State Ex Rel. Albritton v. Lee , 134 Fla. 59 ( 1938 )

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 mayprescribe the compensation of the Justices and Judges of theseveral 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 A. 819; Commonwealth v. Mathues, 210 Pa. 372, 59 A. 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. 2d 485,55 P.2d 1240; Garvey, County Auditor, v. Mathews (Tex.Civ.App.) 79 S.W.2d 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.