Kuykendall, E. D., Jr.

English

bepress Legal Repository

Courts -- Constitutional Law -- Power of Congress to Diminish the Retired Salaries of Federal Judges

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 12 | Number 4 Article 96-1-1934Courts -- Constitutional Law -- Power of Congressto Diminish the Retired Salaries of Federal JudgesE. D. Kuykendall Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationE. D. Kuykendall Jr., Courts -- Constitutional Law -- Power of Congress to Diminish the Retired Salaries of Federal Judges, 12 N.C. L. Rev.367 (1934).Available at: http://scholarship.law.unc.edu/nclr/vol12/iss4/9NOTES AND COMMENTSCourts-Constitutional Law-Power of Congress to Diminish theRetired Salaries of Federal Judges.Plaintiffs, retired judges of a circuit and district federal courtrespectively, bring separate suits to recover a portion of their salaries,which had been withheld pursuant to an act of congress providingfor a 15 per cent reduction in the retired pay of judges, "whose payprior to retirement could not have been diminished under the Con-stitution." Plaintiffs contend that such act is in violation of ArticleIII, Section 1 of the Constitution, which forbids diminution of thecompensation of federal judges during their continuance in office.'Held, judgment for plaintiffs. A federal judge does noth relinquishhis office by retiremnent and the reduction of retired pay ag providedfor in that act is unconstitutional.2The constitutional provision forbidding diminution of judicialsalaries applies only to officers of constitutional courts created bycongress by virtue of the power given it in Article III, Section 1.3It is not applicable to those of legislative courts created by virtue ofthe power delegated to congress in other constitutional provisions.4Concededly the courts involved in the instant case belong to theformer class, and plaintiffs' salaries before retirement could not havebeen reduced.5The underlying principle behind the provision and decisions up-holding it is deduced from the Constitution itself which sets up threebranches of government essentially separate and independent, withneither department possessing an overruling influence in the admin-istration of their respective powers. 6 So careful have the courtsbargained away, and is inalienable even by express grant; and that all contractand property rights are held subject to its fair exercise."); Marcus BrownHolding Co. v. Feldman, 256 U. S. 170, 198, 65 L. ed. 877, 888, 41 Sup.Ct. 465, 466 (1921) (in sustaining the New York rent legislation as a validexercise of police power the court said: ". . . contracts are made subject tothis exercise of the power of the State when otherwise justified. .... ).'The North Carolina constitution contains a similar provision. N. C.CoNsT. (1868) ART. IV §18.2Booth v. United States, Amidon v. United States, 54 Sup. Ct. 379, 78 L.ed. 464 (1934).' O'Donoghue v. United States, 289 U. S. 516, 53 Sup. Ct. 740, 77 L. ed.1356 (1933) ; (1934) 9 IND. L. J. 318.'American Ins. Co. v. Canter, 1 Pet. 511 (U. S. 1828); ex parte BakeliteCorp., 279 U. S. 438, 49 Sup. Ct. 411, 73 L. ed. 789 (1929) ; Williams v. UnitedStates, 289 U. S. 553, 53 Sup. Ct. 751, 77 L. ed. 1372 (1933).'Supra note 3.'State v. Porter, 57 Mont. 343, 188 Pac. 375 (1920) ; In Re Taxation ofJudges' Salaries, 131 N. C. 692, 42 S. E. 970 (1902) ; Long v. Watts, 183 N. C.99, 110 S. E. 765 (1922) ; cf. Springer v. Philippine Islands, 277 U. S. 189, 48Sup. Ct 480, 72 L. ed. 845 (1927).THE NORTH CAROLINA LAW REVIEWbeen to preserve this protection that state as well as federal courtshave repeatedly held judges' salaries exempt from taxation on thetheory that the "power to tax is the power to destroy."7 It is diffi-cult to see how an income tax, a burden which is borne by all citizensalike, as distinguished from an occupational tax on the judiciaryalone, is a menace to the independence or existence of the judiciary,8and one court proceeds on this theory in holding judges' salaries sub-ject to income taxes.0The most extreme holdings, however, deal with the situation thatarises where no legislative appropriation is made for judges' salaries.Some courts have gone as far as to hold legislative appropriationsauthorizifig payment of such salaries unnecessary where the consti-tution prohibits their increase or diminution, on the theory that suchprovision is self-executing and exz proprio vigore makes the necessaryappropriation by law,10 although the majority view is that such ap-propriation is required before the salaries can be drawn."It is submitted that the court in the principal case has enforcedthe rule where the reason no longer exists. While an independentjudiciary is to be desired and jealously guarded, it would seem un-necessary to maintain an expensive safeguard where judicial inde-pendence is not threatened.' 2 Under the federal retirement statuteit is clear that a retired judge cannot be forced to undertake any dutyunwillingly. Under no circumstances is his duty after retirementobligatory.' 3 It would seem then that the court has taken a step,'Evans v. Gore, 253 U. S. 245, 40 Sup. Ct. 550, 64 L. ed. 887 (1920); NewOrleans v. Lee, 14 La. Ann. 197 (1859); Purnell v. Page, 133 N. C. 125. 45S. E. 534 (1903) ; Long v. Watts, supra note 6.'State v. Nygaard, 159 Wis. 396, 150 N. W. 512 (1915) ; see Evans v. Gore,sipra note 7 (dissent of Holmes, J.). Art. IV §12 of the proposed constitutionfor North Carolina provides that "the general assembly shall regulate ...salaries of all officers . . .but the salaries of justices of the Supreme Courtand judges of the superior courts shall not be diminished except by tax leviescommon to others during the time for which they shall have been elected."'Taylor v. Gelner, 329 Mo. 511, 45 S. W. (2d) 59 (1931) (As regards theconstitutional provision prohibiting diminution of judges' salaries, the courtsaid, "the section was never intended as a limitation on the taxing power.").10 State v. Hickman, 10 Mont. 497, 26 Pac. 386 (1891) ; Riley v. Carter, 25Pac. (2d) 666 (Okla. 1933) commented upon (1934) 22 GEo. L. J. 376." Meyers v. English, 9 Cal. 341 (1858) ; In Re Groff, 21 Nebr. 647, 33 N.W. 426 (1887).'- State v. Porter, supra note 6 (the principles underlying the constitutionalprovision were given effect and although the constitution of Montana prohibitedincrease or diminution, the court allowed an increase in judges' salaries on thetheory that as the reason for the rule ceases, so does the rule itself)."40 STAT. 1156, 1157 (1919) 28 U. S. C. A. §375 (1926) (".... but insteadof resigning, any judge other than a justice of the Supreme Court . . .mayretire upon the salary of which he is then in receipt, from regular active serv-NOTES AND COMMENTSthe direction of which is decidedly questionable, when it holds that aretired judge is still in office to such an extent that a diminution afteran increase is banned, notwithstanding the reduced salary remains inexcess of the salary payable when the incumbent took office. Fur-thermore, the provision in that aci for the appointment of a suc-cessor, who would be in fact in office, and whose "subsistence" couldnot be controlled by the legislature, would seem to be inconsistentwith the theory that his predecessor was still "in office,"'1 4 and wouldseem to furnish adequate comfort to those who fear for the inde-pendence of our judiciary.The wisdom of such a decision is rendered more doubtful in viewof the emergency which prompted the legislation diminishing the re-tired pay of federal judges. "The interpretation of constitutionalprovisions is to be made in view of the history of the times, the evilto be remedied, and the purpose to be accomplished,"' 5-a timelyrule of construction which the court in the instant case seems to haveignored.E. D. KUYKENDALL, JR.Criminal Law-Effect of a Plea of Nolo Contendere.The defendant was convicted in New Jersey under a plea of nolocontendere to an indictment for false pretense. He was subsequentlyconvicted in New York on a plea of guilty to an indictment forforgery, and, on information brought of the former conviction, wassentenced under the second offender statute. On appeal, held, thata conviction under a plea of nolo contendere is not such a convictionas to come within the contemplation of the second offender statute.'The plea of nolo contendere is of common-law origin,2 and mayice on the bench, and the President shall ... appoint a successor; ... but ajudge so retiring may nevertheless be called upon by the senior circuit judgeof his circuit and be by him authorized to perform such judicial dutiesas such retired judge may be willing to undertake.. ").1'Supra note 13; cf. Board v. Lee, 76 N. J. L. 327, 70 Atl. 925 (1908) (Thecourt said, "to assert that a term of office of a deceased or an impeached officercontinues, is to assert that there may be two terms of office running together,although the office can be filled but by a single person." It would seem thatthe same could be said of a resigning or retiring judge.) ; N. C. CODE ANN.(Michie, 1931) §3884a (North Carolina retirement statute). Investigation dis-closes no North Carolina cases similar to the principal one where judges, re-tired pursuant to that statute, bring action to recover a portion of their salarieswithheld by the state.Fargo v. Powers, 220 Fed. 217 (E. D. Mich. 1914).People v. Daiboch, 269 N. Y. S. 321 (1934). (Three-to-two decision.)2 Hudson v. U. S. 272 U. S. 451, 47 Sup. Ct. 127, 71 L. ed. 347 (1926);Tucker v. U. S., 196 Fed. 260 (C. C. A. 7th, 1912) ; Regina v. Templeman, 1

https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=5304&context=nclr

Courts -- Constitutional Law -- Power of Congress to Diminish the Retired Salaries of Federal Judges

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

University of North Carolina School of Law