County of Shelby v. Six Judges

| Tenn. | Sep 15, 1875

Lead Opinion

McFarland, J.,

delivered the opinion of the court:

An act of the legislature was passed the 4th of December, 1869 [acts 1869-70, ch. 28], providing for a new organization of the courts for Shelby county' — two circuit and two chancery courts, and a criminal court. It provided for an election for judges to hold said courts to he held on the fourth Thursday in May, 1870.

On that day the five judges were elected, and sworn into office on the 7th and 8th of June, 1870, four of the number were still holding their office at the hearing of this cause. A vacancy occurred in the office of the second chancery court by the death of Judge Merger. This was filled by the appointment of Chancellor Scott, and after-wards by the election of Chancellor "Walker, in August, 1872. The eleventh section of the act of the 4th of December, 1869, provides “that the salaries of the judges and-chancellors of the several courts established by this act shall he the same as for the circuit judges and chancellors as established by law, each to he paid' by the state as other judges and chancellors are paid; provided, that the county court of Shelby county may appropriate a sum sufficient to increase salaries of said judges and chancellors not exceeding two thousand dollars each, additional thereto.”

In July, 1870, the county- court made an appropriation in favor of each of said judges of two thousand dollars.

The allowance was subsequently repealed, again renen-acted, afterwards reduced in amount, and finally disallowed altogether by th-e court.

It is claimed by the judges that the county court has no power to rescind the order mailing the appropriation.

Several questions are presented. We can do no more at present than state our conclusions:

1. Is the eleventh section of the act of 1869, in regard to allowing idle county court to , appropriate, a sum not exceeding two thousand dollars to increase the salaries in violation of the constituion? Did the legislature have authority to delegate to. the county court the power to. increase the salaries of the judges, and to levy a tax to pay the appropriation? We think not. By the provisions of-the constiution, judges are to receive compensation for their services to be ascertained by law. Art. 6, sec. 7. The law ascertaining this compensation must be enacted' by the legislature, the only law-making power. This law-making power cannot be delegated to any other body. Dor do we think this result can be avoided by assuming that this part of the act of 1869 was in the nature of a conditional law to take effect upon the happening of the contingency — that is, upon the appropriation being made by the county court, and then stand as if the act had definitely fixed the salaries at the siim of $4,500 — that is, the regular' salary of $2,500, and the $2,000 allowed by the county court. This position we think is wholly untenable. The act does not assume to make these salaries different from the regular salary allowed other judges, but it simply leaves it to the county court to say whether they ought to have more, anid how much more, not exceeding $2,000, and to tax the people within the.county to pay it.

If the question as to any part of the salary could he left to tlie discretion of the county court, it might all he left to that body, and the judge thus left at the mercy of the court so far as the question of salary is concerned. If the salary is to he ascertained hy law, then, in our opinion, the legislature must enact a law, and it cannot delegate the power to any other body, and this is what was attempted to he done hy this provision of the act.

2. We are of opinion that the county court had no power to levy a tax to pay the sums appropriated. The power of taxation is the legislative power, and this by the constitution, is vested in the general assembly. They can delegate this power only to the extent authorized by the twenty-ninth section of art. 2. This is, the legislature shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes in such manner as shall he prescribed by law.

We are of opinion that the courts must determine whether or not the purpose for which the county mav he directed by the legislature to levy a tax is a county '-ur-pose, and if it be not a county purpose, the law to that extent must he declared void. If we hold that the legislature are the exclusive judges of whether or not the purpose he a county purpose, this restriction of the constitution might as well have been omitted, and the power given to the legislature to authorize the counties to impose the taxes without limit. It is the province of thei court to decide when the legislative department has violated con-stituional restrictions.

We will not undertake to define a county purpose, further to say we think this is not. Judges are officers of the state whose salaries are fixed by law, and paid out of the state treasury. We do not think the judges of Shelby county are any exception.

Although, owing to the size and business of the county, instead of embracing ibis county with, others in a judicial circuit and chancery division, the circuits of the county constitute the fifteenth circuit, and the chancery courts the twelfth chancery division. They are no. more, special courts than others similarly situated. It is no doubt true that the people of Shelby county derive more direct benefit from the services of these judges than the people of the state at large, but this is also to some extent true in regard to the' other judges of the state with respect to, the counties in which they hold court. It is to our minds clear that "the county purpose” referred to in the constitution means some purpose peculiarly within the province, as distinguished from those general purposes left to the state at large — such, for instance, as for building bridges, courthouses, jails, taking care of the poor, making public roads, etc.

It is true some of these county purposes, such as building courthouses and jails inures equally to the benefit of the state, but it is well understood that these things are provided for by the county. We think that the purpose cannot, in the sense of the constitution, be -both a state and county purpose. It must be opie or the other. It is either the province of the state or county to pay the salary of the judges, but not the business of both. If the county of Shelby pays her own judges, the other counties ought to do the same, but to require that county to pay the salaries, or any part of the salaries [of the judges] holding her courts, and at the same time compel the people of the county to bear their part of the paying all the other judges of the state, as woidd be, the result would be.' unjust. It may be said the county consents, but this is not so unless the county court has the power to bind the people by its action in this regard, which we think it had not.

But, aside from all this, we cannot see why another provision of the constitution is not violated — that is, against increasing the salaries of judges during the time for which they are elected.

These judges, or four of them, were elected and qualified before any action of the county court in regard to their salaries. Their salaries, as then fixed by law, was $2,500. When, and how was it increased? It seems to us clear that if it was ever increased to $4,500, it was when the county court made the allowance of $2,000, which was during the term for which they were elected. Manifestly, if the county court had never taken this action, it could never have been held that the salaries of these judges was $4,500. As has already been said, we do not think this can be avoided upon the ground that the law fixed $4,500 as the salary to take effect upon the condition that the county court made the allowance. This sort of ingenuity, if allowed to prevail, would, we think, be sufficient tu meet and overcome almost any objection.

The abject of this clause of the constitution against increasing or diminishing the salaries of the judges during the time for which they are elected was intended to make them independent — above the. temptation of resorting to any device inconsistent with their official duty to> have their salaries increased, and beyond the danger of being intimidated by a fear of having their salaries reduced. Mr. Story, on the subject, quotes from the Federalist as follows: “Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Story on the Const., sec. 1629. After these judges came into office, they were dependent upon the county court, composed of all the justices of the county, for an increase of their salaries, and the act by which they are to get the increase, if at all, occurred during their term, and it seems to us clear that the spirit as well as tbe very letter of tbis provision of tb© constitution would be violated by tbis increase of salary.

With regard to Chancellor Walker, be was elected subsequently, but, as we. understand tbe record, at tbe time of bis election tbe allowance bad been rescinded, and was, after bis election, again adopted by tbe court, so- that tbe same reasons apply. It seems to us, at most, that tbis allowance by tbe county court was but voluntary, and made after tbe election- of tbe judges, and might certainly be rescinded during tbe term. In regard to- Judge Nay, of tbe probate court, bis case stands upon a somewhat different ground. The court and office were created subsequent to tbe act of 1869, by tbe act of June 24, 1870 [acts 1870, cb. 86. See Shannon’s Code, sec. 387], and, although bis salary is paid by the county, yet tbe act fixes bis salary at tbe same as tbe judges and chancellors of Shelby county, which, in our view, is $2,500. See T. & S. Statutes, 316b.

"Recognizing, as we do-, tbe meritorious claims of these judges to a just compensation, and appreciating the peculiar circumstances by which they are surrounded, a salary of $2,500 in a city like Memphis, being much less adequate than the same amount in other portions of the state, yet, in our opinion, the relief now asked for cannot be granted without violating constitutional provisions of the highest importance.

The judgment will be according to this opinion.

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Concurrence Opinion

Freeman, J.,

delivered the following concurring opinion:

The question which I propose to- examine in this case is, whether tbe county court is authorized to- levy a tax on tbe people of Shelby to pay or increase the salary of the judges of these courts. If paid at all, it must be paid by taxation, and therefore the right to lay such a tax is necessarily involved.

By the constitution, tbe judicial power of tbe state is vested in one supreme court and such circuit, chancery, and other inferior courts as the. legislature shall, from time to time, ordain and establish. Art. 6, sec. 1. By sec. 7 of said article, it is provided: “The judges of the supreme or inferior courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office, nor hold any office of trust or profit under this state or the United States.” By art. 2, sec. 1, the powers of the state government are divided between the three departments — the legislative, executive., and the judicial. The officers in any one of the offices created or recognized, or provided for in these departments, is a state office, and his salary a charge on the treasury of the state, where a salary is provided by the constitution. That a broad distinction is made in the constitution between state and county officers, is shown by art. 7, sec. 1, entitled, “State and County Officers,” providing that “there shall be elected in each county, by the qualified voters therein, one sheriff, one trustee, one register; the sheriff and trastee for two years, and the register for four years.” Also- for the election, by the justices of the peace, a coroner and a ranger. Sec. 3 provides for the election of a treasurer or treasurers, and a comptroller for the state, thus showing the distinction of the two. classes of officers. — one county and the other state. In fact, this idea is found all through the constitution, and has been uniformly, we believe, acted on since the organization of the state. ~We deem this distinction one of some importance in the solution of the question before us. By art. 2, sec. 29: “The. general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes, respectively, in such manner, as shall be prescribed by law, and all property shall be taxed according to its value upon the principle established in regard to the state taxation.”

The question turns mainly on this clause of the constitution. It clearly defines the powers of the legislature to authorize taxation by counties and incorporated towns— that is, for county and corporation purposes. And in this evidently recognizes these principles as distinguished from other purposes of taxation, not county and corporation, hut for the purposes of that larger corporation, the state. This is made clear by thp requirement that “all property when so taxed for these purposes shall be taxed according to its value upon the same principles established in regard to state taxation,” thus showing clearly that there is. state taxation — that is, taxes to. be levied by the state for state purposes, as contradistinguished from county and corporation, or local purposes. The state taxes for state purposes is provided for in the previous section 28, which provides that “all property, real, personal or mixed, shall be taxed, but the legislature may except such,” among other things, as shall be held by counties, towns and cities for “public or corporation purposes.” Thus, keeping up the idea -of the two kinds of purposes for Avhich property may be held and taxed, the one a state and the other county and corporation. These taxes being for general state purposes, are directed to be levied directly by the legislature, and the mode in which it is to be done prescribed by the constitution. In the other' case, the legislature is authorized to delegate a taxing power to the county and corporation, but is 'restrained in its authority thus to delegate except for county and corporation purposes, as distinguished from the larger and general purposes of the state, as contradistinguished from the local purposes of the county or corporation of a town.

This w^e think is clear and beyond question. It is maintained that counties are but local divisions of the state, parts of its political divisions, and as such their purposes are in fact state purposes. But is this what is meant by the language of the constitution? We think not. Bor if this be so, the legislature had all the power necessary conferred by the 28th section, and the clause giving power to authorize counties and corporations to tax for county and corporation purposes was unnecessary.

It is 'said, however, substantially, that it is a matter of discretion with the legislature to designate what is a county and corporation purpose, and having authorized this tax, it is thereby levied by authority of the legislature, and by the same authority recognized as a proper county purpose. This .would leave the legislature unlimited 'power to authorize counties and corporations to levy all and any taxes the legislature might choose, for all and any purpose the body might designate, and thus the restriction of the constitution as to corporation and county purposes be rendered entirely nugatory. In this view, all taxes levied in pursuance of the act of the legislature by a county or corporation are necessarily valid and constitutional, whatever the purpose might be. We cannot see on this theory but that authority to levy a special tax in Shelby county for the payment of the public debt would not be as valid, if authorized by an act of the legislature, as the levy of one' to build a court house or a-poor house. This, it seems to us, would confound all the distinctions we have cited from the constitution between state and county, as having objects and purposes and organizations different the one from the other, officers belonging to each in their distinctive forms of existence, with official functions, the one state, the other local or county.

We admit it may be more or less difficult to define what is a corporation or county purpose,- so as to include all the objects for which a tax may be authorized. But this does not interfere with the other idea that it is not difficult to say what is a state purpose, and the proper’ object for the levy of the tax by the state by a general law for such purposes. We would say that as to salary of officers, all officers to whom it is provided in the constitution a salary shall be paid, and be ascertained by law, are certainly state officers, and t-beir salaries to be met and paid by a fund derived from the general taxes laid upon the property of the people of the state. That it is legitimate and proper thus to> pay their salaries must be conceded by all, and has been the uniform practice of the state from its organization to the present time. If this be so, it is because it is a state purpose, involving the charge on the state treasury, and we think it follows of necessity, that being a state purpose it cannot be a county or corporation purpose at the same time, unless the two things so definitely distinguished in the constitution are interchangeable, or are but one and the same. Legislative construction furnishes a running commentary, based on the action of the government from its foundation to the present time on this question. "We find the salaries of the state officers all provided for out of the treasury of the state, such as the governor, judges and chancellors, comptroller and treasurer, with various other offices established or created by the legislature, such as inspector of penitentiary, superintendent of insane hospital, and other officers not necessary to be mentioned. It is true, in some cases, there, are fees of office as incidental compensation, but in no case is the burden of the salary of such offices treated as a county or local affair, or charged upon any local division of the state.

Our legislation on the subject of county purposes is equally distinct and clear on this subject. All burdens to be imposed on counties are to be met and provided for by the county court as the representative, legislative, and administrative body of the co-unty. These courts are authorized to build court houses and- public offices for county officers, jails for criminals, may provide for the support of the poor, lunatics and idiots, may pay justices of the quorum court, the county judge or chairman for purchasing tools for overseer of public road, and many other such cases.

These laws passed from time to time indicate with more or less distinctness objects that are state purposes, and such as are county purposes, and as such confided to the management and control of the local governing body — the county court. For these county purposes it would be very difficult to provide a tax by a general law, as the state tax is levied because in one county the rate of taxation necessary to meet the demand on the treasury might be a small one, while in another county it might be as much as that required by the state. These county burdens being variable from year to year, the matter is referred to the county court as a body having charge of the affairs of the county, and best qualified to ascertain the annual demand on the local treasury, and to provide for meeting the same. Thus in these matters the duties that would otherwise fall on the officers of the state are distributed among the governmental subdivisions of the state, and while the machinery of the government is perhaps rendered somewhat more complicated in theory, practically it has far more, efficiency and is made readily to adapt itself to these precise and varied wants of the people of these local divisions of the state.

This being so, as long as these local divisions keeping-alive the peculiar and distinguishing feature of Anglo-Saxon freedom, that- of local self-government, with personal and official responsibility for official action to th© people immediately to bei affected by such action, shall remain so long, must remain the broad distinction between state and county purposes, and state and county officers having the administration and control of the one and the other.

In view of these principles, we think it clear that a judge of court established under the constitution of the state as a repository or part of its judicial power, required by the constitution to leave a fixed salary to be ascertained by law, can never be held to be a county officer in any constitutional sense, nor his salary a charge upon the county treasury, as a county purpose, for which the particular locality can be taxed by its county court. These judges are state judges, and as sucb their salary must be paid by the .state, and not by the county, whose judges they are not.

It is ingeniously argued, however, that the county, of Shelby has a peculiar local interest in having these courts in securing the speedy administration of justice to her people. "We might say that she also has a very large local interest to be represented by the members of the legislature allowed her in the general assembly of the state. It would no doubt be deemed of the first importance to her local interest that she be able to command the services of her ablest men in the legislative body to represent her large wealth and local interests in which no other part of the state has special concern. A large increase of pay might enable men of the largest experience and ability to quit their private occupations and serve the people of the county in the legislature. Yet we take it none will contend that the county court could be authorized to levy a tax to pay the salary of these representatives. Certainly, if interest in the duties to be performed is a proper ground on which to make the pay of the officer a charge on the county, as a county purpose, this would be as strong a case as could be presented.

Without undertaking to say that the definition is full and complete for all practical purposes, we may assume a county purpose, in the clause of the constitution, is anything that appertains to the local administration of the county, peculiar to it as a county or quasi corporation. Such interest as, under the divisions of our state into these local self-governments, may well be administered by the local government, without affecting the interest of other parts of the state. In other words, local needs and exegen-cies are to be met and provided for by the local government, but general needs and wants are to be met and provided for by the state government, which has the control of the whole. Thé state government is over all, and governs by general laws, assessing and collecting its taxes by a general law fixing their rate throughout the state, while the local or county taxation is authorized by the laws of the land, but its amount is to be regulated by the county court, varying from year to year as the local wants of the county may demand.

The judiciary of the state is one of the departments of the state government, organized for the whole state, provided for in the constitution, and a salary required to be ascertained and fixed by law, and therefore is not a local institution, but a state institution, for which the state must provide. It makes no part of the peculiar organization of a county, and is not one'of the interests confided to the management and control of the county, for which the county court is 'authorized to provide. Therefore, its support cannot be charged on the county, but is a burden on the state alone.

Numerous other objections might be stated to the views presented by counsel for the judges in this case. I am satisfied to rest my conclusions on the grounds stated in this opinion in connection with the opinion of my brother McFarland.

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Dissenting Opinion

DISSENTING OPINION.

Nicholson, C. J.,

delivered a dissenting opinion, as follows:

By the act of 1869, ch. 28, the circuit of-Shelby county, the law court of Memphis, a municipal court of Memphis, the chancery court of Memphis, and the criminal court of Memphis, were abolished, and three circuit courts and one criminal in said county, and two chancery courts in said county were created. To fill these several offices an election was ordered to be held the fourth Thursday of May, 1870, the officers elected to hold their offices for the term prescribed by the constitution. It was provided that the judges and chancellors of the several courts established by this act should be the same as for circuit judges and chancellors, as established by law, but the county court of Shelby county was authorized to- appropriate a sum sufficient to increase tbe salaries of said judges and chancellors not exceeding $2,000 each, additional thereto'. At the same time and by the same act, a new circuit court for Shelby county was created, to be held at Bartlette, in Shelby county, but no election was ordered to be held prior to the general election, which was held in August, 1870, under the new constitution.

The judges and chancellors for the several courts so created and established were elected on the fourth Thursday of May, 1870, and still hold their offices; except that upon the death of E. M. Yerger, his place was filled by the election of S. P. Walker, in'1872; and-Pay was elected in August, 1870, and still holds his office.

At the July term, 1870, of the county court of Shelby, in pursuance of the act of 1869, ch. 28, [it] ordered a payment of $2,000 to- the judges and chancellors out of the coiinty treasury, and in October, 1870, this order was declared to embrace Pay. It appears that after paying the compensation so ordered to the several judges for a period of time, at the January term, 1874, the county court rescinded the order made at previous terms for paying compensation to the several judges and chancellors. The foregoing agreed facts were submitted to Judge Henry Craft, elected special judge to fill the place of Judge Halsey, who was incompetent to try the cause.

Upon the facts agreed on, the following issues were submitted to the court:

1st. Is the 11th section of the act of December, 1869, a valid and constitutional provision?

2d. The county court having acted under said section 10 on the 12th day of July, 1870, and 11th October, 1870, ordering and allowing the said judges the sum of $2,000 per annum, to be paid out of the county treasury, is it in the power of the county court to rescind said order during their continuance in office?

"d. Upon the death of said Yerger, and before the election of his successor, Hon. S. P. Walker, could the county court rescind said order so far as it applies to- his office?

4th. If it could, then could it vote and allow him additional compensation after he qualified as chancellor, to-wit: to the extent of $1,500, the said revision having (taken place while the Hon. W. L. Scott, appointed by the governor, was the incumbent of the office?

Judge Craft was of opinion that the plaintiff were entitled to recover on all the issues submitted, and gave judgment accordingly against the county court.

The county of Shelby has appealed.

1st. The first question is as to the constitutionality of the act of December, 1869, ch. 28, sec. 11, which provides that the county court of Shelby county may appropriate as much as $2,000 per annum in addition to the salary payable by the general state.

This act abolishes the existing common lav' and chancery court of Shelby county, and creates and establishes in their stead, common law, criminal and chancery courts for that county.

It is a separate .and independent act to furnish Shelby county alone with the necessary courts for the transaction of all business in that county, whether criminal, civil or chancery in its character. The act was passed by virtue of art. 6, sec. 1, of the constitution, -which authorizes the legislature from time to- time to' ordain and establish such circuit, chancery, and other inferior courts as may be necessary. And in pursuance of art. 6, sec. 7, which provides that the judges of the several courts "shall receive a compensation for their services to be ascertained by law, which shall not be increased or diminished during the time for -which they are elected.”

In providing for the powers .to be exercised by the three departments of the government, the constitution has vested in the legislature the power to ordain and establish ,as many different courts as tbe wants of tbe county may require, and eacb to be distinct and independent of each other, as tbe legislature may determine.

Tbe power is conferred wit-bout limitation, and, therefore, it is competent for tbe legislature to establish a judicial system embracing all tbe counties of tbe state, arranged in circuits or districts; or it may create and establish special courts for such localities as may be deemed necessary and proper, as was said in tbe case of State Bank v. Cooper, 2 Yer., 615. “Tbe territorial limits of tbe jurisdiction and tbe extent and description of jurisdiction that the several courts shall have and exercise, are referred exclusively to tbe wisdom and discretion of tbe legislature.” The act in question is, therefore, free from constitutional objection, on tbe ground that it is specially confined to tbe creation and establishment of courts in one county.

2d. It was tbe policy of tbe legislature until a comparatively recent period to divide tbe state into judicial circuits or districts, arranging tbe same with an eye to as equal a distribution of tbe labor of tbe judges as practicable, and consequently fixing tbe same rate of compensation for tbe several judges filling like places; but there is no constitution restriction upon tbe legislature requiring such equal distribution of tbe labors, or such equality in tbe rate cf compensation. These are matters left by tbe constitution to tbe discretion of tbe legislature. It was therefore competent for tbe legislature in creating courts for Shelby county, in view of tbe peculiar circumstances of tbe case, to provide a rate of compensation for tbe judges of these courts larger than that fixed for other judges. Tbe facts agreed on in tbe case show constitutional reasons why tbe compensation allowed the circuit judges and chancellors in other portions of tbe state would be inadequate in the county of Shelby. Tbe duty as well as thei power is devolved upon the legislature to create and establish just as many courts as are demanded by tbe public wants; and if in the discharge of this duty and the exercise of this power it becomes necessary to provide larger salaries in some localities than in others, there is no restriction upon so doing. There is, therefore, nothing unconstitutional in the act of 1869, ch. 28, sec. 11, so far as it recognizes the propriety of allowing to the judges in Shelby county a larger compen.sation than is allowed to other judges.

3d. But the legislature did not provide absolutely, by the act of December’, I860, that the compensation of the judges should be $4,500. It was provided that their compensation should be the same as other judges, which was $2,500, unless the county court of Shelby county should increase the amount out of the county treasury, not to exceed $2,000 additional. The power to- ascertain the compensation of judges is vested in the legislature, and it is a maxim in constitutional law that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Cooley’s Const. Dim., 116.

But it is not always essential that a legislature’s act should be a completed statute, which must in any event take effect as the law at the time it leaves the legislative department. A statute may be constitutional, and its taking effect may be made to depend upon some subsequent event. Cooley’s Const. Lim., 117; Brig Aurora v. U. S., 7 Cranch, 382" court="SCOTUS" date_filed="1813-02-26" href="https://app.midpage.ai/document/the-cargo-of-the-brig-aurora-burn-side-v-the-united-states-85016?utm_source=webapp" opinion_id="85016">7 Cranch, 382; Ball v. Read, 13 Gra., 78; State v. Parker, 26 Vt., 357" court="Vt." date_filed="1854-03-15" href="https://app.midpage.ai/document/state-v-parker-6575255?utm_source=webapp" opinion_id="6575255">26 Vt., 357.

The meaning of the act of 1869, ch. 28, is that the legislature deemed it expedient and proper that the compensation of the judges should be fixed at $4,500, if the county court should agree to appropriate $2,000 of the amount-out of the county treasury, to do which the legislature, by the act, intended to give the necessary authority to the county court.

The expediency of allowing a compensation of $4,500 was definitely and finally settled by the legislature, dependent alone upon the condition that the county court would appropriate $2,000 in making up the amount. They did not mean to submit to the county court the expectancy of giving the judges $4,500, but merely to determine whether the county court would appropriate $2,000. The question of expectancy is settled by the legislature, but whether the statute is to become absolute as a law is made to depend upon an event to be determined by the county court. Upon the happening of that event, the compensation is ascertained by law to be $4,500.

4th. But the question next presents itself, did the county court have the constitutional power to make the appropriation towards paying the salaries of the judges'? The appropriation necessarily involves the power to impose the taxes necessary to raise the amount. The legislature has the power to authorize counties to impose taxes for county purposes. Const., art. 2, sec. 29. By the passage of the act of 1869, ch. 28, the legislature has virtually declared the successful establishment and operation of the courts created by the act to be a county purpose.

The constitution does not define what are county purposes, but it recognizes county, as political divisions of the territory of the state, essential in republican government; and the duties imposed on them are a part of the proper and necessary burden which the citizens must assume in the process of self-government. The expenses of securing a proper administration of justice, civilly and criminally, are incurred by the counties, and taxes imposed therefor. The relation between -the state government and the county government is so intimate that the distinction between state purposes and county purposes cannot be defined with accuracy, except in the cases in which it is done by the legislature. Courthouses are county purposes, and yet they are essential to state purposes in the administration of justice. The law treats the administration of justice l)v the circuit judges and chancellors as a state purpose, in some respects, and as a county purpose in other respects. The state pays the expenses of criminal prosecution in one class of cases, and the counties in another. The administration of'justice by the justices of the peace in their civil districts and in the county courts is a county purpose, but it is no less a state purpose as part of the machinery of self-government. The establishment of courts, civil and criminal, in the several counties, is not less a county than a state purpose. There is nothing in the constitution nor in the nature and character of the relation between the county and the state which forbids the legislature to^ declare the establishment and maintenance of the necessary courts in a county, a county purpose, and as such to authorize the imposition of taxes to pay the expenses thereof. 15th Mo. Rept., 1.

oth. The next question is whether the county court has the power to reduce the compensation of the several judges by rescinding the order made in July and October, 1870? We have already determined that when the county ordered the appropriation to the compensation of the judges to be made, the condition on which the law fixing their salaries at $4,500 then became absolute. It then falls under the provision of the constitution which forbids the increase or diminution of the salaries during the period for which the judges were elected. This imohibition operates as well upon the county court as upon the legislature. The compensation provided for the judges was not intended simply for the persons who might happen to fill their offices when the law became absolute, but to all who might hold the offices during the constitutional term. The constitution and schedule provides that the terms of all judges, whether elected in May, 1870, or in August, 1870, should hold for eight years from the first of September, 1870.

In confirmation of the viéws expressed, it may be proper to allude to the fact that when the convention of 1870 was engaged in framing the present constitution, the act of 1869, ch. 28, was in force, and the election of the judges fixed therein for the fourth Thursday of May, 1870. This act was recognized hy the new constitution as one- of the laws then in force, and a knowledge of the existence of this law and a recognition of its validity it may well he presumed to have induced the adoption of the provision in the schedule which ordain that “all officers elected at or after the general election of March, 1870, shall hold their offices for the term prescribed in the constitution.”

I am therefore of opinion that the judgment below should be affirmed.

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Rehearing

OPINION ON REHEARING.

Deaderick, J.,

delivered the opinion of the court:

The Hon. J. E. R. Ray, one of the six judges of the said county, has presented a petition for rehearing in the case as to himself.

We have considered the application, and are of opinion that there are no grounds in his case for the modification of the opinion heretofore pronounced in the case.

The petition will therefore be dismissed and a rehearing refused.