavior imports not only the length of the term but also the extent of ser· vice. When n constitution has made definite provision covering & particular subject, that provision is exclusive and final. It must be accepted unequivocally. It can neither be abridged nor incre:i.sed by any or all of the departments of the government. Commonwealth v. Sheatz, 77 All. 547, CONSTITUTIONAL TENURE OF OFFICE.-When the Cons· titution fixes the duration of a term, it is not in the power of the le· gislature either to extend or abolish it. The legislature has no power to enact a law which, in its effect, would create n vacancy. The case of State 11. Noble, 118 Ind. 350, 4 L. R. A. 101, fully establishes the independence of the judiciary. The legislature cantlllt extend or abridge the term of an office. the tenure of which is fixed by the constitution. In State v. Johnston, 101 Ind 223. it is decided by the court that the general assembly has thf' power, at its di:!cretion, . to divide a judicial circuit, at any time, during the terms cf office of the judge and prosecuting sittorney of such circuit, subject only to the restrictions that the legislatur~ cannot, by any legislation, abridge the official terms of either of such officers, nor deprive eithn of them of a judicial circuit, whe1·ein he may serve out thf' con· stitutional tenn for which he was 1:lected. In Hohe 1!8. Henderson CN.C.J 25 Am. Dec. 704, note 1, it i!' suld: "It is without the power of the legislature to indirectly abolish the office by adding the circuit of the incumbent to anofoer thf'n existing, and this even if it be wi!hin the power of the legislRt.llr? ti') create new or alter old circuits, for that power must be so exr"!r· cised as to leave the incumbent his office. "But if the constitution provides for the durntion of an of· fice, the legislature has no power, even for the purpose of chang· ing the beginning of the term, to alter its duration." In People vs. Dubois, 23 111. 547, the supreme court of lllinois holds that although the creation uf new judicial districts was ex· pressly authorized by the constitution, yet no ne·.v districts could bf! created by which the judge in commission could be deprived of a right to exercise the fuuctions of his office during the con· tinuance of his commission. The court says: "The question is, Can the legislature expel the circuit judge from his office by creat· ing a new district taking from him the territory which constituted hi~ district? The bare reading of the constitution must convince t'Very one that it was intended to prohibit such a proceeding." To vacate the office of a district judge already elected by the people, and 'serving, by an act increasing the number of judges, would clearly be, in effect, the removal of a judge from office wht;n his office was not destroyed. To allow the legislature, while making one llE:W district, to legislate the judge of an old district out of office, and provide for the appointment or election of two new judges, would clearly be vicious in principle, and this is the clnss of legislation which fails withm the constitutional inhibition. Aikman v. Edwards, 42 Pac. 366. "However, we lay no stress upon this lt'gislative dechration, furthe!' t.han as it shows what the General Assembly understood what the Constitution meant. For the term of of· fice of circuit judge being, as we have seen, fixed by the pr. gamt' law, 11nd beyond the control of the Legislature, no enactment that they might indulge in would cause the term to end a day sooner or a day later. All that portion of the third section of tht act above ~uoted, which prescribes the duration of the term, and the election, may therefore be stricken out as superfluous; these matters being regulated by the Conet.itution and general laws of the state." State v. Cothem, 127 S. W, 260. The term of office is four years; this being a constitutional provision it is beyond legislative change. It is g, fixed quantity." State ex rel Goodin v. Thoman, 10 Kan. 191, cited in 74 Neb. 188, 104 N.W. 197, p. 202. Wilson v. Shaw, 188 N.W. 940. Where a city has been reincorporated, but its name, identity, and territorial limits remain the ~ame, a justice of the peace cannot be legislated out of office by the new charter's provision reducing the number of justices, when the Constitution provides that a justice shall hold his office for four years and until his successor is elected and qualified. Gratopp v, Van Eps (1897> 113 .Uich. 590, 71 N.W. 1080. AU the authorities above quoted show conclusively that as long as a court exists the office of the judge also exist.s. Am! this is SCt because a ~ourt cannot be established without clothing it with jUI"isdiction, which is the office of the judge. That is why it was said that a court cannot exist without jurisdiction and judge. And that if the court is stripped of its jurisdiction and the judge is taken away, the court will be a nonentity. Before proceeding to discuss the third proposition that we set forth in this memorandum . (page 41>, shall answer the argumenti. which the Solicitor General advanced in his reply and at the hearing of this case. As to the argument that the action of the petitioners is predicated on the fact that they were not appointed district judges. The Solicitor General has been harping that "if petitioners were appointed to the new district courts, this petition would never have been filed". {p. 20, Answer). Certainly, had the petitioners continued as judges of the Courts of First Instance, under the name of district judges, they would not haYe filed this action. Why? Because of the elementary rule that one who has not sustained nny injury as a result of the cnfotcement of a law cannot impugn the Yalidity of the same. CPeoplc vs. Vera, 65 Phil. 56>. May we remind the learned counsel for the respondents thst Republic Act No. 1186 has not created any new district courts? As to the a""gument that the Supreme Court cannot inquir• as to the intent and pitrposf of the Congress in f>"'OViding in the Act the abolition of the position of judgt!e·atlarge and cadast-ral judges. The Solicitor General predicated this proposition on the prin· ciple of separation of powers. But it is the Solicitor General him~elf who advanced the theory that the purpose of the Act is to Lrush aside the obnoxious practice of rigodon de juecez which we C:eny. We contend that the real purpose of the Act is to legislate out the judges-at·large and cadastral judges and in support of our contcmtion we have cited tl1e speech of the Majority Floor Leader o[ the House, who was one of iht. authors and sp(msors of the bill, in which he publicly acknowledgt-d that the main purpose of the bill is to weed out undesirable judges. Mr. Cooley, in his work on Constitutional Limitations C2d Ed . ., p. 65), says: "'When the inquiry is directed to ascertaining tl1e mii;"chief designated to be remedied or the purpose sought to be accomplished by a "P:nticular proviaion, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory. ·• The Supreme Court has held that. "courts ·can avail themselves cf tlle actual proceedings of the legislative body to assist in the construction of & statute of doubtful import." (Palanca vs. City o: Manila, 41 Phil. f25). Section S of Republic Act No. 1186 is of doubtful import be. October 31, 1954 THE LAWYERS JOURNAL 493 MEMORANDUM FOR PETITIONERS (Contimied> cause it provides that the position of judges-at-large and cadastl'al judges are abolished but the Act itself did not abolish any of the Court:; of First Instance, the exercise of jurisdiction of which w'ls \ested by the Constitution and the Judiciary Act of 1948 in the judges •If First Instance who are the district jurlges, judgcs-atlnrge and cadastral judges. We rf'peat: the powt.r to try and decide civil and criminal cases as prEscribed in the Judiciary Act of 1948 constitutes the office of these judges and when they exercise such jurisdiction, they discharge the functions ,,f their office. As to the argument that tfic latv providing that Jt1dgrs-at-Larg11 and Cadastral J11dg'l!I may b, designated by the Secretary of Justice to any di!ltrict or province to hold co1trt is unconstitutional. It is contended by the Solicitor General that. rnch a provision oi Jaw is unoonstitutional because it violates Article VIII, Section 7, of the Constitu1ion, which provic!es: "No juditc appointed for a particular district shall be designated or transferred to another district without the upproval of the Supreme Court." This promisition is arlvanccd to justify thP abolition of the p()Sitions of Judges-at-Large and Cac!astral Judges. It is not difficult to !"ee how fallacious this argument 1s. Since 1914 we have had judges without permanent statiotls. They were called "Auxiliary Judges" of Courts of First Instance and, at first, numbered seven. CSee Act No. 2347, Section 4). In 1916 the Administrati\•e Code was passed and the provision rl'gurding the positions of seven Auxiliary Judges of First Instance was maintained CAct No. 2657, Section 152>. On March 10, 1917, the Revised Administrative Code <Act No. 2711) was passed, and provided: "Sec. 157. J iulges-at-1.orge.-In addition to the judges mentioned in section 1me hundred and fifty-four hneof, as amended, there sh:>.IJ also be appointed five judges who shall not ~ assigned permanentlr to any judicial district and who .'!hall render duty in such districts, or provinces as may, from time to time; be designated by the Department Head." On March 17, 1923, Act No. 3107, amending Section 157 of the Revised Administrative Code, was passed, increasing the number of Auxiliary Judges from se\'en to fifteen. On March 1, 1933, Act No. 4007 was approved, amending the Revis'!d Administrative Code without touching the provision regarding Auxiliary Judges. The Constitution was approved by the Constitutional Convention on February 8, 1935. As may be seen, at the time of the drafting ot the Constitution, there had already been in this country for many years before, judges with permanent stations called "Judges of First Instance" and judges-at-large known as "Auxiliary Judges." Tht: constitutional Convention did not consider obnoxious the existC !lCe uf J udges-at-Large who could be transferred from one p1·ovince to another, upon the directic:n of the Secretary of Justice, to try cases. What the Constituticnal Convention considered obnoxious was the transfer from one province to another of Judges of First Instance with permanent stations, that is, the District Judges. And in order to stop such practice, which was then known as rigodon de jueces, it provided in the Constitution that "no judge appointed for a particular district {that is, District Judee> shall be designated or transferred to another district without the approval of the Supreme Court." It is evident, therefore, that this provision of the Constitution refers to District Judges or jud~es appointed for particular districts . How, then, can the Solicitor General serio1,_1sly contend that the provision of the Judiciary Act of 1948 regarding Judge,;..at-Large and Cadastral Judges, who can be transferred from one province to another by the Secretary of Justice in the public interest, is violative of Article VIII, Section 7, of the Constitution? There may be instances when it becomes necessary for the court to indulge in presumptions in order to know what the members of the Constitutional Convention had in mind when they drafted a particular provision of the Constitution. Thus, in the Krivenko case, the Court said: "At the time the Constitution was adopted, lands of the public domain were classified in our laws and jurisprudence into agricultural, mineral; and timber, and that the term 'public agricultural lands' was construed as referring to those lands that were not timber or mineral, and as including residential lands. It may safely be presumed, therefore, that what the members of the Constitutional Convention had in mind when they drafted the Constitution was this well-known classification and its technical meaning then prevailing." (Krivenko v. Register of Deeds, City of Manila, G.R. No. L-630, Vol. 12, Lawyer's Journal, p. 577.) In the present case we need not presume, as in the aforecited case of Krivenko, what the Constitutional Convention had in mind, when it drafted Section 7 of Article VIII because the text itself of the provision makes direct and exclusive reference to "judges appointed for a particular district," who are named by the Revised Administrative Code of 1917 as "District Judges." As to the provision in the Act converting the Judges-at-f.,arge and Cadastral Judges to District Judges would constitute a legislative appointment, Secretary of Justice Tuason expressed the opinion at the hearing on House Bill No. 1960 that there should be a proviso in the Act that the actual J udges-at-Large and Cadastral Judges should continue as district judges. "MR. VELOSO (I). But suppose the bill as now proposed intends to abolish the judges-at-large and cadastral judges, would you think that this bill is unconstitutional? SEC. TUASON. Well, that is why I say, - in order to prevent the bill from being unconstitutional, the abolition must contain the proviso that these judges are not to be ousted, they are not to be re-appointed but they are to continue as district judges and their districts are to be determined by somebody or by the Department of Justice." (Transcript of hearing on Murch 17, Hl54 of the Com1nittee on Judi.ciary, House of Re· presentatiues.) Now comes the Solicitor General saying that his Chief (Art. 83, Revised Administrative Code) is wrong, because such a provision would constitute legislative appointment and therefore unconstitutional. He is seconded by our so-called constitutionalists. We sincerely believe, however, that the Secretary oi Justice was right. Let us see the argument of the Solicitor General. ''Had the Congress inserted in Republic Act No. 1186 a provision that the judgesat-large and cadastral judges will continue as district judges, that would constitute a legislative appointment which would be unconstitutional because it is the ex-elusive prerogative of the Executive to make appointments." He cites the case of Springer v. Government of the Philippine Islands, 277 U.S. 189. We submit that the ruling in said case does not argue against the opinion of the Secretary of Justice. In said case the validity of a Jaw creating a voting committee or board composed of the Governor-Genernl, the Senate President, and the Speaker of the House c.f Representatives was questioned. The function of the committee was to exercise the voting power of the Philippine Government as owner of some of the shares in certain business corporations. The Supreme Court held that the law was invalid, because it not only created a committee, which was an office, btit also filled it. The specification of the persons to constitute the board was in fact a legislative appointment. In the case at bar the Act in question does not create a new office. This is so because said Act did not establish any new dis494 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUl\:I FOR PETITIONERS <Cont~nued) trict nor create new Courts of First Instance. Had the Act established new judicial districts and new Courts of First Instance, then we can say that the Act has created new judicial offices for which the judges who will discharge the judicial functions in said Courts must be appointed. But, we repeat, the Act did not create any new judicial office for, are not the Courts of Fil"st Instance created under the Judiciary Act of l!l48 and to exercise the jurisdiction of which the petitioners were appointed, the same Courts of First Instance now existing under Hepublic Act No. 1186? Would the Solicitor General say that the present Courts of First Instance are not the same Courts of First Instance created by the Judiciary Act of 1948 and in which the petitioner-judges were exercising thei1· iudicial functions? Since they are the same Courts of First Instance and the jurisdiction that the petitioners would exercise, if they were made district judges, is the same, no 'new appointments will be necessary, as held in several cases, among which are the following: (1) State v. Manrey, 16 S.W. (2d) 809. (2) State v. Caldwell, 23 So. (2d) 855. (3) Amos v. Mathews {State ex rel. Davis, v. Carlton), 99 Fla. 1, 126 So. 308. (4) Singleton v. Knott, IOI Fla. 1077, 138 So. 71. (5) Whitaker v. Parson, 86 So. 247. (6) Shoemaker vs. United States, 147 U.S. 282, 37 Law. Ed., 170. State v. ft!anrey, 16 S.W. {2d) 809. In 1924 respondent Judge l'o'fanrey was elected to the office of Judge of the 9th Judicial District of Texas for a term of four years, that being the term fixed by the Constitution. When Judge Manrey was elected in 1924 the said 9th judicial district was corn.posed of the counties of Hardin, Liberty, Montgomery, San Jacinto and Polk, and the 75th Judicial District was then composed of the counties of Hardin, Chambers, Montgomery, Liberty and Tyler. In 1925 the Legislature of Texas enacted a statute reorganizing the 75th. 9th and 80th judicial districts. By Section 1 of said Act the 9th judicial district was reorganized so as to be composed of the counties of Polk, San Jacinto. Montgomery and Waller. By Section 2 of said Act the 75th district is reorganized so as to be composed of the counties of Hardin, Liberty, T yler and Chambers. By Section 3 of the Act the 80th district is left as it already was, except that Waller County was removed from the 80th district. It was traced, by Section 1, in the 9th district. Thus it will be seen that by the terms of the new Act the territory of the 9th district was changed by taking two counties, Hardin and Liberty, out of it, and by adding one county thereto, Waller. The territory of the 75th district. was changed by taking one county, Montgomery, out of it, and no counties were added. The only change made in the territory of the 80th district was that Waller county was removed therefrom. Section 5 of said act reads as follows: "The present judges of the Ninth and Sevent~-Fifth Judicial Districts as the same now exists, shall remain the district judges of their respective districts as reorganized under the provisions of this Act, and shall hold their offices until the next general election and until their successors arc appointed or elected and duly qualified, and they shall i·eceive the same compensation as is now, or may hereafter be provided by law for district judges, and a vacancy in either of said offices shall be filled as is now, or may hereafter be provided by law, and the present judge of the district court for the Eightieth Judicial district shall hold his office until his term expires and until his successor is elected and qualified, and a judge of said court shall hereafter be elected at the time and in the manner provided by law by the qualified voters of Harris County." It appears that, notwithstanding the fact that Judge Manrey had been elected in 1924 for a full four-year term as Judge of the 9th judicial district, he again announced himself a candidate for said office in 1926, on account or' the prnvisions of Section 5, supr<i, which provides that the judge of the 9th district shall hold his office until the next general election, etc., and caused his i1ame to be placed on the official ballot, and received the highest number of votes at the 1926 general election for said office. It appears also that in 1928 Judge l\lanrey and Judge McCall were both candidates for the Democratic nomination for said office at the general primary election of the Democratic Party in 1928, and Judge McCall received the highest number of votes and was declared the Democratic nominee. No contest of this election was had, and Judge McCall's name was printed on the official ballot of the November, 1928, general election as a Democratic candidate, and he receiYed the highest number of votes cast in said general election for said office. · On November 6, 1928 Judge Manrcy filed a suit against Judge McCall, claiming that Judge McCall was not entitled to receive a commission to the 9th Judicial District. The question raised was whether the Legislature in creating new judicial districts may appoint judges of previously existing districts to act until appointments of successors at next general election. HELD: We have carefully read and examined the act of the 39th Legislature in question, being chapter 166, General Laws of said Legislature, p. 378. An examination of said act as a whole, including the caption, the body of the act, and the emergency clause, shows clearly that the Legislature did not create any new judicial districts in said act. The act is just exactly what its caption shows it to be-an act to reorganize, not to abolish, said districts, by doing the things shown in the act. If the act operates so as to create a new district, then it created a new office, and the part of section 5 thereof which attempted to appoint Judge l\lanrey as judge thereof by legislative action was nu\! and void, as it is not a legislative power to appoint district judges. Such is an .::xecutive power and is so expressly by the plain terms of our Constitution. State v. Gillette's Estate (Tex. Com. App.) IO S.W. (2d) 984; State v. Valentine (Tex. Civ. App.) 198 S.W. 1006 (writ ref.). However, as above stated, we do not think that the act created new districts at all, but merely reorganized the old districts. It is provided by section 7 of article 5 of the Texas state Constitution that: "The state shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by Jaw. For each district there shall be elected by the qualified voters thereof, at a general election, a judge, who shall be a citizen . .. who shall hold his office for a pe1·iod of four years .. If the Legislature created no new district, and did not abolish the Ninth district then it follows that Judge Manrey having been elected judge of the N inth district in November, 1924 at the general election of that year, for a four-year term, was entitled to such full four-year term under the Constitution and that the part of section 5 of the act of 1925 which attempted to shorten the term and cause a new election in 1926 for such office was in plain violation of the exptess provision of our Constitution above quoted and is null and void. However, this does not affect the validity of the balanc~ of the act. It follows from what we have said that there is no doubt under the Constitution and laws of this state Judge Manrey October 31, 1954 THE LAWYERS JOURNAL 495 MEMORANDUM F'OR PETITIONERS (Continued) was duly and constitutionally elected judge of said Ninth dis· trict in 1924 for a full four.year term, and that, said district not having been abolished, he was entitled to serve out said full term. State v. Caldwell, 28 So. (2d) 855. The Legislature of 1945 of the State of Florida enacted. C_hap,: ter 22821 creating the "Florida State Improvement CQl"Ylm1ss1on, hereafter called the "Commission," and defining its powers an.d duties. On petition of the Attorney General quo warmnto was d1· rected to respondents as members of the Commission, commanding them to show cause why they should not be ousted from office and enjoining them from further exercising the duties imposed on them as such. It is contended that Chapter 22821 is void and uncon· stitutional because it d<.>signates the chairman of the State Road Department as a member of the Commission and in so doing. trenches on the power of the Governor to appoint and suspend officers for designated causes, contrary to Section 27, Article III, of the Con· stitution. "This question is answered contrary to the contention of relator in Whitaker v. Parsons, 80 Fla. 352, 86 So . . 247, Amos v. Mathews (State ex rel. Davis v. Carlton), 99 Fla. 1, 126 So. 308, and Singleton v. Knott, 101 Fla. 1077, 138 So. 71, the gist of the holding in all these cases being that State and .county offices may be created and the duties of the holders defmed by statute or the Constitution. These cases are also authority for the doctrine that the legislature may impose additional powers and duties on both constitutional and statutory officers so long as such duties are not inconsistent with their duties imposed by the Constitution. This court has accordingly approved the rule that the legislature may nmke an e:x:isting officer the mem· beT of another and differsnt board by enlarging his duties. If the chairman of the Road Department should be suspended as such, he would likewise be suspended as a member of \he Commission." WhitakeT v. Parsons, 86 So. 247. HELD: The Legislature, having all the law·making power of the state that is not withhdd hy the Constitution, may prescribe duties to be performed by officers expressly provided for by the Constitution, in addition to the duties of those officers that are defined in the Constitution, where not forbidden by the organic Jaw; and the Constitution does not withhold from the Legislature the power to prescribe additional duties to be per· formed by the state treasurer, or others of "the administrative officers of the executive department," that are not inconsistent with their duties as defined by the Constitution; and such du· ties may be to act as members of boards or commissions in conjunction with other officers who are provided for by statutethe commissions issued to constitutional officers being sufficient to cover any duties imposed upon them by law. In such cases the incumbent does not "hold or perform the functions of more than one office under the government of this state at the same time," within the meaning and purpose of that quoted provision of the Constitution. In providing (section 1, c. 7345, Acts of 1917) that "there is hereby created and established a board to be known and designated as the state live stock sanitary board, which shall be composed of the commissioner of agriculture, the superintendent of public instruction, the state treasurer, and two other members who shall be appointed by the Governor," the statute merely authorizes the appointment of two officers by the Gov· ernor, and imposes duties upon the three state officers who, with the two officers appointed, constitute the state board, with designated duties. This does not create new offices for the three state officials. It adds new administrative duties to existing administrative offices. The duties imposed are not in consistent with the duties defined in the Constitution. ... when a statute provides that stated officers shall con· stitute a board with administrative functions, no new offices are thereby created, but new duties are imposed upon officers already in commission. Shoemaker vs. United States, 147 U.S. 282, 37 Law. Ed. 170. There are several features that are pointed to as invalidat· ing the Act. The first " is foun~ in the provision appointing two members of the park commission, and the argument is, that while Congress may create an office, it cannot appoint the of· ficer; that the officer can only be appointed by the President with approval of the Senate; and that the Act itself defines these park commissioners to be public officers, because it pres· cribes that three of them are to be civilians, to be nominated by the President and confirmed by the Senate. This, it is said, is equivalent to a declaration by Congress that the three so. sent to the Senate are "officers," because the Constitution provides only for the nomination of "officers" to be sent to the Senate for confirmation; and that it hence follows that the other two are likewise "officers," whose appointment should have been made by the President and confirmed by the Senate. HELD: As the two persons whose eligibility is questioned were at the time of the passage of the Act and of their action under it officers of the United States who had been therefore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the Act, it was ne· cessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it haR frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed. As to whether the Legislature ha11 the power to increase or di· minish the mimber of Justices of the Supreme Court. During the oral argument one of the Justices propounded the following question to the Solicitor General: If the Legislature can abolish the positions of Judges·at.Large and Cadastral Judges, don't you think that it can also increase or reduce the number of Justices of the Supreme Court at its pleasure? The answer of the Solicitor General, if we remember well, is that the legislature cannot do that because the members of the Supreme Court are constitutional officers. We do not agree to this. Article VIII, Section 40, of the Constitution reads as follows: "The Supreme Court shall be com· posed of a Chief Justice and ten Associate Justices and may either sit in bane or in two divisions unless otherwise provided by law." The undersigned, who was then the Chairman of the Committee on Judiciary of the Constitutional Convention, explained that the words "unless otherwise prnvided by Jaw" referred to the number of Justices to compose the Supreme Court as well as their sitting in bane or in two divisions. This appears in the record of the Con· stitutional Convention. We take this occasion to explain why this is so. During the proceedings in the Constitutional Convention, the Supreme Court was interested in the creation of the Court of Appeals in order to remove the congestion of cases in the Supreme Court, for according to the Justices, such situation would always exist unless an intermediate appellate court was created. The Chief Justice securerl a commitment from President Quezon that such court would be created in the Constitution. However, the plan of the Chairn1an of the Committee on Judiciary was to increase the number of the members of the Supreme Court to twenty.four, dividing it into civil and criminal divisions like the Supreme Court of Spain. So he was opposed to the creation of the Court of Appea'.ls. President Quezon then invited the members of the judiciary to a conference in his 496 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS (Continued> house. In the conference there were present on the part of the Constitutional Convention its President, Delegate Recto, Delegate Briones, and the Chairman of the Committee on Judiciary. On the part of the Supreme Court were present Justices Avancefta, Imperial and Abad Santos. President Quezon asked the Chairman his reasons for opposing the creation of the Court of Appeals. After expressing his reasons, and the justices having likewise given theirs, President Quezon decided to leave the question entirely in the hands of the Convention. The Convention rejected the creation of the Court of Appeals, leaving to the discretion of the Legislature the creation of the same. The reason advanced was that, since the Court of Appeals was to be established for the fi rst time in this country by way of experiment, the same must be created by the Legislature so that in case the e.xperiment fails, the Court of Appeals may be abolished by law and the congestion of cases in the Supreme Court may be i·emedied by increasing the number of its Justices. Such is the history of the provision of the Constitution that unless otherwise provided by law, the Supreme Court shall be composed of a Chief Justice and ten Associate Justices. Now we come to the question propounded to the Solicitor General. If the provisions of Republic Act No. 1186 abolishing Judgesat-Large and Cadastral Judges is constitutional, then the Legislature may at any time decrease the number of Justices from eleven to sev('n and add four more JustiN!b to the Court of AppealS, or may increase the number of Justices of the Supreme Court to sixteen, for example, and later on abolish the positions of the additional justices as it pleases. In other words, the position of the members of the judiciary, from the Justices of the Supreme Court down to the .Justices of Peace, will be at the mercy of the Legislature. We repeat in this connection what Chief Justice Snodgrass said: "It is no argument in answer to this to say that the Le· gislature will not do this. It is not a question of what they will do that we are now considering; it is a riuestion of constitutional power, · of what it can. The question as to how such power is granted, or what restraint imposed, cannot be determined on the probability or improbability of its exercise." -IIITO AVOID HOLDING SECTION 53 OF SAID ACT UNCONSTITUTIONAL ON THE GROUND THAT IT I NFRINGES THE CONSTITUTIONAL PROVISION GUARANTEEING THE TENURE OF JUDICIAL OFFICE, THIS COURT MAY DECLARE THAT SAID ACT OPERATES PROSPECTIVELY. This proposition is discussed in the Memorandum of Attorney Salazar. - IVIF THIS COURT .W ILL DECLARE THAT REPUBLIC ACT NO. 1186 HAS ABOLISHED THE OFFICE OF THE PETITIONERS AND HAS TERMINATED THEIR TERMS OF OFFICE, AND WILL FURTHER DECLARE THAT SAID ACT IS CONSTITUTIONAL, THEN THE CONSTITUTIONAL PROVISION GUARANTEEING THE TENURE OF JUDICIAL OFFICE WOULD BE A MYTH AND NO MEMBER OF THE JUDICIARY, FROM THE JUSTICES OF THE SUPREME COURT TO THE JUDGES OF THE JUSTICE OF THE PEACE COURTS, WOULD BE SECURE IN THEIR OFFICE WHICH, IN THE LAST ANALYSIS, WOULD BE AT THE MERCY OF THE CONGRESS. This proposition is discussed in the Memorandum of Attorney Sebastian. CONCLUSION It cannot be gainsaid that the removal of the judges by the Congress has considerably affected the prestige of the judiciary. No political party has ever remained--or can hope to remain-in power forever. After some future general election, another political party which will succeed the party in power may do what the present 1mrty has done, that is, eliminate judges of the past administration arl'd place in their stead new judges belonging to the winning party. It is the general belief that the elimination of some judges by the present Congress was motivated by political expediency and this impression is bolstered by what appeared in the newspapers in connection with the appointment of the new judges. Take, for instance, what appeared .in the Manifo Times of July 28, 1954 (page 5, column 5). It reads: "A number of appointments in the judiciary will be opposed by commission members, especially those from the House who had vigorously protested the appointments' on the ground that they had not been consulted, and that such appointments failed to conform with a principle laid down by the party regarding party loyalty." The Evening News of July 24, Hl54, page 23, first column, carries the following under the heading of "8 Judges Bypassed": "The Judiciary committee of the commission on appointments today decided to bypass the appointments of eight district judges named by President Magsaysay on the ground that their qualifications do not conform with the new standards agreed upon in a Malacafiang caucus. "This was disclosed by Senate :Majority Floor~leader Cipriano P. Primicias who admitted that one of the criteria for judges set forth at the Palace meeting was loyalty to the Nacionalista party. "Primicias would not divulge the names of the eight judges 'for obvious reasons'." This corroborates to some extent the observations made by Senator Paredes in his speech during the deliberations of Senate Bill No. 170, pertinent parts of which are reproduced hereunder. ''Senator Laurel, as a member of the Supreme Court, has laid the rule that should be followed, and I believe it is only proper to bring his ruling bt'f'lre the attention ,1f this Senate. In the celebrated case of Zandueta cited here this morning, it was helci by Ju:otice Laurel that a reorganization that deprives a judge of his office is not necessarily unconstitutional. But any reorganization may become unconstitutional if the circumstances are :.:uch as' to i-how that the intention of the reorganization ls to put out a member of the judicia1·y by legislation· I will not charge anybody with any hidden intention or improper motives in this bill, but if the question is ever presented to the Supl'eme Court by any judge who may be affected by the provisions of this bill which I suppose will be approved this afternoon, I feel, Mr. President, that if the circumstances - preceding, coetaneous and subsequent to the approval of the bill- are p1·esented to the Supreme Court, the constitutionality of the bill will be seriously endangered. If the motives of the Congress in reorganizing are simply public policy, public welfare, public service, and the prestige or the protection of the judiciary and the members thereof, there can be little question about the constitutionality of the bill, but otherwise, the bill is unconstitutional. "Let us now, Mr. President, examine the circumstances attending this reorganization, and then ask ourselves whether or not our protestations of good motives are likely to be given credence by the courts. For the last seven years, the administration was controlled by the Liberal Party. The Nacionalista Party being then in the minority, had always been complaining against the acts of the Liberal Party administration. Right or wrong, there were alleged irregularities committed and which were the subject of attacks and complaints on the part of the members of the minority pal'ty, then the Nacionalista Pal'ty. The Judiciary was not free from these attacks and from these charges of irregularities. The Judiciary was also accused of having become a tool of the Chief Executive in the dispensation of justice. Comments were made, attacks were freely hurled during the campaigns against members of the Judiciary or the way in which the members of the Judiciary performed their duties. Main subject of attacks was the frequency with which the Secretary of Justice assigned judges to try specific cases October 31, 1954 THE LAWYERS JOURNAL 497 498 MEMORANDUM ~'OR PETITIONERS <Continued> and attributing to this action the ulterior motive of securing the conviction or the acquittal of the accused in criminal cases. Since the elections and after the new administration was installed into office, what did we notice in the matter of changing employees and reorganizing? In the Executive D_epart~ent, not only have the high officials had to present t~e1r 1·es1g_nation out of propriety, but even those who were holding techmcal positions and who ordinarily would not be affected by changes in the leadership of the government, had to resign, and I say "had to" because they were asked to resign, or else.... So they did resign one by one. They quit their positions, because they were asked to. "And that was not enough. In the provinces changes were made. I will not now say that legislat ive violations were made, changes were made in the Executive Department, gov~rnors, mayors, councilNs, board members were changed from Liberals to Nacionalista. There seems to be a craze of changing personnel, ousting all the Liberals, all those who belong to the. Lib~ral party, and putting in their places members of the Nac10nalista Party. Very natural, that was to be expected. For so. many years has the Nacionalista Party been deprived of the opportunity to control the government, and this being the first opportunity of the Nacionalistas, it is only natural that they should wish to place their own men in order to be able to carry . out their promises. They did not have confidence in the members of the Liberal Party. It was their right and privilege and duty to themselves, I should say, to bring new men to carry :)•.?t their policies. " Mr. President, this was done, not only in the executive and also the elective positions. In the Department of Foreign Affairs, soon after the assumption to office, the Secretary announced publicly and openly that all the members of the Department of Foreign Affairs should resign notwithstanding the fact that there is a law protecting them, the tenure of their office being assured on good behavior. Then investigations against members of the Foreign Service started, all with the end in view of removing incumbent Liberals. "The same was done in the bureaus. Chief of Bureaus were asked to resign. Some of them did, others did not, but finally had to give up their place in favor of new ones, all belonging to the Nacionalista Party. This series of similar acts following the same standard will help discover the intention of this judiciary reorganization bill. "As to the Judiciary, there is no way of laying off the judges. The judges cannot be asked simply to resign because the Constitution protects them. There is a need to follow a different course if we want to change those who, during the former regime or administration, were suspected to being a tool of the Executive. A teorganization to get rid of them would be a most convenient course. x x x x x x "If I may resume now, in the judiciary, there is an nbsolutp impossibility of asking any body to resign if he does not want to, because he is protected by the Constitution. That will be presented to the Supreme Court. N<Jw, as for other coetaneom; circumstances. What was don<> in the matter of the appropriJtion law in order to facilitate legislating out some of the employees, civil service men? L•Jmp sum appropriations were requested for certain offices, but which were not granted by the Senate because the Senate, I am proud to say, represented by the distinguishf!d gentlemen cf the majClrity and also joir..ed by a few members of the minority, saw fit to oppose that objectionable move, or at least s~w fit to act in such a way as to avoid any posibility of suspicion. But other facts will als<' be brought up, Mr. President, which will add to the series of circumstances that will be used hy those who may question the law, to change the Senate with ulterior motives. What are thos,. facts, Mr. President? I was told right this afternoon, when I was on the floor of the Lower House, that no less than the floor leader of the majority stated that one of the purposes of the bill is to get rid of the judges that are no good. This is on record. With such a conf(ossion, how can we say to the Supreme Court, in all sincerity, that our intentions are purely to serve the judiciary. The SecrE:tary of Justice is even quoted as having said that five or six judges will be affected. Take those circumstances into consid~ration, Mr· President, and again the other side will say, "What was the purpose of the reorganization, the evident purpose of the reorganization?" It has been said, first, to equalize, give the same rank, jurisdiction and salary to all judges. The same rank can be accomplished now if we only rn.ise the salary of the lower judges. The cadastra! judge will have the same jurisdiction as the district judge if he is assigned to try all kinds of c.ases. By admini:;trative order, he can have the same rank, although not the same salary and the same name. The auxiliary judges now have the same privileges as a district judge P.xcept the salary. 1f that is the reason for the bill, why not simply raise the salary of these judges so that they may have the same rank as the others. Second alleged motive: To avoid the possibility of these judges being used and assigned from one district to another as they had nllegedly been used and assigned in the pRst, to try special cases and to follow the wishes of the administration. I wish to pay I\ tribute of a<lllliration to the gentlemen of 'the majority for having said that that is their purpose. I believ~d that is the purpose of the gt:ntlemen who authored the bill and sponsored the bill, Senator Laurel. But, Mr. President, that same purpose can be accomplished by simply amending the law, by simply providing that the Secretary of Justice shall net do this het·~after without the consent of the affected judgt> and the Supreme Court. 'fhat would have been a remedy. So, we cannot allege that as the reason for the amendment. Now, what is the other possible and alleged reason? To give all judges the rnme name. Mr. President, I believe this is too childish a reason for a wholesale reorganization of the judiciary. "These being the circumst<".nces, I would ask the gentll'men of the Senate to kindly consider whether our protestation of clean conscience and clear motives are net outbalanced by the preceding snd coetaneou.; circumstances, and whether or not, if we approve this bill we will have any chance of having it sustained by the Supreme Court. It is only the Supreme Omrt which can restore the prestige of out courts and make. the people realize that under our republican form of government the independence of our judiciary can never be destroyed or impaired. The Legislature, though possessing a larger share of power, no more represents the imvcreignty of the people than either the executive or the judicial department. ThP judiciary derives its authority from the same high source as the Executive and the Legislature. The framP.rs of our Constitution have incorporated therein certain permanent and eternal principles, :ind erected an independent judici=Lry as "the depoRitory and interpreter, the guardian and the priest •)f the articles of freedom." It lias been said that of all the contrivances 0f human wisdom, this invention of an independent judiCiary affords the surest guarantee and the amplest safeguard to personal liberty and the rights of individuals. We, tl1erefore, pray that, for the sanctity of the Constitution, the paramount interest of our people, and the in<lependence of the judiciary, this H-morable Court declare: Cl> that Section 3 of Republic Act No. 1186 is unconstitutional insofar :is it legislates out the petitioner;;-judges, and (2) that the petitioners are entitled to continue exercising their judicial functions in the Courts of First Instance of the Philippines in accordance with the Judiciary Act of 1948. Manila, Philippines, AU.gust 21, 1954. VICENTE J .l<'RANCISCO One of the AttoMJeys for the Petitioners 200-205 Samanillo Bldg., Escolta, Manila THE LAWYERS JOURNAL October 31, 1954