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THE JUDGES' EXPENSES.
OPINION OF THE ATTORNEY GENERAL.
Lansing, February 15, 1856. To the Board of State Auditors:
GENTLEMEN :-Your letter dated the 14th instant, is received, requesting my official opinion touching the power of the Board to allow the claims of the Circuit Judges for actual exper ses ir discharging their official duties, and inviting me to make a careful examination of the clauses of the Constitution which relate to the subject. The only clauses of the Instrument applicable to the question are the following:
Section 21 of article 4 declares, that “the Legislature shall not grant nor authorize extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into.”Section 9 of art. 6, provides that each of the Judges of the Circuit Court shall receive a salary payable quarterly.” Art. 9 provides that the Judges of the Circuit Court shall receive an annual salary of one thousand five hundred dollars. 4 They shall receive no fees or perquisites whatever for the performance of any duties connected with their offices." Section 20 of the schedule provides that "it shall not be lawful hereafter for the Legislature to increase or diminish the compensation of any officer during the term for which he was elected or appointed.” With respect to the Judges and State officers the word "compensation" has obviously the same meaning as the word "salary” in art. 9, and has no broader application. The word salary must of course receive its usual and popular signification, which is compensation or remuneration stipulated to be paid for services, usually a fixed sum to be paid by the year.
In consideration of the obligation assumed by a Judge in his election
and oath of office to perform the judicial service for the government required of him by the Constitution, the Constitution grants to him the salary of fifteen hundred dollars a year; and it may be added that although he might not be able, on account of sickness, or other cause, actually to perform the services, yet he is undoubtedly entitled to receive from the State the salary granted, so long as he is in fact vested with the office. Thus the salary adheres to the office, and becomes inseparable from it, thu mutuality of the contract consisting in the holding of the office by the judge, and his consequent obligation to perform the duties, and the grant of the salary by the State. It may
be added here, that section 11, of article 6, empowers the Legislature to require any Judge to hold the courts which are within another's Circuit, without relieving the former of his duties to hold his own, and yet the latter would under the Consitution be entitled to his full salary. This strengthens the view already taken that the salary in the intendment of the Constitution is attached to and inherent in the Judicial office.
What is the office? It is the duty and the power to perform the judicial acts authorized or required by the Constitution itself, and at the times and places designated by law; that is, to exercise for the State the jurisdiction conferred upon the judicial department in the sixth article of the instrument; in other words, to hear, try and determine the cases contemplated in that article. Should the Legislature, however, confer upon the Judges functions not judicial, no one will contend that they would be bound to exercise them without additional remuneration.
The sixth section of article 6 provides that the "State shall be divided into eight judicial circuits, in each of which the electors thereof shall elect one circuit judge, who shall bold his office for the term of six years, and until his successor is elected and qualified.” Section 11 of the same article provides that “a circuit court shall be held at least twice in each year in every county organized for judicial purposes, and four times in each year in counties containing 10,000 inhabitants.” Of course the Constitution foresees that the circuit judge must necessarily be absent from his home much of his time, and be at expense in traveling to and from the places fixed by law for his holding his court. That these absences and these expenses must necessarily be distributed very unequally among the Judges was also foreseen, and consequently if each
was bound to defray the expenses out of his onn means, that the real compensation (the salary) for performing their duties would be thus rendered unequal, and in some cases oppressively so. I cannot imagine
I that such was the intention of the framers of the ccnstitution or of the people who adopted it. I do not believe it to have been their intention that while one Circuit Judge, by being domiciled in a county, which of itself constitutes a circuit (as Wayne does now), is relieved from traveling expenses in holding his court, that another should be compelled, at his own expense, to travel thousands of miles yearly in holding his courts in new and remote counties, where the expense of traveling ananally absorbs a large proportion of the sum granted as salary. Such an intention cannot be imputed, for it implies a gross inequality, for which no reason is apparent on the face of the constitution, much less in the func. tions to be exercised, for they are the same in both cases, are of equal dignity and necessity, and equally important to the State.
I infer therefore that such was not only not the intention of the convention and the people, but that their intention was to place all the Judges in equality of compensation. Certainly the language of the 9th article plainly implies this, for each is to receive an annual salary, for holding the office and exercising its functions at the places assigned by law, and the only mode of securing this equality is the payment of such expenses by the public. How is it to be effected unless by making to each Judge the expenses he necessarily incurs in going from his home, holding his court and returning. To say that the people intended to throw upon him personally this serious burden, one which no man without an ample fortune can sustain without serious inconvenience, is to impute to them an intention that their Judges shall sustain a large share of the cost of serving them.
My opinion then is that the Constitution upon a just and reasonable interpretation of its terms contomplates the payment of such actual and necessary expenses, and that when incurred, they become a valid and legal charge against the State. Such expenses are neither “ salary” nor “compensation,” both which terms are synonymous as applied by the constitution to the State officers and Judges. They both imply the payment of money by the State to the proper officer for holding and exercising his office, or to speak more precisely and accurately, for holding the office. It cannot be necessary to cite adjudged cases on this point,
no decision, no commentary can a.!d clearness to the terms in which the Constitution expresses the proposition. It does not require them to pay their own expenses incurred in performing their official duties, and as such a requirement is in direct hostility to the express provision giving to each a certain salary or compensation for holding the office, and an equal one to all the others, the conclusion is to my mind irresistible that the object of the provision cannot be attained without the payment of thsoe expenses. The claim here is not for “ salary ” nor for "compensation,” nor for“ perquisites," nor "fees,” but only for indemnity. It is for the re-payment of money actually paid out by the Judges in discharging their official duties, without incurring which expenses it was not possible for them to perform those duties. These expenses were part of the indispensable means of exercising the functions of their office at the times and places established by law.
It seems to me that were it the case of a man employing an agent, on a distinct service, to perform which it was absolutely necessary for the latter to travel and incur expenses, and for the performance of which, at the proper place, he was to receive a stated sum, there could be no doubt or hesitation, without a stipulation to the contrary, the principal would upon the most familiar principles of justice be held to pay the expenses of his agent in reaching the spot and returning. Here perhaps I ought to stop, but as several objections have been taken to the allowanco, founded upon constitutional grounds, I will consider a few of them.
The first is, that it was the intention of the Convention that these salaries should be in full of all claims on the part of the judges. Where the evidence of the intention is supposed to be found is not known to me, certainly not in the public debates of the Convention who framed the Constitution. A perusal of these debates fails to throw any light on the subject in discussion, and even if they should upon their face indicate that such was the intention, and it appears from the language they have actually employed in the instrument, when interpreted by the ordinary rules applied by courts of justice, that such was not their intention, the debates ought to have no influence. The well settled principle of law, that the intention and effect of a written document whose terms are free from ambiguity, are to be derived from the Instrument itself, and not from the contemporaneous discussion of the parties, applies as