State Ex Rel. Albritton v. Lee
| Decision Date | 15 September 1938 |
| Citation | 134 Fla. 59,183 So. 782 |
| Parties | STATE ex rel. ALBRITTON v. LEE, State Comptroller. |
| Court | Florida Supreme Court |
Mandamus proceeding by the State, on the relation of Paul C Albritton, against J. M. Lee, as Comptroller of the State of Florida. On motion to quash alternative writ issued in the cause.
Motion denied by an evenly divided court.
COUNSEL John B. Singeltary, of Bradenton, and George Couper Gibbs, of Tallahassee, for relator.
Cary D Landis, Atty. Gen., and H. E. Carter and W. P. Allen, Asst Attys. Gen., for respondent.
Kelly & Casler, of Clearwater, Paul C. Albritton, of Sarasota, Vocelle & Mitchell, of Vero Beach, Smith & Kanner, of Stuart, Fee & Liddon, of Fort Pierce, Maguire & Voorhis, of Orlando, and Thomas H. Anderson, of Miami, amici curiae.
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 should be granted. The Court being thus evenly divided, it is ordered and adjudged by the Court that the motion to quash the alternative writ of mandamus in this cause, be and it is hereby denied.
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 $7,500 per annum but the legislature of 1931 reduced it to $6,750 and the legislature of 1933 again reduced it to $5,000.
By a redistricting act passed in 1935, chapter 17085, 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 One of Article Five of the Constitution, the legislature may reduce the compensation of a Circuit Judge during the term for which he is appointed.
Section One of Article Five is as follows:
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 $7,500, that it was reduced to $6,750 by Chapter 15720, Acts of 1931, and to $5,000 by Chapter 15859, Acts of 1933, and that if the legislature was without authority to pass these acts, the amount claimed is due and collectable.
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. Bailey v. Waters, 308 Pa. 309, 162 A. 819; Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961; Commonwealth v. Mann, 5 Watts & S., Pa., 403; Long v. Watts, 183 N.C. 99, 110 S.E. 765, 22 A.L.R. 277; 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. Matthews, 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, Ann.Cas.1914B, 91; 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, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372; O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356; and Humphry v. Sadler, 40 Ark. 100, to support his contention.
We have examined these cases and find that those relied on by Respondent relate 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 Courts 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 One, Article Three, Federal Constitution, U.S.C.A.Const. art. 3, § 1.
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 One of Article Five 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...
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Robinson v. Stewart
...whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ ” State ex rel. Albritton v. Lee, 134 Fla. 59, 183 So. 782, 787 (1938) (quoting The Federalist No. 47, at 270 (James Madison)). To similar effect, “Montesquieu's Spirit of the Laws arg......