5 Mich. 193 | Mich. | 1858
This is an application for a mandamus to compel the Auditor General to pay certain arrears of salary, claimed to
The application is resisted, on the double ground, that the Constitution fixes the only salary lawfully receivable by a judge holding that position, and that the statute did not in law, make any additional provision. It is claimed that if the object of the statute was to create an additional salary to the one contained in the Constitution, then the statute itself would be void, as in violation of the Constitution.
It is suggested on the part of the respondent, that there has been a practical construction, by usage or acquiescence, against the construction set up by the relator, both of the Constitution and the statute. Without deciding hoAV far, if at all, a written Constitution is to be controlled by usage, we do not conceive that the case before us requires any investigation into that field of inquiry. We see nothing in the nature of the questions presented to us, which removes the necessity of examining into the Constitution and the statutes, in the same manner as if these questions had arisen earlier. There has been no such building up of public or private rights, dependent upon one or another construction, as to require or permit the introduction of any rule which the subject would not allow as res integra.
The provisions of the Constitution which are thought to bear upon the question are the following:
Article YI., section two, declares that, “For the term of six years, and thereafter until the Legislature otherwise provide, the judges of the several Circuit Courts shall be judges of the Supreme Court, four of whom shall constitute a quorum. A concurrence of three shall be necessary to a -final decision. After six years, the Legislature may provide
Section six: “The State shall be divided into eight judicial circuits, in each of which the electors thereof shall elect 'one circuit judge, who shall hold his office for the term of six years, and until his successor is elected and qualified.” Section nine: “Each of the judges of the Circuit Court shall receive a salary payable quarterly. They shall be ineligible to any other than a judicial office, during the term for which they are elected, and for one year thereafter,” &c.
Article IX., section one: “The judges of the Circuit Court shall each receive an annual salary of one thousand five hundred dollars.”
The same section provides salaries for the other State officers, and then proceeds thus: “ They shall receive no fees or perquisites whatever, for the performance of any duties connected with their offices. It shall not be competent for the Legislature to increase the salaries herein provided.”
Before recurring to the law of 1851, under which this claim arises, it will not be out of place to notice what was the existing state of things at the time the old Constitution was superseded by the new one.
The Constitution of 1835 vested the judicial power in one Supreme Court, and such other courts as the Legislature might, from time to time, establish. The judges of the Supreme Court were to receive an adequate salary, the amount of which it was left to the Legislature to fix, but not to diminish during their term of office. It was provided that “they shall receive no fees nor perquisites of office, nor hold any
We find, then, in that year, that the same persons who collectively formed a Supreme Court, with appellate jurisdiction only, except in a few cases, presided, each in his own circuit, -over the several Circuit Courts established by law in each organized county. At that time the Court of Chancery had been abolished, and all equity causes orginated in the Circuit Courts. In the exercise of his original powers in the Circuit Courts, each justice of the Supreme Court was called a “ circuit judge.” The language of the statute may be quoted, as not without significance in the inquiry before us. It is as follows: uJEach of the justices of the Supreme Court shall, twice in each year, except in the cases hereinafter otherwise provided, hold a Circuit Court in each of the counties in the circuit designated in his appointment, and in the performance of such duties shall he denominated circuit judge? — R. S. of 1846, p. 353. The Constitution prohibited the Supreme Court judge from holding any other office whatever. He held the Circuit Court by virtue of his constitutional office, to which that additional duty was attached by the Legislature. No
Sirch being the old law, in what respect was it changed by the new Constitution? That instrument provided, that it might be lawful, after a certain period, to organize a Supreme Court, with the powers specified; which should consist of a chief justice and three associates, who should be judges of that court only. It is under this provision that we now act. But this was prohibited until the expiration of six years, during which period another provision was made. No Legislature had authority to create a separate court during this interval. The Constitution itself made full provision how the duties should be performed.
The first thing which strikes any one who compares the judiciary system which Avas to exist during the first six years with that which had existed when the Constitution took effect, and Avas retained under the schedule until the election of new judges, is the identity in principle existing between the new and the old courts. By section ten of the schedule, all cases pending in the existing Supreme Court, were to become vested in the Supreme Court established by the Constitution; and all suits and proceedings in the old Circuit Courts were to be in like manner vested in the new ones. The Upper Peninsula was indeed created into a separate district, but the District Courts there succeeded the Circuits, and had the same powers reserved to them. The constitutional grant of powers to the Supreme Court, did not vary materially, if at all, from the old jurisdiction. The judges who were to pre-.
Under the present Constitution, then, there is nothing in the arrangement of. duties which would render it impossible, or improper, to suppose a unity of official character may have been intended, provided the language used should fairly and naturally lead to that conclusion. And the question arises, Whether two distinct offices have been created, or whether two sets of duties have been attached to one?
The judicial power is vested in one Supreme Court, in Circuit and Probate Courts, and in courts held by justices of the peace. To supply these courts, express provision is made for the election of circuit and probate judges and justices. The Legislature is expressly authorized to provide for the election of judicial officers to perform the duties of a circuit judge at chambers. No provision whatever is made for the election or appointment of Supreme Court judges, until the independent Supreme Court should be established. No provision is made for any salary under that name, although every other State office is expressly provided for. Provision is made
But here it is expressly provided that the circuit judges and no one else shall hold it. “The judges of the several Circuit Courts shall be judges of the Supreme Court” is an exclusive provision not open to qualification; They hold no separate commission. As judges of the Circuit Court, and in no other way, they hold the Supreme Court. Together, they constitute the court: separately, they are circuit judges. There is, under the Constitution, as applied to the Supreme Court first organized, no such thing as a Supreme Court judge, properly so called, out of court. Whoever, by the vote of the electors in any judicial circuit, was chosen to be judge of the Circuit Court, became without further ceremony invested with all the authority conferred by the Constitution in both courts. Every judicial officer is required by Article XVIII., before entering upon the duties of his office, to take an oath to discharge its duties faithfully. An oath to perform the duties of the office of a judge of the Circuit Court would certainly cover any duty devolving upon the person elected.
If the clause in question simply authorized a circuit judge to perform the duties of the office of a judge of the Supreme Court, there would perhaps be room for verbal criticism, the
The language being so appropriate to convey this idea, and the judicial system being substantially as it was when a judge of the Supreme Court, who by law could hold no other office whatever, was nevertheless circuit judge, the most reasonable conclusion at which we can arrive is, that there is but one office, properly so called, created by the Constitution.
Is, then, the salary payable for the performance of one class of duties, or is it a remuneration for all? As before remarked, it is payable by the State among the salaries of State officers. Three of those officers, in addition to their separate duties, constitute two boards, — a board of State Auditors and a board of State Canvassers, each having many and onerous duties. Another is, ex officio, a member and secretary of the Board of Education. These duties are affixed to the offices, by the Constitution itself. The provision against increase of salaries, and fees and perquisites, applies to all of them. It is very true that in their case, as in the case of circuit judges, it is said the officers shall constitute the boards; but if the officer must perform the duties, and if no one else can, it can require no reasoning to prove that what is thus incumbent on him is one of ‘ • the duties of his office.” The salary is not given for one thing or for another. It is given to the Governor, to the Auditor, to the Judge; and it must be understood, as it is plainly expressed, to be the salary for such duties as are imposed upon them officially by the Constitution. The same instrument creating the office, the duties, and the emoluments, they must all be held as belonging together, and constituting a complete guide to the whole matter.
If, then, the Constitution fixed the salaries of the judges, it can make no difference what the Legislature did after-wards. But the law of 1851, organizing the judiciary system, is in no way inconsistent with the Constitution. ■ The whole claim of the relator rests on section 24 (L. 1851, p. 106), which provides that “each of the judges of the Supreme Court shaU receive an annual salary of one thousand five hundred dollars, payable quarter-yearly,” &c. But the sum is the same fixed by the Constitution, and it is not made payable for Supreme Court duties. It is payable to the judges just as the constitutional salary is. And who are the judges? The law is even more specific than the Constitution. Section one provides that “the Supreme Court shall consist of the judges of the several Circuit Courts”; and that “ they shall hold their offices as provided in the Constitution of this State.” It does not in any manner countenance the idea of a separate office. The law conveys no different idea from that derived from the language of the superior instrument, and clearly designs the salary to go to the officers whom the first section recites as comprising the court. No ambiguity could very well arise on any conflicting claims. It would be a very hard rule which would make a law unconstitutional for any such verbal difference as this would be if section one were left out entirely, as it might be without harm, inasmuch as the court is organized by the Constitution. But taking the whole law as it stands, it is a mere reenactment of the Constitution.
We therefore deny the application for a mandamus, without costs.