People ex rel. Barbour v. Mott

Hastings, Chief Justice, delivered the opinion of the court as follows.

This case is brought here informally upon an agreed statement of facts, in substance as follows:—

The legislature at its last session having created the Tenth Judicial District, and not having appointed a Judge therefor, the Governor, on the 1st day of May last, issued a commission to the respondent, who was duly qualified, as required by law. That the relator, on the 10th day of October last, received a commission from the Governor as Judge of said district, having been elected by the people at the September general election, and was duly qualified by taking the constitutional oath of office. That the relator having appeared in court, the respondent then being on the bench, claimed the rightj to exercise the duties of Judge of the court. The court decided that he had not such right, and adjourned until the 3d Monday of October, for the purpose of ■ obtaining the decision of this court upon the right set up by the .relator.

The office of District Judge is usually termed a constitutional ■ office, as distinguished from those offices which are created by the ■ legislature. It is an office whose term is fixed by the Constitution, and it is not in the power of the legislature to abridge or in any manner impair its functions.

Nor can the legislature supply a vacancy in it at any time, in any manner contrary to the plain meaning and intent of the provisions of the Constitution.

Art. 6th, sect. 5th, creates two terms, of different duration, the first for two years, and the second and all succeeding terms for six years. The first was merely provisional and temporary, the [505]second and all future terms permanent, and the office ever thereafter elective.

The District Judge for the first term was to be “ appointed by the joint vote of the legislature at the first meeting.” This is the only instance in which the legislature can exercise the power of appointment of a District Judge, and seems to have been conferred upon that body in the one instance, on account of the inconvenience and delay attending an election of the people on the primary organization of the several departments of the state government. In case of a vacancy happening after the first session, section 8th, art. 5th, provides, not that the legislature shall appoint, but that the Governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the legislature, or at the next election of the people. If the appointment of the District Judge could not be made by the legislature, why is the commission to expire at the close of its session ?