State ex rel. Albritton v. Lee (134 Fla. 59, 1938)

Per Curiam.

The above styled cause is at issue before the Court upon motion of Counsel for Respondent to quash the Alternative Writ of Mandamus issued in the cause. Mr. Chief Justice Ellis, Mr. Justice Brown and Mr. Justice Buford are of the opinion that the said motion to quash the alternative writ should be denied; while Mr. Justice Whitfield, Mr.'Justice Terrell and Mr. Justice Chapman are of the opinion that said motion to quash the alternative writ of mandamus in this cause, be and it is hereby denied.

Ellis, C. J., and Whitfield, Terrell, Brown, Buford and Chapman, J. J., concur.

Terrell, J.

On June 26, 1929, the Relator, Paul C. Albritton, was appointed Judge of the Twenty-seventh Judicial Circuit of Florida for a full six-year term. At the time of his appointment, the salary was $7500 per annum but the Legislature of 1931 reduced it to $6750 and the Legislature of 1933 again reduced it to $5000.

By a redistricting Act passed in 1935, the Legislature abolished the Twenty-seventh Judicial Circuit including the office of Judge to which Relator had been appointed. Feeling that the Legislature was without authority to reduce his salary, he .brought this proceeding in mandamus to require the Comptroller to draw his warrant against the State Treasurer to pay him (Relator) $6,708.34, said amount being the difference between the amount he was actually paid as compensation under Chapter 15720, Acts of 1931, and Chapter 15859, Acts of 1933, and the amount he would have been paid under the law in effect when he was appointed had these Acts not been passed. The respondent moved to quash the alternative writ on the ground that it failed to show a legal duty to pay the sum demanded.

On the issue so drawn, we are confronted with the question of whether or not under Section 1 of Article V of the Constitution, the Legislature may reduce the compensation of a Circuit Judge during the term for which he is appointed.

Section 1 of Article V is as follows:

“The judicial power of the State shall be vested in a Supreme Court, Circuit Courts, Court of Record of Escambia County, Criminal Court, County Courts, County Judges and Justices of the Peace and such other Courts or Commissions as the Legislature may from time to time ordain and establish. The Legislature may prescribe the compensation of the Justices and Judges of the several courts, but no court heretofore established under the Constitution and Laws of Florida shall be hereby abolished.”

The material facts are not in dispute. It is admitted that Relator was appointed judge of the Twenty-seventh Judicial Circuit, June 26, 1929, for a full six-year term, that his salary at the time of appointment was $7500, that it was reduced to $6750 by Chapter 15720, Acts of 1931, and to $5000 by Chapter 15859, Acts of 1933, and that if the Legislature was without authority to pass these Acts, .the amount claimed is due and collectible.

The answer to the question with which we are confronted turns on the scope and effect that may be given the sentence, “The Legislature may prescribe the compensation of the Justices and Judges of the several Courts.” The briefs of counsel exhibit much learning and research on this question. Relator contends that to permit such reductions destroys the independence of the Judiciary and hence the independence of the three departments of our government. He supports his thesis with the views of Marshall, Madison, Hamilton and others and urges a learned discussion of the orthography of the word “prescribe” as further support to his contention.

Relator also contends that the question presented must be answered in the negative because there is an express and an implied provision in the Constitution inhibiting the reduction of a circuit Judge’s compensation during his tenure in office and because his appointment constituted a contract between him and the state which the Legislature was without power to impair. Baily v. Waters, 308 Pa. 309, 162 Atl. 819; Commonwealth v. Mathues, 210 Pa. 372, 59 At. 961; Commonwealth v. Mann, 5 Watts & S. 403; Long v. Watts, 183 N. C. 99, 110 S. E. 765; and like cases are relied on to support this contention.

Respondent contends on the other hand that the question involved should be answered in the negative because the Legislature had power to raise or lower Relator’s compensation and relies on Crawford, et al., v. Payne County Auditor, 12 Cal. App. (2nd) 485, 55 Pac. (2nd) 1240; Garvey, County Auditor, v. Mathews (Tex. Civ. App.) 79 S. W. (2nd) 335; Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720; State, ex rel Martin, v. Kalb, 50 Wis. 178, 6 N. W. 557; State, ex rel., v. Bartholomew, 176 Ind. 182, 95 N. E. 417; Haggerty v. City of New York, 267 N. Y. 252, 196 N. E. 45; Board of Commissioners of Perry County v. Lindeman, 165 Ind. 186, 73 N. E. 912; Williams v. United States, 389 U. S. 553, 53 Sup. Ct. 751, 77 L. Ed. 1372; O’Donoghue v. United States, 289 U. S. 516, 53 Sup. Ct. 740, 77 L. Ed. 1356, and Humphrey v. Sadler, 41 Ark. 100, to support his contention.

We have examined these cases and find that those relied on by Respondent to particular statutory courts or to courts created by the Acts of Congress that might be limited or abolished at the pleasure of their creator and were not protected by any provision of the Constitution securing a reduction in compensation. They are consequently of nothing more than persuasive value in reaching a determination of the question before us. As much may be said of the Pennsylvania and other cases relied on by Relator. The Court involved in the latter cases were protected by constitutional provisions securing against a reduction in compensation but the terms and history of the provisions employed were materially different from what we have here.

A vital concern of the framers of the Federal Constitution was to preserve the independence of the judiciary. Among the usurpations charged against the King of Great Britain in the Declaration of Independence was that he “made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” The injustices incident to such usurpation were fresh in the minds of the makers of the Federal Constitution. For generations they had been oppressed by these injustices, so they provided that Justices of the Supreme Court and Judges of the inferior Courts should be appointed for life and should at “stated times receive for their services a compensation which shall not be diminished during their continuance in office.” Section 1, Article III, Federal Constitution.

Most of the states of the union in framing their fundamental law, followed the lead of the Federal Government and wrote provisions in their Constitutions similar to that quoted from the Federal Constitution forbidding the Legislature reducing the compensation of the judiciary during their term of office. The Constitutions of Florida, adopted in 1838, 1861, and 1865, contained provisions of this kind. The Constitution of 1868 contained no provision relating to the compensation of the Judiciary but the present Constitution of 1885 as originally adopted fixed the compensation of both Justices of the Supreme Court and Circuit Judges. Section 1 of Article V as here quoted was an amendment approved in 1914. It dropped the fixed compensation theretofore provided for the judiciary and authorized the Legislature to prescribe their compensation.

The philosophy back of the Federal and State constitutional provisions securing judicial compensation against reduction during tenure was multiple and well grounded. Judges were (required to be learned in the law, they were appointed or elected for long terms, were required to renounce all business connections, a practice that they had spent a professional career in building and devote their entire time to the public service. They are unlike other public officials in that upon assuming the duties of office, they are limited to their salary for subsistence and are precluded by law, custom, and the very nature of their employment from taking compensation from any other source. Aside from being precluded from any other source of revenue, the judge is required to make a showing of dignity and independence in the interest of the society he serves that has little or no relation to his personal benefit.

It was also realized by the makers of the Constitution that the judiciary were vested with no tangible power to enforce its decrees or to preserve itself against overt or covert assaults. The executive had placed at his disposal the power of the Army and the Navy to enforce his bidding; and the Legislature was clothed with the power of the purse. Notwithstanding' this, the judiciary is vested with the most delicate function that our democracy is called on to administer, that of adjudicating controversies involving the life, liberty, and property of the individual and the still greater function of settling controversies incumbered by questions of political policy that shape the course of society. These were the considerations that induced the makers of the Constitution to free the tenure and compensation of the judiciary from invasion, that justice might be administered to rich and poor alike without fear or favor from extraneous influences. The courts are, however, in agreement that unless secured by constitutional fiat similar to that contained in Section 1, Article III, Federal Constitution, the compensation of the judiciary may be raised or lowered at the discretion of the Legislature. It is not secured on the theory of contract, the independence of the departments, or on any other theory. Neither is there an inherent right in a member of the judiciary to have his salary continued at the figure he found it when he assumed office. The question of Judicial salary is one of policy and is not. saved from legislative invasion unless clearly provided or reasonably inferred from the terms of the Constitution.

Everything Relator says in his brief with reference to' the three independent departments of the government and the importance of maintaining an independent judiciary finds ample support in our governmental polity. Our whole theory of democracy is constructed on this plan but it is a significant fact that the line of demarcation separating the three departments, if susceptible of accurate definition, has not been so defined, that there has always existed a certain dependence or interdependence among the three departments, and then it is competent for the people, by constitutional provision, to vest in one department the duties and prerogatives commonly exercised by another. This has been frequently done in the State Constitutions.

We are conscious of the holding by many Courts (some of which are here cited) to the effect that the Legislature 'could not reduce the salary of the judiciary during their term of office, but an examination of these decisions reveals that they are grounded on provisions of the Constitution similar to that in the Federal Constitution prohibiting such reduction and not on any other theory. The text writers, while considering the advisability of incorporating such provisions in the Constitution, admit the power of the Legislature to regulate the salary if not so protected. Volume I, Kent’s Com. 294 and note page 328; Story’s Constitutional Limitations, Volume II, paragraphs 1628 and 1629; State, ex rel. Russell, v. Barnes, 25 Fla. 75, 5 So. 698.

This holding may at first blush appear contrary to that in the Pennsylvania cases cited and relied on by Relator but an examination of the cases in the light of Pennsylvania Constitution, the history of its provisions affecting the subject matter and the terms used affords ample basis for the difference in the conclusion reached.

The writer was a member of the House of Representatives that submitted the 1914 Amendment authorizing the ’Legislature to prescribe the compensation of Circuit Judges and Justices of the Supreme Court. The Legislature had several times considered the matter of raising these salaries but they were fixed in the Constitution and a raise could be affected only by constitutional amendment. One of the arguments urged, in favor of the amendment was that the Legislature could be trusted to prescribe judicial salaries, but there was no reason for retaining a fixed salary in the Constitution; so the provision for it was deliberately left out and the question of fixing judicial salaries vested in the Legislature.

The question of whether or not this was a wise policy, whether or not it strikes down the theory of the independence of the departments, or whether or not there are now influences in our political fabric more subtle and that make it more essential than ever that judicial compensation be safeguarded, is not before us for consideration. These questions were all foreclosed by the 1914 Amendment to the Constitution. The people of Florida expressed themselves on this matter and their expression is not in conflict with dominant Federal law.

But Relator contends that if the Legislature is permitted to prescribe the compensation of the judiciary, it may reduce it to a level so low as to become embarrassing. We do not agree to this contention nor do we think the Constitution in authorizing the Legislature to prescribe the compensation of the judiciary contemplated any such reduction. The power to prescribe Judicial salaries does not vest power to cripple or to destroy a coordinate branch of the government, but implies power to raise or lower within reason and in harmony with treatment accorded other departments. Neither does it contemplate that the judiciary may be singled out and reduced out of proportion to other reductions or that reductions shall be made for any reason except under stress of economic conditions, but as to this, the 1914 Amendment places the judiciary in the same category as the other constitutional departments. It removes all express or implied limitations on the question of judicial salaries. It is not charged that the reduction complained of was embarrassing, below a subsistence level, or below that imposed on others. The policy of this situation, past or present, does not affect its legal status and is not discussed.

We have not overlooked Relator’s contention that his appointment and acceptance of the judgeship constituted a contract with the State that the Legislature could not impair, but we are not convinced that there is merit to this contention. Neither are we convinced that Relator is precluded by estoppel from raising the question adjudicated.

From what we have said, it follows that the motion to quash should be granted.

Whitfield and Chapman, J. J., concur.

Whitfield, J.

Section 5, Article V, of the Constitution of 1838-9 provides that a circuit judge shall “receive for his services a salary of not less .'than two thousand dollars per annum, which:shall not be diminished during the continuance of- such judge in office.” A similar provision is contained in Section 4, Article V, of the Constitution of 1861; and a somewhat similar provision is in Section 4, • Article V, of the Constitution of 1865.

No provision similar to the above appears in the Constitution of 1868 or in that of 1885.

Section 4, Article XVI, Constitution of 1868, contains the following: “The salary *■* *-of each Judge of the Circuit Court shall be three thousand five hundred dollars.”-

The .salary was by an amendment -to the Constitution reduced to two thousand five hundred dollars.

Section 9, Article V,. of the Constitution of 1885 provided that: “The salary of! each Circuit Judge shall be two thousand five hundred dollars.”

Section 8 of Article V, as amended in 1902, provided that: “The salary of each Circuit Judge shall be two thousand -seven hundred and fifty dollars.”

The provision of Section 1, Article V, of the Constitution; as amended in 1914, that “The Legislature may prescribe the compensation of the Justices and Judges of thé' several courts, makes such' compensation a matter of law and not of contract; and the Constitution does-not require the. compensation of the Judges to be prescribed with reference to-the-terms of office of;.the Justices and Judges. '

The word “salary” as used in the provision of Section 43, Article V, of the Constitution,- adopted in 1922, that “The Legislature may repeal any law providing for the- appointment of an additional Circuit Judge or additional Cir.cuit Judges for a Circuit, but such repeal shall-not affect the term, salary and jurisdiction of a Judge holding ah ¡appointment,” has reference to the compensation as prescribed by the Legislature, under Section 1, .Article V, as amended -in 1914.

The relator was appointed under Section.35 of Article V of the Constitution as amended in 1910, and not under Section 43 of Article V, adopted in 1922.

To mandamus the Comptroller to. pay-more than is prescribed or appropriated' by law would compel him to violate Section 4, Article IX, of the Florida Constitution.

Terrell and Chapman, J. J., concur.

Ellis, C. J.

This case presents a question which every member of this Court, I think, would welcome relief from 'deciding, because it involves to a high degree a critical analysis of. the powers of government exercised by. the legislative branch in what seems to be an effort on' its part to. en"croách upon the dignity and independence of the judicial blanch.

Every student of American History and American and English'Law' knows that whatever powers of government may exist in the fanciful theories of' time serving politi— •ciaris, three basic, underlying and all controlling and all embracing powers do exist and they are-the Legislative, the ■ Executive arid the Judicial; that when'they áre all colhbinéd-in'-one person-or'group a'riionarchial form of government exists and tyranny is likely to run free reign over the liberties of the people.

Every student of American history knows that to avoid the danger to the liberties of the American people, arising from a combination of two or more of such powers in one person or group of persons, the American system of government was devised which divided the powers enumerated and placed them severally in three separate, distinct, coordinate and independent branches of the government. See Article I, II, and III, Const. U. S.

The Constitution of Florida, as well as many if not all of the Constitutions of other states, definitely provides that no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others. See Art. II, Fla. Const. 1885.

In the case of Commonwealth, ex rel. Hepburn, v. Mann, 5 Watts & S. 403, (Pa.) text 406, it was said:

“The great and incorruptible men who formed the glorious fabric of our liberties, completely conversant with the history of the past, and looking with prophetic eye to the future, to avoid the rocks and quicksands which had caused the shipwreck of so many other governments, based as was erroneously supposed on indestructible principles, divided the powers of the government into three independent coordinate branches, the legislative power (I use the words of the Constitution), the executive power, and the judicial power: and for the purpose of protecting the latter, which was .the weakest and most exposed to attack, from the encroachments of the former, they established this fundamental principle. They are independent and co-ordinate, because distinct rights, powers and privileges are assigned to them by the Constitution. Each is entitled to the free, unbiased, uninfluenced and independent exercise of all their rights, powers and privileges in as ample extent as the Constitution allows.”

Mr. Justice Miller, speaking for the Supreme Court of the United States in the case of Kilbourn v. Thompson, 13 Otto (U. S.) 168, 26 L. Ed. 377, text 387, said:

“It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers entrusted to governments, whether state or national, are divided into the three grand departments of the executive, the legislative and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the liens which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no . other. To these general propositions there are in the Constitution of the United States some important exceptions. One of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress.

“This, however, is so only to. a limited extent, for a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds of each House of the Legislature.

“So, also, the Senate is made a partaker in the functions of appointing officers and making treaties, which are supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of treaties. The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of impeachment.

, “In the main, however, .that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precisions, and in bold lines, in its three primary Articles, the allotment of power to the executive, the legislative, and judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments .cannot be exercised by- another.

■ , “It may be said, that these are truisms which need no repetition here to give them .force. But while the experience bf almost a century has in general shown ■a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to' be denied that such attempts have been made, and it is'believed not always without success. The increase in the number of states, in their population and .wealth, and fin the amount of power; if not in its nature to be exercised by the Federal Government, presents powerful arid growing temptations to those to whom that exercise' is intrusted, to overstep the just boundaries of..their own department, and-enter upon the domain of one of the others, 'O'r-to -assume powers not intrusted to either of-.them.” ;

It was said in the case of State v. Osborne, 14 Ariz. 185, text 190, 125 Pac. Rep. 884, that:

"The three coordínaté departments of the government— the legislative, executive, and judicial — must each move within its sphere; each must remain separate and distinct; it- fe so provided by our organic law. Each must act within the Scope of the power given it by the sovereign wili of the people expressed in their. Constitution; thus' will difficulties be evdded ánd perplexities ávoided.”'

The following language appears in the case of State v. Baughman, 38 Ohio State 455:

“The division of the powers of the state into legislative, executive and judicial, and the confiding of these powers to distinct departments, is fundamental. It is essential to the harmonious working of this system that neither of these departments should encroach on the powers of the other.”

See also Ex Parte Rice, 72 Tex. Cr. Rep. 587, 162 S. W. 891, where it is said that:

“ It is a maxim of constitutional law that no one of the three great departments of the government shall intrude upon any one of the others, and all attemtps to do so are void.’ ” Also Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec. 567, text 568, and note.

In the case of Western Union Tel. Co. v. Myatt, 98 Fed. Rep. 335, text 348, Baron Montesquieu is quoted as follows:

“ ‘When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of nobles or of the people, to exercise these three powers — that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.’ Spirit of Laws, bk. 11, c. 6.”

Blackstone is also quoted in the opinion of Western Union Tel. Co. v. Myatt, supra, as follows:

“ ‘In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists of one main preservative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law, which though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative.’ 1 Bl. Comm. 269.”

The following expression was made by James Madison in the Federalist, No. XLVII, p. 270:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Chief Justice Kent wrote as follows in the case of Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, text 508, 5 Am. Dec. 291, note:

“It is a well settled axiom that the union of these * * * powers is tyranny. Theorists and practical statesmen concur on this opinion. Oür government, like all the other free governments upon this continent, and like the only free government, at present, remaining in Europe, consists of departments, and contains a marked separation of the legislative and judicial powers. The constitutions of several of the United States, and among others, those of Massachusetts and Virginia, have an express provision, that the legislative and judicial powers shall be preserved separate and distinct, so that one department shall not exercise the functions belonging to the other. Most of the models of a free and limited constitution which were produced in Europe, under the impulse of the late revolution, and which had any pretensions to skill or wisdom, and particularly the new constitutions of Poland and France in 1791, and of France in 1795, contained the same provision, in language more or less explicit. And if it be not found in our own constitution, in terms, it exists there in substance; in the organization and distribution of the powers of the departments, and in the declaration that the ‘supreme legislative power’ shall be vested in the senate and assembly. No maxim has been more universally received and cherished as a vital principle of freedom. And without having recourse to the authority of elementary writers, or to the popular conventions of Europe, we have a most commanding authority, in the sense of the American people.”

See also 12 C. J. p. 802 where the statement is made that:

“Constitutional government in the United States is distinguished by the care that has been exercised in committing the legislative, executive, and judicial functions to separate departments, and in forbidding any encroachment by one department on another in exercise of the authority so delegated.”

It is thus indisputably evidenced in the jurisprudence and history of this country that the system of the division of governmental powers and the confinement of them to the departments severally to which they are confided and the maintenance of the integrity and independence of each department is distinctly an American system which commands the undivided, loyal support of every American citizen until the pillars of this great republic are pulled down and the destiny of succeeding generations shall rest upon a different theory of government.

Mr. Justice Rogers, in Commonwealth, v. Mann, supra, used the words of the Federalist, which put the thought most forcefully and clearly in the following language:

“Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honours, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on-the contrary, has no influence over either the sword or the purse; no direction of either the strength or of the wealth of society, and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment, and to be ultimately dependent upon the aid of the executive arm for- the efficacious exercise even of this faculty. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is, beyond comparison, the weakest of the three departments of power; that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from courts of justice, the general liberty of the people can never be endangered from that quarter. I mean, so long as the judiciary remains truly distinct from both the legislative and executive. For I agree ‘that there is no liberty, if the power of judging be not separated from the legislative and executive powers.’

“It proves in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; that as nothing can contribute so much to its firmness and independence, as permanency in office, to which must be added, as has been already said, a fixed and adequate support, this quality may, therefore, be justly regarded as an indispensable ingredient in its constitution, and in a great measure as the citadel of the public justice and the public security. If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, and for a fixed and invariable compensation, incapable of diminution; since nothing will contribute so much as this to that independent spirit in the Judges, which must be essential to the faithful performance of so arduous a duty. This independence of the Judges is equally requisite to guard the Constitution and rights of ‘individuals, from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves; and which, although they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.’ ” Text 410.

It thus appears that the American System is like a great tripod, strong, permanent, substantial and efficient so long as its three great legs are maintained in their primitive strength. If any one of the departments is weakened in the exercise of its supreme power committed to it under our system, either in the completeness or independence of its activities, by any other department, then the entire superstructure is in danger, because the foundation upon which it rests is in process of deterioration.

I do not wholly subscribe to the doctrine that any one department of the government is weaker or stronger than any other department because each and every power of the government is essential to its complete and ideal functioning; that is to say, while it is one function of government to prescribe the law, it requires the exercise of another and distinct power to enforce it, and, since judgment is essential to determine what the law is, it is evident that the power of so judging is just as important as that of making or executing it.

The American system of government fully recognizes this truth and it is crystallized in the written constitutions, both Federal and State. It is true that security of tenure in office through which any power of government is exercised is essential to the American system. It is also true that the free and unhampered exercise of judgment wherever reposed in an officer in any department of government is essential to the complete exercise and discharge of the trust committed to him. While the legislative power may cover a broader field of governmental activities than either the executive or judicial powers it is in no sense a legislative function under the American system directly or indirectly to interfere with or control the powers exercised by any officer in either of the other two departments: In other words, while the legislative branch of the government is supreme within the sphere of its legitimate activities, the executive and judicial departments are equally supreme within the legitimate sphere of their respective activitiés.

The general impression .which may exist among the people that the legislative branch of the government is the most powerful of the three arises doubtless from the fact that aside from its being the most spectacular in its operations there is committed to it the duty of providing revenue by the power of taxation for the expenses of the government and the enactment of laws for the general welfare and in the exercise of the police power. In the discharge of these duties, particularly those relating to taxation and the general welfare, the Legislature is beset by the applications of innumerable groups each interested in the promotion, of its peculiar and special welfare, thus conflicting group interests are represented at each session of the Legislature and periodically the people of the entire State are aroused to a sense of potential benefit or injury from legislative activities.

Office seekers, job hunters, lobbyists, representing different commercial, agricultural and industrial interests come to the capital while the Legislature is in session and newspapers broadcast the news of different activities of the legislative session for the full period of its time, but whatever may be the legislative burden at such time and whatever may be the character of legislation which emerges from that body during its session, whether orderly and precise or kaleidoscopic in arrangement and color, it must, in order to be legitimate legislation, lie within the legislative power as that term is understood within the true meaning and conception of the American system.

The exercise of the power of taxation to provide revenue for the expenses of the government is another duty of the legislative branch which in its discharge awakens the interest and sometimes the apprehension of the people as to what may be the legislative purpose in that regard and helps to create the impression of the superior power of the legislative branch. That, however, is a duty lying within the sphere of legislative power and no comparison is permissible between that power and the power executed by either of the other two branches: the one to exercise supremely its judgment as to the intent and purpose of such legislation, and the supreme power of the other to execute the legislative will as interposed by the judicial branch.

Our Constitution definitely requires the Legislature to provide revenue for defraying the expenses of the State. See Sec. 2, Art. IX, Const. 1885. Thus our system of government definitely contemplates that the discharge of its functions and the administration of its public business in all departments entails expenses which must be met by the raising of revenue by the power of taxation. These expenses consist mainly of the salaries of officers and employees of the different departments, which the Legislature may in some cases fix from time to time during the term of office, and in other cases definitely prescribe for the term of the office to be filled.

In the case of the judicial branch, whose sole function is judging, it is essential that its complete and ideal exercise should not be hampered through fear that the tenure of office of a judge may be terminated at pleasure by either the legislative or executive branches, or that the adequate sustenance or any portion of it may be taken from him by legislative will during the term of the office in which he has been duly installed after adequate provision for such sustenance has once been prescribed before the beginning of such term.

In his excellent work, Commentaries on American Law, which has been recognized since 1826 as containing a clear and correct elucidation of the fundamental principles of the American governmental system, Honorable James Kent expresses the thought in the following words:

“It would be in vain to declare that the different departments of government should be kept separate and distinct, while the Legislature possessed a discretionary control over the salaries of the executive and judicial officers. This would be to disregard the voice of experience and the operation of invariable principles of human conduct. A control over a rrian’s living is, in most cases, a control over his actions.” 1 Kents Com., page 281.

Again at page 294 of Kent’s Commentaries is to be found the following language:

“It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to deal impartially and truly, according to law, between suitors of every description, whether the cause, the question or the party, be popular or unpopular. To give them the courage and the firmness to do it, the judges ought to be confident of the security of their salaries and statiou. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of party, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the Constitution as the paramount law, and the highest evidence of the will of the people.

“The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends, also, to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The Constitution of the United States, on this subject, was an improvement upon all our previously existing Constitutions. * * * the * * * certain provision in the Constitution of the United States has been wisely followed, in the subsequent constitutions of most of the individual states.”

It was said by James Madison in The Federalist:

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own. * * * It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal.” Page 290, et seq.

It was also said by Mr. Madison, according to his notes in the Constitutional Convention, that:

“Experience in all the States had evidenced a powerful tendency in the Legislature to absorb all power into its vortex. This, said he, was the real source of danger to the American Constitution, suggested giving every defensive authority to the other departments that was consistent with Republican principles.” Documentary History of the Constitution, Vol. 3, page 392.

It is, therefore, perfectly evident from a careful examination of the American system of government that it is not within the power of the legislative branch unless expressly and clearly conferred upon it by the written Constitution to enact laws which either interfere with the tenure of office of an executive or a judicial officer or effect the curtailment of the adequate provision made for the sustenance of such officer during the term for which he is elected or-chosen; that to exercise such power is not legislation but tyranny and operates to the partial if not complete subjugation of both executive and judicial functions to the legislative will.

It thus follows that if an interference by reduction of the salary of an incumbent of a judicial office affects either directly or indirectly the incumbent’s freedom of judgment in the exercise of his duties, then the power vested in the Legislature to prescribe the salary for such officer can be construed only to mean a power to prescribe an adequate compensation and not a power to reduce that compensation during the term of office of the incumbent and such power should not exist by implication because the exercise of the latter power would not be legislative in character, for the power by legislation to reduce the compensation of an incumbent of a judicial office is diametrically opposed to the fundamental principles on which our government is organized.

I submit that the exercise of such a power is abhorrent to the sense of loyalty of every American citizen to our system of government, and should not under any pretense or for any excuse be recognized as the legitimate exercise of the legislative function.

The relator in this case, Paul C. Albritton, was appointed by the Governor and confirmed by the Senate of the State of Florida to be Judge of the Twenty-Seventh Judicial Circuit of Florida for a term of six years to begin from the 26th of June, 1929. The salary or compensation which had been prescribed by the Legislature under Section 35 of Article V of the Constitution by Chapter 11888, Laws of Florida, 1927, was the sum of $7,500 per year. In 1931, by Chapter 15720, the compensation for Circuit Judges was reduced by legislative enactment to the sum of $6,750.00 per year. Again in 1933 the Legislature by Chapter 15859 reduced the salary to be paid Circuit Judges to the sum of $5000.00 per year, and at the latter rate the relator was paid until July 30, 1935, when under Chapter 17085, Laws of 1935, there was a redistricting of the State into Judicial Circuits and the additional judgeship for the Twenty-Seventh Circuit was abolished.

It thus appears from the allegations of the alternative writ that the relator, Judge Albritton, was not paid for the term of his office as Judge of the Twenty-Seventh Circuit the compensation of $7500.00 per year which had been prescribed as compensation for his sustenance when he accepted the appointment to that office and entered upon the discharge of his duties as Judge of the Circuit.

It therefore appears that the State during the term of office held by the relator, under the Acts of the Legislature mentioned, reduced his compensation for the term by the sum of approximately $6,708.34, according to the allegations of the writ.

Gn December 3, 1936, Judge Albritton applied for and obtained from this Court an alternative writ of mandamus to require Honorable J. M. Lee, Comptroller of the State of Florida, to draw his warrant in favor of the relator for the amount of said deficit.

The case thus presented by the relator is that the Acts of the Legislature of 1931 and 1933, undertaking to reduce the compensation of the relator as Circuit Judge when he accepted the appointment to said office are ineffective as to relator and of no effect.

On December 9th the respondent interposed a motion to quash the alternative writ, thus the question of the effectiveness as to the relator of the two Acts of the Legislature above mentioned, viz.: Chapter 15720, Laws of 1931, and Chapter 15859, Laws of 1933, is presented for determination by this Court.

It seems that the concensus of judicial opinion in this country is to the effect that the relation existing between the State and the incumbent of judicial office is not of such a contractual character as to be within the protection of Article I, Section 10, of the Federal Constitution. The rule as stated in 33 C. J. 953 is as follows: “The selection of a judicial officer does not create a contract between the incumbent and the state.” The citations given in support of that text are: U. S. v. Fisher, 109 U. S. 143, 3 Sup. Ct. Rep. 154, 27 L. Ed. 885; Benford v. Gibson, 15 Ala. 521; Com. v. Matheus, 210 Pa. 372, 59 Atl. 961.

In the Fisher case above cited, Judge J. W. Fisher held the office of Chief Justice of the Territory of Wyoming from February, 1876, to November, 1879. During that period his salary was reduced by an Act of Congress $400 per annum. The Judge brought an action in the Court of Claims against the United States to recover the difference between the amount of his salary as fixed by the congressional Act of 1870 and the amount fixed by the Act of 1877 which reduced the salary of the Judge about $400 a year. Judge Fisher contended that he was entitled to receive compensation for his services as Judge at the rate fixed by the Act of 1870 when he entered upon the term of his office.

The holding of the court in that case was that there was no clause in the Federal Constitution forbidding Congress to reduce the compensation of the Judge of a Territorial Court during his term of office and that Congress could, without the violation of any contract with the incumbent, reduce the salary during his term of office and had the constitutional power to do so.

The case of Butler, et al., v. Com. of Pa., reported in 10 Howard 402, 13 L. Ed. 472, was cited to the proposition that no contractual relation existed between the incumbent of a judicial office of the territory of Wyoming and the United States Government. In the Butler case the office involved was not a judicial office. The plaintiffs in error had been appointed by the Governor of Pennsylvania as Canal Commissioners at a salary of $4.00 a day and by a subsequent Act of the Legislature the appointment to such employment was transferred from the Governor to election by the people and the compensation fixed at $3.00 per day. The plaintiffs in error insisted that for the remainder of their appointment by the Governor their compensation should be at the rate of $4.00 per day instead of under the terms of the new Act which went into effect before the time that their appointment expired. The Supreme Court of Pennsylvania did not sustain that view and on writ of error to the Supreme Court of the United State's that Court held that the:

“Contracts designed to be protected by the tenth section of the first article of that instrument are contracts by which perfect rights, certain definite, fixed private rights of property are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or State government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is matter of, public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them, after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtedly be claimed, both upon principles of compact and of equity; but to insist beyond this on the perpetuation' of a public policy either useless or detrimental; and upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither common justice-nor common sense. The establishment of such a principle would arrest necessarily everything like progress or improvement in government; or if changes should be ventured upon, the government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a State, as constitutional ordinances must be of higher authority and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances under one and the same system. It follows, then upon principle, that in every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community. It is true, that this power, or the extent of its exercise, may be controlled by the higher organic law or Constitution of the state, as is the case in some instances in the state constitutions, and is exemplified in the provision of the federal Constitution relied on in this case by the plaintiffs in error, and in some, other clauses of the same instrument; but where no such restriction is imposed, the power must rest in the discretion of the government alone. The Constitution of Pennsylvania contains no limit upon the discretion of the Legislature, either in the augmentation or diminution of salaries, with the exception of those of the governor, the judges of the Supreme Court, and the presidents of the several courts of common pleas.”

The Canal Commissioners of Pennsylvania were not judicial officers but were mere agencies of the government to perform certain work which according to its nature and character might in the judgment of the commonwealth as expressed by legislative enactment be changed or entirely abandoned whenever the necessities for the further execution of the work required; the Supreme Court apparently taking the view that such an employment as Canal Commissioner was accepted by the employee subject to the superior authority of the sovereign power to amend the terms of the employment either as to the term of employment or compensation to be allowed as the necessities of the commonwealth demanded.

In the case of Benford v. Gibson, 15 Ala. 521, the guardian of a ward in the settlement of his claims against the estate in the Orphans’ Court presented an item of costs which he had paid to the County Judge under the provisions of an Act of the Legislature of 1843 which allowed a larger compensation for the services than the provisions of the Act of 1848, according to the terms of which the orphan claimed the County Judge should have made his charges. The question involved was the reduction of fees allowable to the County Judge during his term of office, the Supreme Court of Alabama holding that “we are satisfied, that the appointment to office, by a state government, is not to be considered as a contract, in the sense of that term, as used by the framers of the Constitution.” Text 525.

The language of this holding seems to concede that the elements of a contract in such a case are present but that because of the peculiar nature and character of the contract and the superior authority of sovereignty to amend or abolish it at will it is not such a contract as is protected by the Federal Constitution and that the incumbent accepts the office subject to this superior sovereign power.

In the case of Commonwealth v. Matheus, 210 Pa. 372, 59 Atl. Rep.'961, the question arose upon the construction of the Act of 1903 of the State of Pennsylvania, which increased the salaries of the judges of its courts over that which had- been fixed by a previous Act. In discussing the procedural question involved the court recognized the existence of a private right in-the judges to the salary fixed by statute during his term of office' for services rendered ■while in the discharge of the duties-of his office, but said that the existence of such a private right did not exclude the presence of a public duty to be performed which was involved in the payment by the State to the judge of his salary according to the increased rate. The Court, through Mr. justice von Moschzisker,' who afterwards became Chief Justice of the Court, said: '•:■■•'

' “As we have already indicated, the fact that the writ in this case may serve a private interest does not in any way exclude the presence of a public duty to be performed. The public'at'large is most essentially find materially interested in the maintenance o'f the judiciary as one of the necessary and independent divisions of the government; the Constitution requires that they=-shall'be paid by the state an adequate' compensation, and the question is one of such public importance that the enforcement of the public duty to pay, under authority of law,'the-salaries of the judiciary, is one which should not depend upon-the willingness of any individual judge, in his priyate capacity, to. attempt to enforce his right as a matter of private benefit.” Text 377.

The Constitution of Pennsylvania 1873, Art. V, which -is-the Judiciary Article, Sec. 18, provided that:

“The judges of the Supreme Court and the judges of the--several-courts of-common ¡pleas and all-other judges required to be learned in the law, shall at stated times, receive for their services an adequate compensation, which shall be fixed by law and paid by the State.”

The old Constitution of the State of Pennsylvania of 1790 contained the clause that the judges should receive “an adequate compensation, to be fixed by law.” That clause was contained in the Constitution of 1838 and reenacted into the Constitution of 1873, under consideration in the case. The two older Constitutions contained the further clause that the compensation to be fixed should not be “diminished during their continuance in office.” The Constitution of 1873 omitted the clause that their compensation should “not be diminished during their continuance in office,” but merely provided that the compensation should be an adequate one.

The court considered the etymology of the word “adequate” and pointed out that the proper meaning to be given to it in the connection in which it was used was that the compensation to be allowed should be appropriate to the standards of living which the progress and development of society might require, to the end that the compensation to be allowed should be sufficient by way of sustenance for the incumbent of the office.

The Court held that constitutional, clause to be an absolute mandate upon the Legislature to provide “adequate compensation” for the judges. The Court also pointed out that the word “fixed” could not be construed to be an inflexible term and that when salaries were once fixed by the Legislature the power of the Legislature was not exhausted; holding that such a construction would be contrary to latter-day constitutional construction.

There was another provision in the Constitution of 1873 not contained in the judiciary article, but which related to other officers and which provides that: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” 210 Pa. text 397. The Court held that such article of the Constitution had no relation whatsoever to judicial officers and those sections of the Constitution which related to provisions for their adequate compensation, and upon this subject the learned Justice said:

“Are the judiciary dependent upon Section 13 of Article III to prevent the Legislature from diminishing their salaries during the term for which they may have been elected? It is not essential to the question before the court to decide as to the right of the Legislature to diminish the salary of a judge during the term for which he may have been elected, and we do not make any decision on that point at this time, but we state most emphatically that it is our belief that the Legislature have no right to diminish the salary of a judge during the term for which he may have been elected, and that this protection to the judiciary is not in any sense dependent upon Section 13 of Article III of the present Constitution of the state.” Text 399.

Upon the subject of the alleged contractual relation existing between an incumbent of a judicial office and the State, the learned Justice said, in substance, that a Judge in accepting a term with a definite salary attached to it at the time did not enter into a contractual engagement with the State that he would serve out his term without an increase of salary. The Court said that many well considered cases have decided that there is no such contractual relation existing between the public and those that serve it in official capacity. The Court cited the case of Com. v. Mann, supra, to this proposition.

The substance of the holding by these authorities upon the subject of a contractual relation existing between the incumbent of a judicial office and the State is that the nature of the contract is not'such as is protected by the 10th Section of Article I of the Federal Constitution. However, it appears from the discussion of the question that the courts. recognize the existence -of all elements of a contractual relation, but merely conclude that by reason of the superior authority of State sovereignty, to which the nature and character of the duties required of the public officer and the term of his office and even the abolishment of the same are subject, which the necessities of social conditions require, the relation is deprived of such permanency as that 'it may be said that the incumbent may continue in theperforrhance of his duties notwithstanding the welfare and conve