8. Miscellaneous.-A decree signed after resignation, but before acceptance, is valid.1 Where a cause in equity was heard in vacation and a written decision was filed by a judge whose term of office expired before the next sitting of the court, it was held that his successor might enter a formal decree in accordance with such decision, without a further hearing.2

IV. RIGHTS IN RELATION TO OFFICE--1. Commission of Judge.-The governor, in granting a commission, acts ministerially, and ought to make it conform to the law and to the constitution. The commission does not confer the office. It cannot change the tenure by which the constitution declares that the office shall be held.3 Like a patent, it is primary proof of title; but the courts may enquire whether one or the other was properly issued. In many cases the commission is a prerequisite to the right of qualification to office. Neither the secretary of state nor the court can go behind commissions to enquire into evidence on which it was issued.5 Official acts as judge of one whose commission is not valid, are good until the commission is declared void. There is a conflict of opinion as to whether or not the governor can be compelled by the court to issue a commission to a person elected judge.

See generally JURIES AND JURY TRIALS; TRIAL.

1. Northrop v. Gregory, 2 Abb. (U. S.) 503; Bashford v. People, 24 Mich. 244.

2. Mellinger v. Von Behren, 53 Iowa 374.

3. State v. Taylor, 15 Ohio St. 137, 143; People v. Burbank, 12 Cal. 378, 393; Burks v. Hinton, 77 Va. 48. Opinion of LEWIS, P., and see Com. v. Gamble, 62 Pa. St. 343, 350; Barry 7. Lanck, 5 Coldw. (Tenn.) 588; Commissioners of Boone Co. v. State, 61 Ind. 379; Reynolds v. State, 61 Ind. 392.

It is merely prima facie evidence of the facts recited therein. State v. Chapin, 110 Ind. 272, 276.

The term could not possibly be fixed by the commission for a larger term than that fixed by law. State v. Chapin, 110 Ind. 272, 276; Hench v. State, 72 Ind. 297.

4. Magruder v. Swann, 25 Md. 173. Objection to the commission should be made on the trial. State v. Anone, 2 Nott & McC. (S. Car.) 27; Taylor v. Skrine, 2 Treadw. Const. (S. Car.) 696; State v. Alling, 12 Ohio 16.

5. State v. Wrotnowski, 17 La. An.

17

been signed by the president, the appointment is made; and that the commission is complete, when the seal has been affixed to it by the secretary of state. When the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled." Marbury v. Madison, 1 Cranch (U.S.) 137; State v. Governor, 1 Dutch. (N. J.) 351.

6. Taylor v. Skrine, 2 Treadw. Const. (S. Car.) 696; Blackburn v. State, 3 Head (Tenn.) 690; Mayor etc. of Nashville v. Thompson, 12 Lea (Tenn.) 344, 347; Colloway v. Sturm, I Heisk. (Tenn.) 764.

7. See GOVERNOR, 8 Am. & Eng. Ency. of Law 1405; High on Extraordinary Remedies, § 65; Magruder v. Swann, 25 Md. 173. The case just cited is in favor of holding the governor liable, in a case where there is no room for discretion-as where a judgment has been rendered. But see contra, State v. Governor, 1 Dutch. (N. J.) 331; State v. Governor, 39 Mo. 388; Hawkins v. Governor, 1 Ark. 570; Taylor v. Governor, 1 Ark. 21; Lowe v. Towns Gov., 8 Ga. 360, denying, on this point, Bonner v. State, 7 Ga. 473, 480; State v. Warmoth, 22 La. An. 1; s. c., 2 Am. Rep. 712; State v. Warmoth, 24 La. An. 351.

In Missouri, the court said that the governor's duty to issue a commission

2. Tenure of Office.-Erroneous decisions under the constitution as to the tenure of a judge's office will be overruled, as not within the doctrine of stare decisis, which does not apply to questions of constitutional law.1

"It is a general rule that where an office is created by statute, it is wholly within the control of the legislature creating it. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished and the compensation taken away from the incumbent, unless forbidden by the constitution.2 There is no vested right in an office as against the public. The legislature may abolish a judgeship where the right to the office is not secured by the constitution.3 Nor do Nor do public offices constitute contracts protected as such from violation.4 And even though a judge's office be created by the constitution, if his tenure and compensation are left to the legislature, they may control and alter in these respects, saving that they cannot virtually abolish the office, as under pretence of reducing or taking away compensation.5 The legislature in such cases is moreover bound

is political, and not merely ministerial. State v. Governor, 39 Mo. 388. See also Lowe v. Towns Gov., 8 Ga. 360. See generally Pacific R. Co. v. Governor, 23 Mo. 353; Bonner v. State, 7 Ga. 473; Lowe v. Towns Gov., 8 Ga. 360; Martin v. Ingham, 38 Kan. 641, 649, citing many cases: Tennessee etc. R. Co. v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189; Wright v. Nelson, 6 Ind. 496; Baker v. Kirk, 33 Ind. 517; Gray v. State, 72 Ind. 567; Groome v. Gwinn, 43 Md. 572; Chamberlain v. Sivley, 4 Minn. 309; Chumasero v. Potts, 2 Mont. 242; State v. Blasdel, 4 Nev. 241; Cotten v. Ellis, 7 Jones (N. C.) 545; State v. Chase, 5 Ohio St. 528.

Opposed to many of the cases in this list, and negativing the judicial control of the governor's acts, are, besides those before mentioned: State v. Drew, 17 Fla. 67; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; People v. Cullom, 100 Ill. 472; Dennett v. Petitioner, 32 Me. 508; People v. Governor, 29 Mich. 320; Rice v. Austin, 19 Minn. 103; Western R. Co. v. De Graff, 27 Minn. 1; Vicksburg R. Co. v. Lowry, 61 Miss. 102; Hartranft's Appeal (contempt case), 85 Pa. St. 433; Mauran 7. Smith, 8 R. I. 192; Turnpike Co. v. Brown, 8 Baxt. (Tenn.) 490.

The decisions are reviewed in an elaborate opinion in the Kansas case. Martin v. Ingham, 38 Kan. 641.

In Com. v. Pattison, 109 Pa. St. 165, a petition for mandamus against the governor of Pennsylvania, command

ing delivery of commission as president judge, was denied, but upon other grounds than the one in question.

No clerk of the court has authority to qualify a person elected before he has been commissioned; for, in the absence of a commission, there would be no sufficient evidence of an election or appointment. Magruder v. Tuck, 25 Md. 217.

Forfeiture of Commission.-In an old case it was held that a judge forfeits his commission by leaving the State without permission of the governor. But until the forfeiture is announced by competent authority, his judicial acts are valid. Taylor v. Skrine, 2 Treadw. Const. (S. Car.) 696. And see People v. Collins, 7 Johns. (N. Y.) 549; McInstry v. Tanner, 9 Johns. (N. Y.) 135.

1. Tenure of Office.-See generally OFFICERS (PUBLIC); Burks v. Hinton, 77 Va. 1; State v. Jumel, 30 La. An. 861, 863.

2. People v. Lippincott, 67 Ill. 333, 337; Conner v. New York, 2 Sandf. (N. Y.) 355; s. c., 5 N. Y. 285; Butler v. Pennsylvania, 10 How. (U. S.) 402416; Com. v. Bacon, 6 S. & R. (Pa.) 322; Bryan v. Cattel, 15 I. 538; Cooley Con. Lim. 276-7.

Of

3. State v. Scott, 9 Ark. 270. course, then, the same thing can be done by constitutional amendment. State v. McBride, 4 Mo. 303.

4. Cooley Con. Lim., § 276; Hare's Am. Const. Law 650.

5. Conner v. Mayor etc. of New

to respect an intendment of the constitution that judges shall be elective. It cannot in effect do away with this right of the people by making terms of unreasonable length. The legislature has no more power to enlarge a judicial term fixed by the constitution than it has power to abridge the same.""

(a) Abolition or Change of Courts.-The tenure of the office, as has been already stated, does not rest on contract, and is not protected by the contract provision in the United States constitution. The general assembly cannot, directly or indirectly, abolish any "constitutional office;" that is, one whose tenure is defined by the constitution; but it may, directly or indirectly, abolish any "legislative office;" that is, one created by the general assembly itself. But the power of the legislature to alter the territorial jurisdiction of justices of the peace necessarily arose from the constitutional power to create new counties.5 And out of the legislative power to reorganize and regulate the courts grows the power to divide a judicial district, or to diminish the aggregate duties by creation of an assistance. But the legislature cannot take away altogether the authority of a judge, the grant and tenure of whose office are fixed by the constitution.7 Modifying a judicial office in regard to title and duties, and continuing the former official in the new court, is not depriving the officer of his office. Where a new judicial district is created, but

York, 2 Sandf. (N. Y.) 355; Sprague v. Brown, 40 Wis. 612, 618; State v. Benedict, 15 Minn. 198.

1. State v. Benedict, 15 Minn. 198, 203; Jordan v. Bailey, 37 Minn. 174, 178. It follows, of course, from what has been said that the legislature may direct that the incumbents shall hold until coming in of successors. Jordan v. Bailey, 37 Minn. 174, 176.

2. State ex rel. Smith v. Askew, 48 Ark. 82.

3. Com. v. Gamble, 62 Pa. St. 343, 349. See also Opinions of Justices, 117 Mass. 603.

4. Foster v. Jones, 79 Va. 642; State v. Wright, 7 Ohio St. 333; State v. Gaines, 2 Lea (Tenn.) 316; doubted in State v. Leonard, 86 Tenn. 491; State v. Smith, 65 N. Car. 369; State v. Walker, 65 N. Car. 461; Board of Van Buren Co. v. Mattox, 30 Ark. 566; State v. Gaines, 2 Lea (Tenn.) 316; State v. Floyd, 9 Ark. 302.

Constitutional Office in Louisiana.A judge enjoying a constitutional office has a vested right to the emoluments thereof during the term fixed by the constitution and cannot be deprived thereof by a statute abolishing the office. State v. Jumel, 30 La. An. 861.

5. Respublica v. McClean, 4 Yeates

(Pa.) 399; Ex parte M'Collum, 1 Cow. (N. Y.) 550; People v. Garey, 6 Cow. (N. Y.) 640; People v. Garey, 6 Cow. (N. Y.) 642. See also People v. Morrell, 21 Wend. (N. Y.) 563. Compare Com. v. Gamble, 62 Pa. St. 343, 352; Ex parte M'Collum, 1 Cow. (N. Y.) 550.

6. Com. v. Gamble, 62 Pa. St. 352; Ex parte M'Collum, i Cow. (N. Y.) 550; State v. Choate, 11 Ohio 511. See also Allen v. Dunham, I Greene (Iowa) 89; State v. Messmore, 14 Wis. 163.

Transfer of Cases to New Court.When a trial was commenced and the testimony taken by a judge before his term expired under an old constitution, and his court was, under a new constitution, superseded by a new court, to which he obtained election; held, that as a judge under the new constitution, in the new court, he could decide the case on the evidence taken in the old court, without a re-submission. Seale v. Ford, 29 Cal. 105.

7. Com. v. Gamble, 62 Pa. St. 343; People v. Dubois, 23 Ill. 547; Ballou v. Bangs, 24 Ill. 184; State v. Messmore, 14 Wis. 163. See also State v. Draper, 43 Mo. 220; State v. Kinkead, 14 Nev. 117; Washoe Co. v. Humboldt Co., 14 Nev. 123.

8. Coon v. Atty. Gen., 42 Mich. 65.

the legislature, although empowered to appoint a judge thereof, omit to do so, there is a "vacancy," to be filled as provided in cases of vacancy.1

3. Vacancies in Office.-At common law, vacancies ex vi termini means vacancies in the office and not in the term.2 The general

1

rule is, that where the law creates an office and designates the term, the person elected to fill the office will hold until his successor is elected and qualified, unless there is some express provision to the contrary, and by his so doing vacancy is prevented.o Appointment, therefore, as if there were vacancy, would be void in such case. 3

An age limitation does not create a vacancy, but marks a length of term which must end either at the running out of the ordinary period, or on the judge's reaching a prescribed age.4

Authority vested in the legislature to provide manner of filling vacancies was held, in Tennessee, not to embrace power to fix the length of term; but in Virginia, against an able dissenting opinion, one of the grounds of the decision was that such authority enabled the legislature to control the term resulting from the vacancy.5

When the duration of a term of office is fixed by the constitution and the mode of filling is prescribed, if the time when the term is to commence is not fixed, the officer chosen in the mode prescribed, although to fill a vacancy, holds for the full time appointed for the office by the constitution. The legislature cannot provide that appointees upon vacancy in such office shall hold for the unexpired term merely; the constitutional provision as to length of term must be observed. In order to so confine the beginnings of all full length terms to certain regular periods and to deny thereby a full term to an official chosen upon vacancy, the intent need not be declared in express words: Thus such intent was held to be manifested respecting the members of the South Carolina supreme court, as to whom the constitution provided that one of the justices shall go out of office every two years. Thereby was fixed imperatively a regular rotation which the leg

in Judge's Office.-State v. Glenn, 7 Heisk. (Tenn.) 472; State v. Choate, 11 Ohio 511; State v. Taylor, 18 Ohio St. 137; Surrogate in New York, People v. Carr, 62 How. Pr. (N. Y.) 51; affirming 25 Hun (N. Y.) 325.

1. Oppenheim v. Pittsburgh etc. R. Co., 85 Ind. 471, 473.

2. State ex rel. Loring v. Benedict, 15 Minn. 198; Jordan. v. Bailey, 37 Minn. 174, 176; Stilsing v. Davis, 45 N. J. L. 390; Tappan v. Gray, 9 Paige (N. Y.) 507; State v. Howe, 25 Ohio St. 588, 596-599; People v. Van Horne, 18 Wend. (N. Y.) 518.

3. State v. Davis, 45 N. J. L. 390, applying the rule to police justices of Jersey City; Jordan v. Bailey, 37 Minn. 176; State v. Lusk, 18 Mo. 333; State . Howe, 25 Ohio St. 588; s. c., 18 Am. Rep. 321; Mechem on Public Offices, §§ 128, 129.

4. People v. Brundage, 78 N. Y. 403; affirming same case, 18 Hun (N. Y.)

291. See also as to age limitation, People v. Gardner, 59 Barb. (N. Y.) 198.

5. Keys v. Mason, 3 Sneed (Tenn.) 6; Burks v. Hinton, 77 Va. 1.

6. Governor v. Nelson, 6 Ind. 496; State v. Mayor etc. of L. Porte, 28 Ind. 248; Baker v. Kirky, 33 Ind. 517; Whipper v. Reed, 9 S. Car. 6; Crowell v. Lambert, 9 Minn. 283; State v. Ware, 13 Oreg. 386; Sansbury v. Middleton, 11 Md. 296, 313; People v. Burbank, 12 Cal. 378; Hughes v. Buckingham, 5 Smedes & M. (Miss.) 632; Becker v. Thompson, Phila. Common Pleas, 14 Phila. (Pa.) 201; Ex parte Meredith, 33 Gratt. (Va.) 120 (overruled in 77 Va., but not as to this); Keys v. Mason, 3 Sneed (Tenn.) 6. See also Brewer v. Davis, 9 Humph. (Tenn.) 208, 213. See also Burks v. Hinton, 77 Va. 1 (overruling, as already said, In re Meredith, 33 Gratt. (Va.) 119; s. c., 36 Am. Rep. 771, also Estes v. Edmondson, 33 Gratt. (Va.) 510); Howison v.