*1 6378. In No. Bank. Mar. [Sac. 1954.] Appellants, FRED C. al., L. LAWRENCE PICKENS et Respondents. al., JOHNSON et FRED v. LAWRENCE al., Respondents, C. et JOHNSON al., Appellants.
L. PICKENS et *3 F. Sargent F. for Appellants. H. Bowers Thomas McAllister & Johnson and Walter for C. Frame Re- spondents.
SHENK, appeal judgments J. This isan from in favor Johnsons, husband wife, $4,500 the $15,400, for respectively, actions consolidated for appeal. trial on Pickens, wife, husband and commenced an action in declaratory Sacramento County, involving relief their rights under a lease from the Pickens to the Johnsons of premises by owned rights Pickens. the Their under a eon- equipment
tract of conditional sale of business on premises by leased the Pickens the Johnsons were an brought also involved. The Johnsons action in the same against damages entry the Pickens for the forcible premises. and unlawful of the actions were detainer jury. consolidated for trial and without a tried approaching Before appeal preliminary merits question constitutional raised dis- Pickens must be posed of. The cases were tried before the J. Moncur Honorable 0.
who was elected in 1944 Superior of the Court County Plumas for the years. discharged full term six He duties day (Jan. that office until lást of his term 8, 1951) when pursuant he retired provisions (Stats. Retirement 1937, p. 2204). Act At time this consolidated action Judge was tried Moncur was sitting Superior in the County Court pursuant Sacramento assignment to an to that task chairman the Judicial provided Council as in section 6 act as amended (Stats. 1951, 1951. p. 3694.) assign- At time ment that section provided, and still provides, pertinent in its parts as follows: provisions 6. Justices and retired under the
“Sec. act, long they so of this entitled its allowance, receive a shall be retirement officers State, powers shall not justice but exercise judge except or while under to a court as here- Any justice or provided. inafter judge may, assigned consent, own with his the Chairman of the jurisdiction as, Council in a court like higher Judicial jurisdiction than, that court from which has retired; he assigned powers so shall all and while have of a justice assigned court, thereof. If to sit sitting paid while therein in shall addition to his retirement difference, any, if allowances between his retirement compensation allowance and court to *4 assigned.” which he contention of the the foregoing
It is the Pickens that Judges’ section of the Retirement Act is unconstitutional any judgment by Judge rendered and that Moncur while is void. authority adoption Judges’ As of the Retirement particularly 1951, Act and section as amended in reliance on placed 22a of IV of section the Constitution parts that section pertinent The adopted in 1930. provide power to have Legislature shall “The follows: as employees salaries of retirement payment for the work in the by therefor service qualify shall who State have shall Legislature by law. provided as the State requirements change the from time to time fix and power to minimum include which shall for retirement conditions con- minimum age and minimum attained service, a period of other condi- employees and by such of funds tribution ...” may prescribe. Legislature tions as the foregoing authority of the constitutional section Under establishing in 1931 statute Legislature enacted the (Stats. employees of the state system for the retirement of operation 1442) has been in continuous since 1931, p. and it that time. question presented
In 1948 the was to this court whether upon IV of section 22a of article the Constitution conferred system Legislature provide a retirement Knight v. own for its members. It was held the case Emp. System, Board Administration R. 32 Cal.2d State 547, 410], that section 22a was an P.2d A.L.R.2d “employees” enabling act; that the term included officers state; Legislature that members were officers of Legislature state, and that under the section the was system a retirement for its members authorized to establish Legislators’ provided for in the Law of Retirement 1947. (Gov. 1947, p. validity Code, seq.; 2058.) 9350 et Stats. § upheld unanimous decision of this that statute was court.
There can be no 22a as doubt section construed Knight enabling provision in the case was and is an authorizing provide system Constitution judicial department retirement of the members Law. the state embraced within the Retirement contrary. fact, is here no That there contention to act, stated, adopted in 6 was then in was 1937. Section present exception provision form added its amendment in 1951. The was first amended section (Stats. p. 2938) provide there must be stipulation in the case all counsel that the retired again could In 1951 the amended unani- act. section Legislature. (Assembly houses of the mous vote both Daily May 18, 1951, p. 4501; Journal, Daily Journal, Senate 3462.) By require- 1951, p. that amendment the June *5 404 stipulation provi-
ment and a counsel was eliminated judge while under compensation sion added for to the retired on his retirement based the difference between and the court to compensation allowance of' a (Stats. p. assigned. 3694.) which he' is 1951, years judgment For period of 15 and until over, and assignment of August, 1952, system in in this case try been judges court has retired cases operation objection. without Thus, at all enactment of the times Retire- since provision ment 6 Act 1937 section thereof has contained judicial be that a retired should officer the state provision granting Legislature power and also the to the “change requirements “from to time” to con- time Legislature ditions for retirement.” This has done question the two instances mentioned and the is whether original in the conditions enactment and those subse- quently incorporated in were power it within the Legislature they If to enact. be concluded it that bear system reasonable relation retirement of provision they do offend any the Constitution should upheld. they our conclusion It are valid standpoints. both legislation,
This type both statutory, constitutional and is not new in this state. The Public Utilities Commission has been established under a enabling constitutional act with power Legislature full conferred on the legislation enact contrary even other Constitution, provided cognate germane regulation public control utilities. (Const., art. XII, 22;§ Pacific Ann Tel. & Co. 166 Eshleman, Tel. 1119, P. [137 Cas. L.R.A.N.S. 652].) Likewise the Indus trial up Accident Commission has been set enabling under an Legislature whereby expressly act with plenary vested power by any provision “unlimited of this Constitution, create, complete system and enforce compen workmen’s (Const., XX, art. 21; Supply sation. ...” Western Metal § Pillsbury, Co. v. 172 Cal. P. Ann.Cas. 1917E 390].) foregoing enabling Legislature
Under acts the has which, interpreted by laws the courts, enacted con- subjects properly as to trolling, legislated upon, over provisions of general general other the Constitution and laws. general the Constitution has in So here terms conferred Legislature system upon the to establish a judges. done has so the retirement judges, retirement imposed as a condition of has they shall long allowances, receive retirement continue so permission of the state and with their to be officers by assignment subject to call for service shall be the chairman the Judicial Council. purpose *6 beyond question pro- would to be that the It seem judge assignment of a retired in the and service vision for relationship a reasonable accordance with the statute bears system judges’ inherently It to a of retirement. connected justice problems with the of administration of under which the allowance, state, the in for the retirement consideration personnel judicial of invoke the assistance of the retired the by the department emergencies found to exist chairman foreign Nothing purpose of the Judicial Council. that Legislature. contemplation have been in could grant of recognized power to It is that the constitutional Legislature above referred to establish the two commissions in section comprehensive is much more than that contained granted legisla- IV, 22a of and it is taken for article must not be adopted tion under the of that section inconsistent with other of the Constitution. provision
There is no of the Constitution which would prohibit from providing, as it has in section long that so as he receives a retirement allowance a retired judge judicial shall be a officer of the state. 1 of Section provides VI which power state shall be senate, sitting vested as a court of impeachment, and the several courts, including superior court, question deals with the of the official entities in which judicial power of the state shall be vested and not with personnel of those institutions. And it must be assumed assigned superior that an judge possessed court qualifications acquired of all of the otherwise for service on court, including requirement of section 23 of article VI of Constitution that shall have prac- been admitted to years tice in this state for at least five becoming before superior judge. court assumption
With that it is observed that here we are deal ing superior of judge with the status court who has retired pursuant provisions the statute. In order to must, office, retire he while in file his notice retirement Secretary provided by with the State as section 1 of the (Stats. p. 2204.) act. While retirement he privilege maintaining membership has the his in the State Bar of privi California. As such he is entitled to all leges subject and immunities and is to the duties and obli gations of attorney long an so at law as he maintains his membership organization. in the State Bar His term expired, prior officeas has been terminated thereto voluntary act, his and the office may go is vacant. He respects any attorney come in all and counselor at power law but he has no as a officer until hap pening contingency, namely, assignment of a and volun tary acceptance superior thereof court in designated county and for a chairman the Judicial assignment prolong Council. That does not his term merely vesting of office. It has the effect in him the powers superior during period court specified in assignment, ordinarily as is done in the assignment by case of an the chairman the Judicial Council an incumbent county from one authority of another under the section la of article VI of the Constitution. It must be taken for granted that proper exercise of under the *7 judge
retired will not be continued in service indefinitely. assignment of necessarily The term is within the wise dis cretion of chairman of the Judicial Council. Upon expiration period of of assignment his judge prior his status judge. resumes as retired If he desires privileges attorney to exercise the of an during his retire unassigned, would, ment and while he of course, subject be Act, to the Bar including State require payment ment of dues.
It also observed that section 6 of the Re- any provision tirement Act does not offend of the Constitution ground on assignment that an thereunder is an unlawful in judges increase the number of county to which the judge assigned. The Constitution does not limit superior the number of judges any in county. court Legislature has full (two-thirds control the number voting both houses favor thereof, VI) art. and sec- § legislative tion 6 the retirement act is addi- particular tional sessions court county to which assignment (§§ is made VI). art. Again, compensation increase in for in provided paid judges section 6 of the under act be to retired while assignment provision is not inconsistent with compensation paid superior Constitution. The to be court is for to determine under section of article VI of the Constitution. VI, providing
Section 8 that the term office judge years, cases shall be six such Superior as Martello Court, P. 476], holding perform that a officer not a valid judicial act after his nought term has do expired, not set at purpose obvious assignment provisions of the Judges’ Eetirement Act. In no proper sense is the term of a extended his assignment. retirement or his Upon his retirement longer he can no of his own volition assume to act as whether he retires at the end his term, case, as this only or in upon his midterm. It is assignment in accordance with a statute as authorized by the Constitution that any judicial power he has whatso- ever, and since it is say correct to assignment has a reasonable relationship system of retirement with rights the retired except to act assign- under the ment, there has been no unlawful extension of his term office. ' The fact that under 6 of section the act the retired receiving while retirement allowance is declared to (but officer any power of the state without except assignment) while under should be considered nothing malting eligible more than him for assignment. It would be unreasonable to conclude that while not under assignment subject he would be to the conditions that at tach to the status and judge. activities an incumbent assigned
When voluntarily assumes status regular judge necessarily governed and would those conditions. For example, when assignment under he could practice (Const., law art. VI, §18), and could not be longer days absent the state than 60 (Const., VI, art. §9). Others could be noted. While not *8 good say there is reason to subject that he would be to provisions of the Constitution and law the state made specially applicable regular judges. incumbent
As hereinbefore indicated there no provision in the original Judges’ Eetirement Act of requiring stipu- a assigned lation of counsel that the judge might retired act. (Stats. 6 of the act was p. 2206.) In 1941 section 1937, justice judge provide that, “Any such retired amended to stipulation of all upon the may, consent, with his own assigned sit, he is the counsel in to which cases case assigned by Council to sit the chairman of the Judicial be powers any court; assigned shall have all and while so 2938.) justice (Stats. 1941, p. or judge a thereof.” eliminating again this section was amended order of requirement stipulation of counsel before assignment (Stats. p. 3694.) made. could be dealing again emphasized
It that we are here judge superior court to sit assignment of a that, urged superior being it is court. Such the case dispens- notwithstanding the amendment section ing requirement stipulation counsel, of a never- with the superior stipulation assignment such as to the theless judge required provisions of section court under the in 1928. VI of the Constitution as amended article year “Upon stipu- amendment is as follows: added in attorneys parties litigant or their of record a lation superior municipal may in the court or in a court be cause pro tempore tried who must be a member try empowered who cause, bar sworn to shall be capacity act in such him the cause tried before until the final determination thereof. The selection such pro tempore subject approval shall and order of pending the court in which said cause is and shall also be regulations subject prescribed and orders by the Judicial Council.” argued 22 of I
It is that since section article provides Constitution that: “The of this Con- mandatory prohibitory, by express stitution are unless they are to be otherwise,” words declared there is no provide in the of a retired superior to act except court as a of such a court by stipulation counsel, accompanied by an order of the approving the selection. argument A sufficient answer to this is that the Constitution encompass and the statute subject do the same matter is no and that conflict between there them. 5 of Section Constitution, by VI of terms, its own has to do only with the establishment of through a court the medium pro tempore judge, selected from membership
409 particular by stipulation try case, of bar counsel a superior approved by must be court. and whose selection nothing of the Judicial Council has to do chairman up 6 of setting such a court. On the other hand section operates Retirement Act a court establish through judicial of the medium a officer of state assignment by thereto the chairman of the Judicial Council. duly assigned obviously under officer Where that section such tempore by judge pro stipulation is not of selected counsel try by particular contemplated case section 5 of article operates VI of the Constitution. The latter section inde- of pendently the retirement act. Neither controls the other. duly assigned is When retired under retirement regular superior act he is court whose status Legislature pursuant by as such is created to constitu- authority. tional 5 of is Section article VI therefore not controlling. necessarily It follows that retirement stipulation required statute counsel is as prerequisite assignment to the of a superior retired preside judge of any county as a court in in the state. may power It not be assumed that the con- by ferred section 6 of the statute will be improvidently exer- perchance cised. If it should be the complete has subject to deal with the by appropriate legislation withdrawing even to extent altogether. (cid:127) By (subd. section la VI 6) of the Consti- duty upon tution the is enjoined chairman the Judicial expedite seek to Council to business of state, equalize the work the judges, provide and to for the assignment of judges incumbent county one to another under certain conditions. None specified conditions prohibit in that section would the assignment here under consideration. policy Whether as matter system assign- (cid:127) judges put
ment retired should be into effect for the people through of the state to determine the Constitution or Legislature. policy That has been declared both, the Constitution implication reasonable by the Legislature in the unmistakable and definite terms section 6 of public the retirement act. The policy so reflected is public considerable concern. It not a matter which is subject to control where it has plainly been declared by legislative authority. plan A for the continued service n years. (28 many been in effect of federal has States, v. [formerly 375a]; Booth United
U.S.C.A. § § ; United 78 L.Ed. States U.S. 339 S.Ct. 836] [54 56, cert.den., 306 U.S. S.Ct. Moore, F.2d plan seem purpose 83 L.Ed. such a would 1060].) ex- judicial department to be to make available judges who, capabilities of perience, aptitude and upon for in the consent, with their be called assistance *10 justice. highly plan of is desirable administration Such only congestion when particular cases but also not critical, locality has become particular in a business oftentimes intolerable. and logical of consti-
The the Judicial Council is the chairman power assignment. in whom to vest the tutional officer judicial manpower the It is his functions to marshal one assignment and transfer of to facilitate the state in better dispatch person No other is business. desirability and good position he as to determine need for such assistance. foregoing
From
it is concluded that while the
judge
acting
trial
in these cases was
under the
acting
jure.
question but
judge
as a
There is no
was
de
not,
if
de facto attached
he were
the status
assigned
to his action.
to which he was
was a
office
acting
jure
By
regular assignment under
de
office.
authorizing
acting
it he was
under color
a statute
trying
and
provided by law. His conduct in
the eases
judgment
questioned.
cannot here
rendering
therein
Kempley,
478],
In the course of Johnsons in- business, obligations persons curred for which action was third an against municipal commenced them An in the attach- court. ment against “goods, was issued in that action wares merchandise” of on property. the Johnsons located leased On September 14, 1949, the attachment marshal levied the on “goods, posting wares and merchandise” notice premises on the padlocking where located and doors building. Hunter, employee an of the Johnsons, was charge then in operated the business. He bar at the on September business 15th under the marshal’s direction. He premises left the September on 19th and when he returned on 20th, padlocks replaced marshal’s had been *11 other padlocks, and having the Pickens in possession, were on day, removing entered that padlocks. the marshal’s At time, payable that all sums agreement the lease and paid by had been according the Johnsons to the instruments. paid rent had including The been to and 10, 1949, October and on that the date tender of the rent for the Johnsons’ ensuing month was refused the Pickens. Other factors show that the Pickens asserted possession and held of the premises to the exclusion of the Johnsons.
In the first of the Pickens’, two actions, consolidated the plaintiffs’, basic claims that were the Johnsons violated the had lease suffering the attachment to incurring be levied and obligations the on which the attachment was based in their name and on credit; their that the hence lease was breached agreement longer and and the they were no in effect and regain possession were entitled to premises of the and business. In the action, second the Johnsons, plaintiffs, claimed dam- ages from ousting the Pickens for excluding and them from possession premises of the business, asserting no breach agreement resting lease or claim on those the their
instruments.
The court found that had been no breach the there agreement; bought lease that the merchandise was not credit; levy on in the Pickens’ name or their that the the Pickens lease; attachment did not breach the that the possession ousted excluded from without Johnsons right; premises that the Johnsons had not abandoned the rights lease; or their under the and that the Pickens were damages Johnsons for conduct. liable their previously resulting judgment The actions were tried in a Pickens, and the Johnsons were ordered to transfer liquor the Pickens. That done and in license to was $4,500 damages second trial awarded to the John- liquor appeal found An sons was the value license. main judgment trial, was from the after first taken grounds being insufficiency support evidence to it. judgment ground on several mat- was reversed (Pickens Cal.App.2d Johnson, ters were determined. 40].) P.2d claim of a Pickens based their Johnsons, on violation a clause in which the lease filed, lessees, agreed against permit any to be not to liens asserting levy of a viola- premises, the attachment as tion, gave and further invoked a clause of lease which right reentry them for breach. The District Court Appeal held that there was no because the attachment breach of merchandise, premises. was rather It was also than determined that under the evidence the did Johnsons' obligations upon incur the which the attachment based was in the Pickens’ name or had not credit and the Johnsons premises, agreement. abandoned the lease, their they justified appeal The Pickens assert on this were seizing possession premises taking liquor premises, on phrased, license the wall or otherwise findings contrary, supported of the court to the are not They the evidence. assert the Johnsons abandoned premises improper damages and that an measure of applied.
We by have heretofore seen that was former it settled appeal (Pickens Johnson, supra, Cal.App.2d 778) that no levy there was breach of the lease reason right the attachment and hence the Pickens no had to reenter possession premises or retain of the and merchandise on that ground. in
The concede that there is a conflict the evidence Pickens on question agreement and abandonment lease findings the court in its resolved that Johnsons and against conflict occasion to discuss them. Thus there on subject. the evidence
For the first now busi- time Pickens contend that the joint premises part enterprise ness were and between them and right they the Johnsons therefore had the possession premises
to enter and retain They point liquor merchandise. to evidence that license was issued in the their jointly Johnsons’ and names they parties municipal were defendant in the action judgment given against was then them as well as the Johnsons. No proposition any pleadings was asserted any at other time. Moreover, agreement lease and squarely They refute it. created landlord-tenant relation with premises liquor reference to the and the license things one agreement to the Johnsons. .sold prior At no time entry possession their September to into they did make such claim. they right Pickens contend had a enter liquor
obtain the license in order to turn over to the Board Equalization required- as the law protect them to do to their interest because the operate failure to the business forfeit the would license and is the they reason entered. Assuming such was the case it would not authorize them to forcibly possession premises seize and merchandise and retain them to the exclusion the Johnsons. There negatives evidence which the purpose entry. that as of their While there is conflict, some the evidence shows padlocks Pickens broke the placed which had been on the put door the marshal and their own on. locks Pickens thereupon possession premises. took They removed some merchandise took therefrom and down decorations it. renovated After the attachment was levied on September premises open keeper were charge days padlocked. for two and then The Pickens told the residing Johnsons’ bartender who was at premises personal remove articles. The Johnsons had made ar- rangements Sprouse with Mrs. money borrow the discharge the attachment but when she found out the Pickens possession she were refused to advance it. Mrs. Johnson tendered the rent due under the lease on October 10, 1949, *13 premises; possession the and demanded
to the Pickens made were tenders and demands refused. Similar both were permit refused to the Also, the Pickens on November 10th. belongings. The Pickens personal remove to their Johnsons premises the September 14, 1949, on posted a notice dated had of the attachment the Johnsons declaring that because (which agreement as we have seen was the lease and broken true) was released three and unless the attachment rights days would lose all under the lease and the Johnsons on agreement. Finally, Pickens commenced their action the they lease and 28, 1949, in which declared that the October they possession prop- agreement were broken and took the requested September 1949, and court erty 20, on the right property. no the Johnsons had declare that an is, therefore, sufficient evidence show ouster There from premises, an exclu- by the Pickens the Johnsons possession entry by from a forcible Johnsons sion contrary rights under the Pickens, all to the Johnsons’ agreement. lease and con- damages $19,900 awarded the Johnsons liquor $4,500 $15,400 for license for the
sisted possession premises of the lease. loss violation premises use of the which It was found that the value January 5, September 20, 1949, rental value from is the per month. Evi- term, $400 the end of the lease was from dently the concluded that this ran October per month but 1949. The rental the lease was $225 should be deducted from claim is made such amount only use value. The Pickens assert that the evidence $400 liquor on assumption use value was based that the premises permit would be used on the and that license recovery liquor of such a use value and also the value of the damages thing. two amounts of for same license is to allow There is evidence that net income the business $7,000 period prior over for the 12-month to the unlawful was liquor entry evidence that and there was license alone $10,000. It will be recalled that the lease was worth called per independent of a rental of month and that the $225 equipment including price agreement the license in the agreement $10,000. It the lease and was is true that should together, contemplated and it was be read the license separate price but a premises, be used on the leased was premises (the lease) the use the sale fixed agreement. equipment Taking under the license and profit together into consideration the net from the business price lease, rental stated the court could have properly concluded, did, as it value of the use of premises per $400 month. judgments affirmed. J., J., Dooling,
Edmonds, J., Traynor, Spence, pro J. tem.,* concurred. *14 tem., place Justice, the
Dooling, pro J. sat of Chief who disqualified. deemed himself
CARTER, Concurring Dissenting. I concur in J., and judgment the ground on the a Moncur was de facto J. O.
judge judgment and committed; error was the hence agree holding should affirmed. I of But cannot majority justice jure a judge may or be a de justice or or judge, (Stats. that the Retirement Act p. 1937, amended) 2204, is constitutional insofar as purports justice judge to authorize a or whose term office expired least, has to act in capacity without, a at parties. consent fallacy majority respect of the holding ap- this is parent. In effect majority holds that section 22a of IV article empowers Legisla- the Constitution which provide ture for for employees retirement salaries state repeals modifies or relating all of the Constitution selection, extrajudicial terms office and activities justices or judges. (See 20; Const., IV, art §§18 VI, 9, 10, 3, 8, holding art. 10a, 26.) majority §§ also nullifies section 1 of article III of the Constitution providing for separation powers of the state government. majority
Under holding, pur- may, suant section 22a of IV, article extend the term office a judge beyond years period a of six fixed VI, 8, article section may the Constitution and extend the term of office of a member of Supreme Court or Appeal beyond 12-year District Court of period fixed VI, 4a, article sections 3 and of the Constitution. This because, holding is obvious justice under this a judge or term of office expired, justice whose has is still a or judge although practice he entitled is law violation of article VI, 18, section Constitution. The chairman of *Assigned by Acting Chairman of Judicial Council. practicing assign magic may this
Judicial Council some jure justice de lawyer-justice judge position or a lawyer- such judge period as such chairman and or If a client justice or decide between themselves. may or while he lawyer-justice a consult such should say: “While presume I latter would assignment, assign- practice law before this lawyer I and entitled to was a not entitled to ment, justice I now am I finish this during assignment, but when practice this law practice law, lawyer assignment again I will entitled lawyer.” under such your I While can then act as judge he is not acting justice or assignment as such employment or com- give legal advice, accept permitted to lawyer. After the performed pensation for service until of law practice ended, he resumes or fill public office may assignment, the next seek 20, IV, section public position in violation article some He VI, and article section Constitution. if he is out state but journey out decide to take days he violates longer than 60 period state Suppose a retired of the Constitution. VI, section city attorney, a a district justice or should be elected public Legislature, or some other member of the attorney, a of constitutional Obviously principles under settled office. jure *15 assignment to a de eligible for law he would not be his lose that he would judicial position. Would this mean accept to salary would not be available as he retirement of position by chairman the assignment judicial a the an to unique situa- then have the We would Judicial Council? eligible justices or would be tion that some retired by assignment not. The assignment and others .would lawyer-justice of such a of Council the chairman the Judicial years for year day or one or judge for one or retired which chairman and such upon any court service may agree upon. All this without lawyer-justice judge or of violation constitutional direct popular sanction and Council and chairman the Judicial mandates. Just lawyer when is a judge determine he or lawyer-justice this a when he is judge and where he will sit he is a and when lawyer subject he is judge. When he is a Bar dues. When pay must his State Bar Act and the State subject cited judge to the above justice he is a or he is extrajudicial respect to provisions his constitutional justice judge lawyer day one or may be a He activities. lawyer partisan—a next. As a he is an advocate-—a judge required is of his clients. As a he confidential adviser weigh the law and render to and consider evidence and justice judge fair or has impartial a decision. As a he except period assignment no which fixed term office may may or chairman not be renewed the discretion at fact, from Judicial Council. In he does not know lawyer. day one judge to another whether he is be a or a split personality qualify In a short, must have dual overnight. positions these dual describing type judge by section 6 of created Judges’ majority opinion Eetirement Act states: the other “On hand section 6 Act Eetirement operates through to establish a medium of a court officerof assignment and his state thereto the chairman duly assigned the Judicial Council. Where under that judge section such officer obviously pro is not a tempore by stipulation of try particular selected counsel case contemplated by as section 5 of VI of article the Constitution. operates The latter independently section of the retirement act. Neither controls the other. When retired judge is duly assigned under the regular judge retirement act he is a superior court whose status as such is created Legislature pursuant authority. to constitutional Section VI therefore controlling. is necessarily It fol- lows that under the retirement no stipulation statute required prerequisite counsel is assignment of a superior judge preside aas any county court in in the state.” It is from reading obvious foregoing excerpt from majority opinion majority that the reasons a false premise; is, majority justice assumes that a retired “ whose expired term officehas officer assumption of the state.” This made notwithstanding previous opinion statement said proper follows: “In sense is the term extended his retirement or assignment. Upon his longer retirement he can no of his own volition assume to act as a whether he term, case, at the end of his as in retires this or in his mid- . . . term. While not under there is no good *16 say subject reason to that he would be provisions to the Constitution and law of the specially state made appli- regular judges.” cable to incumbent other words, when justice or is returned assignment, not under the retired if he Bar, lawyer—a of a member of the State to the status may How, pays practice law. dues, and entitled lawyer any ask, I from other is his status different him magic or has transformed Bar, member and what judicial “a officer lawyer or of the Bar into member person may have be state?” can it said that Finally, Bar, practice a member of the entitled to status both state,” one and judicial of “a officer of the at law, and that Bar Cali- time? To hold is to overrule State same so P. where Superior Court, 432], fornia “The (p. 340) : it was held a unanimous court as follows qualified duly judges of record elected and courts in who such at said act became this state were the time judicial are and who have since become and such effective not, and under officers were are the inhibition section constitution, practice VI of entitled state during law their and their in this state each continuance express provisions and hence under the of said State office, period not during Bar not are Act have become said not California, Bar of and hence are members subject State jurisdiction, processes conferred control and upon corporation governing or officers said board other scope thereof of said act.” opinion The majority may “It not assumed also states: that the section 6 of the conferred If it improvidently perchance will be statute exercised. complete should be the has with to deal subject by appropriate legislation even to the extent power altogether.” withdrawing the 1, ar- at section pronouncement This strikes lethal blow separation powers ticle III, of the Constitution known majority holding Legislature, mandate. Under the may or mandate, say justices violation of this to retired judges expired: con- whose terms of officehave “You must justices judges tinue to serve whenever and wherever you (the may not at all— Legislature) we direct or serve you may may practice positions— or you law or hold other words, you justices judges other you obey Obviously, mandates.” our control and must our Legislature may provide justices if that retired position may assigned consent, to a their they provide may also must serve positions provide their consent without sanctions *17 may This not set well with for their failure so serve. justices appellate who Supreme retired court even some extrajudicial They may may engage in activities. desire saying metaphors: with mixed then remember trite roost horse of another chickens come home to it’s a “When color.” may majority
Another serious result which flow judge eligible holding justice or in this ease is may Act be retirement under Eetirement de- himself at an election succeed and then retire feated expires. majority holding his term Under the the act before justice judge may assigned by or here such the chairman justice judge of the Judicial Council to sit or may eligible in which he court sit under the act and justice judge he continue to function as a or thus in- definitely thereby thwart the will of the I electors. can arising envision a situation such this in the smaller coun- only judges ties of the state have one or which two judge may where the defeated unpopular retired be so respect large has lost the confidence and of a segment population of the who constitute constituents. Yet chairman of the Judicial Council with the consent him people could foist county onto the of that superior as a for an period by indefinite majority which the hold now chairman of possesses. the Judicial Council I believe there can be no refutation of the statement people that when the adopted this state section 22a IV article of the Consti- general tution at the single election not soul who voted contemplated this amendment ever far-reaching consequences of their act as now majority construed this court. majority
The- refers to section VI, of the Con- stitution which appointment authorizes the judge pro of a tempore stipulation of parties approved by provision court. While this has been in the Constitution form or in one another since 1879 its use has been very my years limited. practice, of law I never being knew used, and in than years the more I have been a I court, member this do recall a single coming case before this court which had been heard pro tempore decided selected under this provision of the only Constitution. I mention this to call lawyers feeling he the it must to the fact that attention controversies they prefer have their litigants alike that the constitutional in accordance settled selected mistaken the if I am not cited, and provisions hereinabove holding of this court against state will revolt Bar this power of the chairman places it within the which create justice judge to a retired Counsel and Judicial determine the power to has the tribunal which may involve which rights litigants in controversies constitutional in violation life, liberty, property their *18 I heretofore cited. which have mandates regard the opinion in to majority in said the Much is 6 legislation in section desirability of contained the majority opinion respect the Judges’ Act. this Retirement seem to be plan a would purpose states: “The experience, department the judicial make available judges who, with their of retired capabilities aptitude and the adminis- upon for assistance may called in consent, only highly not plan is desirable justice. a tration of Such judicial busi- congestion in particular cases but also when critical, and often- particular locality has become ness in a conceding, factual the Assuming, without times intolerable.” grave I doubt foregoing statement, have correctness by any though possible reason- it were even as to its wisdom provisions of section logical analysis extend the able adoption to authorize the Constitution IV the 22a true that some plan. While it is doubt of such a qualified to continue func- well justices judges true some capacity, is likewise that tioning in a right to assume that when certainly have the not. We be relieved voluntarily retires, he desires to a just that. office, means as retirement duties to create power under the Constitution Legislature has the superior judgeships to enable court number a sufficient legal expeditiously handle all matters superior courts to our to me much more courts, our and it seems before coming power exercise this than Legislature appropriate legislation hybrid type of contained in resort Act. Retirement 6 of the section question Moneur, there is no case In this cases, as such in these consolidated was purported to act who term of office for which he had been legal judge. not again not office but expired. He did run had elected he was authorized to do under contrary retired as on the for his chosen A successor had been retirement act. County. It is true superior judge in Plumas office, a court judge in these eases regularly assigned to act as a was he quali- Council but he by the chairman of Judicial position. for that fied being to his
There are several constitutional obstacles
jure judge or to
under the
de
procedure.
act or
to authorize such
retirement
otherwise
superior
requires
The Constitution
courts
voters of
which is
county
shall
elected
situ
for which the
is to be chosen
ated
vacancy
(Cal.
§6), but
in case
Const.,
VI,
art.
person
appoint
shall
to hold
office,
Governor
person
office until
term of
the commencement of the
vacancy
to fill
which
at
general
elected
shall be done
.
day
January
vacancy
election next after
first
after
occurs, and
(six years)
his term
shall commence on the first
Monday
day
of January
January
the first
after
next suc
ceeding
years.
his election. The term of
six
(Cal.
office is
Const.,
VI,
8.)
art.
Under these
it has been
§
purported judicial
that a
held
act
done
after
expired
his term officehas
(Martello
has no
or effect.
force
Superior
v.
Court,
;
'202
Connolly
Cal.
P.
v.
[261
476]
Ashworth,
;
From the provision above constitutional and authorities it is clear judge that Moncur was not a when the cases were any judicial tried and act done him was ineffective. He been had elected superior judge but term expired had on day reelected; he retired and he was not his successor had previously been elected and discharging was the duties of that office. did appointment Moncur hold an vacancy. to fill Governor is, That he was no different position than a who did not run for reelection or did run and was his term defeated; expired had and his successor occupying position. Hence if there are no other
provisions justifying result, a different section 6 judges which Act, Retirement authorizes judges serve stipula- after at least without the retirement, parties, tion is invalid.
Moreover, permitting Legislature the effect of to author- judges ize judges judges who are not to act as (retired premise of act]) retirement violates the fundamental [the our Constitution and executive legislative, that the departments government (Cal. separate. our state he shall Const., 1.) Legislature may If Ill, art. at its sole § provisions discretion for the thwart in the Constitution judiciary longer any separation then there is no true power. just that, 6 of the because Section retirement act does empowers it the chairman the Judicial Council to create superior judges offices under court where none exist contrary Constitution and a manner to it. positive fixing To provisions overcome the constitutional term of office and mode of selection judges, majority opinion proceeds theory on the that the provisions authorizing constitutional to estab- system (Cal. 22a) para- lish a Const., IV, retirement art. § Legislature may mount to the former that the contrary enact measures to them. It stresses the constitutional authority assign of the chairman of the Judicial Council judges is not another, one area to and a retired assigned until after he has been to serve only during assignment. chairman and then reaching analogy sought that result an to be drawn powers granted between the Public the Constitution to Utilities Commission and Industrial Commission. Accident
First, assignment authority provision, reference to the crystal it is provision purport clear that that does not repeal requirement be elected for a fixed term; of vacancy case and before election the Governor must make an appointment, not the chairman the Judicial Council. Under the provision Judicial Council will be “any judge” may noted that be assigned, but in order to derive assign judge, therefrom to a retired it would necessary to conclude mean person, the words whether proper legal or not he is still a in sense appointed has been elected the constitutional *20 provisions above discussed., expired. and his term has not To so harmony construe those words is out of with the rule Fay announced in v. District Court 200 Appeal, Cal. holding amendment to the Con 896], P. that [254 judges pro tempore did mean reference to not stitution with personnel of District judicial that entire a Court tempore Appeal pro judges. In Edler v. could consist Hollopeter, 245], P.2d it was held that [6 inferior the Judicial Council amendment an assigned higher could he court but he must meet the higher judicial qualifications position (admission to practice years prior election). for five to his If that is necessary satisfy he quali it would follow that must also for position judge, is, holding that fications office appointment expiration election or before his term. And “judge” it has been held that the term does apply not person expired. (In of office whose term has re Wheelock’s App.Div. 654 Will, 157].) N.Y.S.
It is unreasonable to believe that the framers of the Judicial provision people adopting it, Council intended given authority that the chairman council be broad person he could for Constitution that select assignment, judge, who had never been a or who had been one, years defeated reeleetion before or did not run for I hold, therefore, would reeleetion. the Judicial provision Council in the Constitution did not confer assign judges on the chairman to other than those who qualified duly acting and elected, were whose term has expired. majority opinion In connection the same makes the judges point only they that retired are officers when assignment by Council; are under the chairman the Judicial they lawyers posi- no that at all other times official true, ground creating if is it furnishes tion. Even “temporary” required who has not been elected as contrary and in event Constitution, it to reason logic. judges, speaking of retired federal United say: “By retiring pursuant Supreme Court has this States relinquish does not his office. The to the statute regular retire from language is that he active service. is, however, continue, far as his purpose shall so perform judicial service, age permit, to and his health knowledge have, fact, dis- common that retired incum- large duties which would be charged a measure regular scarcely them, if active service. It is bent on still say judge’s judicial necessary would he that a retired acts *21 illegal performed judge. unless he who them held the officeof It a in contradiction terms to assert that who has one may retired accordance with the statute continue to func- tion yet judge. as a and not hold the a federal officeof not him and, indeed, not, Act does could endue embracing of office, from, new different but the duties judge. commission, but office He does not surrender his (Emphasis added; v. continues act under it.” Booth States, United S.Ct. 78 L.Ed. U.S. 836].) provision constitutional retirement does not authorize judges
the use capacity or sanction legislative authority therefor in the face the constitutional provision requiring fixing election and terms of for office judges. To hold as the majority does would mean that the provision repealed by retirement implication require- ment of of judges, election a drastic conclusion which could not have been contemplated by the in authorizing voters system. retirement consequences may
Serious flow from the holding of the majority in Similarly this case. Legislature could author- ize the selection appointment of a retired but defeated legislator vacancy to fill a in the or to serve while legislator incapacitated. incumbent The same would governor. true a retired I cannot believe that the con- provision stitutional system a retirement was intended to authorize far-reaching such a and drastic contailment the other in the Constitution, indeed in our system government. whole of state It is no doubt true that the retirement authorization includes right to exact fur- ther service from the retiree as far as he is concerned, but right when we consider the people guaranteed of the the Constitution to have judicial, legislative their officers, executive, only elected them and serve term, for a fixed it is Requiring another matter. judges perform that retired services after carry right retirement does not impose contrary people on the to the election and term provisions of office the Constitution. The matter simply by requiring solved the consent of parties sitting of a retired as was done the retirement act before its pertinent reasoning amendment 1951. The in this in Fay situation is stated Appeal, District Court supra, 522, 536, the court where held that the amend- providing pro tempore judges ments to the Constitution Appeal to sit on District did mean Court of judicial personnel Appeal entire of District Court of could “ pro tempore judges To interpret pro- consist for: so these evidently amendments, visions in afford said intended to tem- porary emergency relief, encourage would be to very government principle popular violation vital which right people is none other than rights, liberties, commonwealth have their* essential respect person property interests heard and de- resort, membership termined courts last the constituent public which composed servants of own selection. their *22 might people That of this transfer the direct exercise may they selection to whom those have chosen to administer representative government of our of is functions scheme undoubted, but the text of transfer, such whether embodied in a or plain should and unam- statute, constitution be biguous.” reasoning majority squarely of is opinion The contrary Pay to case. analogy by majority claimed between the retire- provision provisions
ment and other in the Constitution which paramount expressly made to other require- constitutional ments exist. provision does not The retirement only not does not contain such of supremacy, words but order to majority’s reach the we have to result read the retirement provision words, as if does have such and then take the further step implying of that authorization a retire- system ment right Legislature includes the of the wipe to provisions out constitutional to and election term of superior judges justices office of both and the Supreme of Appeal. Court and District Courts of
In summary, the Constitution fixes the term office of justices Supreme of Appeal Court and District Courts and judges. Legislature power no has extend such terms. Under no reasonable construction can power it be granted by said such provisions that is fact, section 22a of article IV of the Constitution. is following
antithesis such construction indicated. The inescapable: (1) by accepting That conclusions are retire- justice or ment the has decided to withdraw position by rendering judicial him held cease service nature; (2) during justice or is retirement the restored practice Bar to his status as a member of the and entitled acting justice law or which a not do while capacity (3) posi- state; officer justice
tion as a or will be filled a successor in a provided Constitution; (4) manner for in the is en- salary compensation part titled to his as a retirement already him for and should not earned services rendered capacity required render in the same after services discriminatory retirement; (5) that to so would be do in- capable, those who are unfair to those who are because rendering receive retirement capable of will their services being required re- to render services after salaries without has tirement; (6) that the chairman of the Judicial Council posi- power or to create constitutional change the justices or fill or them tions select judge, justice of a of a the Bar to that status member constitutionally such confer and the cannot cited hereinabove in view the constitutional selection term expressly provide which the method holding of (7) justices judges; that the of office such against our lethal majority in this case strikes a blow government form of destructive republican for the selec- up in our Constitution processes democratic set change in our (8) and even if this drastic judges; tion of expediency, compelling government form of were dictated contrary one of the accept it, I because it could in the Con- government declared concepts popular basic shall popular vote people stitution California—that public their right the manner which to determine have the officials. the term of office shall selected and officers *23 Judges’ Retire- provision in the hold, therefore, that the I assignment of retired Act, authorizing the supra, ment parties consent judicial business without the to conduct is unconstitutional. assert, however,
The Johnsons that Honour was a de facto judgments reply and hence the are valid. The Pickens jure there be a facto unless cannot de there is de no judge; jure or that there was office de office or Honour could be judge. court here and thus not a de facto stated, to majority and said be the rule, It has been jure a de officer no be facto where there is there cannot de judges, can or, as there be no de facto where office to jure (People Hecht, 621, court. v. 105 there is de Cal. Am.St.Rep. 96, 203], 45 941, dictum; P. 27 629 L.R.A. [38 Cal.App. 494 Donovan, 488, v. 19 P. Oakland Pav. Co. [126 City Malaley Cal.App. v. 37 388], dictum; Marysville, 367], dictum; Superior Court, Kitts v. 5 Cal. 638, 640 P. [174
427 462, 977], dictum; People Toal, 468 App. P. v. 85 Cal. [90 parte 338 P. Ex 603]; Giambonim, 117 Cal. 333, 573 [24 732]; City Eureka, 504, P. Buck v. 109 Cal. 512 [49 [30 409, 243]; jurisdictions 42 see other L.R.A. P. cases from collected, 294.) 99 sharp A.L.R. That rule has received criti mainly policy public underlying cism the reason that the equal applies facto officer doctrine the de with force whether jure or not there 2 (See is a de office. So.Cal.L.Rev. 9
243; 651; 1 46 206; ibid. Vanderbilt L.Rev. Mich.L.Rev. 439; 551.) 13 439; 36; 29 86 Minn.L.Rev. ibid. U.Pa.L.Rev. “ unsound; rule has been [F]irst, said be because an legislature officecreated authorized should be treated jure competent tribunal, as de until declared otherwise obeyed since statute must be received and the individual questioned every in, by, until set courts, aside because presumed statute constitutional; second, because the protecting same reasons rule behind the the acts of a de facto jure equally in a apply officer de office to acts a de facto office; officer in a de facto third, because attack on the constitutionality collaterally of the office be made not should by private parties brought an expressly but action should purpose questioning validity acts of an officer an statute, unconstitutional for to allow individuals public deal question who officers their every productive uncertainty instance would be and of society; Eng disordered fourth, because, historically, the requiring jure lish rule office, majority from which de American derived, productive rule is not so harsh re sults, English since the acts officials are declared void acting because the officer was under an unconstitutional (9 189, 206.) many statute.” So.Cal.L.Rev. There are as contrary. (See collected, authorities 9 cases So.Cal. 207; 294.) many L.Rev. so A.L.R. There are so-called qualifications exceptions jure rule as what is a de application. office it cannot be said to invariable have Where an office is an statute, created unconstitutional person holding office under the before it is statute declared (Statement unconstitutional be a de facto officer. Carroll, Am.Rep. 409], approved
State v. Conn. People v. Hecht, 621; supra, Oakland Pav. Co. Donovan, supra, Cal.App. 488; No. 70 Reclamation Dist. *24 Sherman, 277]; 11 Cal.App. v. 399 P. v. Superior Kitts [105 Court, 462.) potential supra, Cal.App. If the office has
'428 may person been but be—a
existence-—has not established Eureka, holding (Buck City it is a de facto officer. v. 504.) judge’s expires term After supra, Cal. judge. facto selected, former de successor is 732].) P. P. (Merced Bank Rosenthal, jure applied, appears Even if the de rule is office noted, qualification within heretofore there the reason judges of jure court, superior court, is a de office—a capacity of such a such it was to act court-—and naming him was assigned. The method Moncur was judge. He had a clear color but was a de facto invalid authority for his express legislative reason title regu- Act, supra) and was (Judges’ Retirement it. assigned by person authorized to make larly Dissenting. Concurring Insofar as SCHAUER, J., controversy agree I with the concerned merits majority opinion; as to discussion for, but acting judge, I find our Constitution of, of the retired negation the chameleonic status much in majority opinion. envisioned solely judgment I concur in the affirmance Accordingly, respectable authority the acts long line of because validity as those Judge Moncur have acting pro tempore facto, jure performing the court. officer duties de a de