36 Va. 109 | Va. | 1837
By the 5th article, section 1st, of our present constitution, the judicial power is vested (besides other courts, judges and justices) “in such superiour courts as the legislature may from time to time ordain and establish and the jurisdiction of the judicial tribunals, and of the judges thereof, is to be regulated by law. These provisions authorize the legislature to model the superiour courts (inferiour, however, to the supreme court) in any manner that its wisdom and experience may suggest, and to reform, alter, or even abolish them (taking care to substitute other superiour courts in their place) whenever the good of the country may require it. But lest this remodelling or abolition of those courts should be effected for the unworthy purpose of removing obnoxious judges, and that it might
At the first session of assembly after the adoption of the new constitution, the legislature proceeded to ordain and establish the superiour courts, which they invested with a certain portion of the judicial power. These consisted of the general court, and the circuit superiour courts of law and chancery. The identical judges who composed the general court, formed also the circuit superiour courts : that is to say, each judge of the general court was assigned to some one circuit composed of several counties or towns, and there were exactly as many judges of the general court, as there were circuits. So intimately were these courts blended together, that the law directed the judges of the general court to be commissioned by the executive, as judges of the general court, and of the circuit superiour courts of law
The question in the present case arises from the language of the 27th section of the circuit superiour court law. That section first directs that all the special powers and jurisdiction formerly exercised by the superiour court of law for Henrico, and the district chancery court of Richmond, shall be exercised by the circuit superiour court of Henrico. Jt then directs, that for the trial of criminal causes the judge of the said circuit superiour court of Henrico shall hold three terms &c. and then adds, “ and the judge of the said court shall receive the additional salary prescribed by the act passed January 29th 1823.” It is contended by the counsel for the commonwealth, that this additional salary was given to the incumbent as judge of the circuit superiour court of Henrico, and not as judge of the general court, or as judge of the seventh circuit; and that as soon as the incumbent ceased to be judge of the circuit superiour court of Henrico, he ceased to be entitled to the additional salary. But this, in my opinion, is an entire misconception. The incumbent did not receive the additional salary, nor was it given to him, as judge of the circuit superiour court of Henrico; he did not hold such an office, as a separate office; he was not so commissioned ; but he was commissioned as a judge of the general court, and of the circuit superiour courts of law and chancery for the seventh circuit, to which he was elected and assigned. He could not have received the salary as judge of the circuit superiour court of Henrico, unless the law had established that as a separate court, and he had been elected to that special court, and commissioned as judge of it. This view is entirely confirmed by the act of January 1823, the language of which is, “ that the judge of the general court
Having ascertained the character in which judge Clopton received this additional salary, the next question is, could the legislature, who had given him the fixed salary of 1800 dollars, diminish it during his continuance in his office ? Certainly not, without violating the letter and spirit of the constitution. The legislature may remodel, alter or reform these courts, or any of them. Suppose then they had by law taken away from the circuit superiour court of Henrico, the special jurisdiction above mentioned, and conferred it on some other court (say the general court); or suppose that the criminal business having diminished, they had again reduced the criminal terms to two instead of three; will any one say, that, as these were the original motives for making an addition to the salary, it might now be cut down to the original salary? No—because the salary cannot be diminished during his continuance in the office, that is, in the office of judge of the general court and of the circuit superiour courts of law and chancery.
I am happy to say, that, in this case, no such attempt has been made by the legislature, nor have I any reason to believe it ever will be made. In the act of 25th February 1837, establishing the new twenty-first judicial circuit, composed of the county of Henrico and city of Richmond, there is not one word which takes away from the judge assigned to the seventh circuit, any part of his salary, nor is there any intimation that such was the intention of the legislature.
Parker and Cabell, J. concurred.
By the act of 1323, the judge of the general court assigned to the fourth judicial circuit was entitled to an additional salary of 300 dollars. By the act of 1831 (the new organization) the county of Henrico was made part of the fourth district and seventh circuit; and it was declared that the judge of the circuit superiour court of Henrico should receive the 300 dollars additional salary prescribed by the act of 1823. Thus far there can be no doubt. Judge Brockenbrough, the predecessor of judge Clopton, was entitled to receive and did receive the 300 dollars additional salary. Upon his promotion, judge Clopton was appointed and commissioned judge of the general court and of the circuit superiour courts within the seventh circuit in the fourth district: and as Henrico county was within that circuit, his commission extended to that, and he was, to every intent, judge of that circuit superiour court, and entitled to the 300 dollars additional to the general salary of the judges of the general court. On the faith of these rights, he accepted the office; and in 1837, the legislature severed Henrico from the seventh circuit. This act, however, did not, in terms, take away the 300 dollars additional, nor did it intimate that it should be paid to the new incumbent, judge Nicholas. On the contrary, it gives him 2000 dollars, without abolishing the additional 300 dollars to judge Clopton. If, therefore, the legislature had had full power to take from him that part of his salary, it has not done so.
But, in truth, it could not constitutionally do so. Judge Clopton accepted a commission which made him judge of the whole seventh circuit, and entitled him to all the emoluments of the judge of that circuit; that is,
But in fact it has not done so. There is no provision repealing the salary of 300 dollars. Nor is the salary given to judge Nicholas; for he has an independent salary of 2000 dollars, having neither connexion with nor reference to this 300 dollars. It still remains on the statute book, a salary to be given to somebody. Shall
Judgment affirmed.