1849. January Term. Sharpe V. Robert son. time to time to ordain and establish. When elected and commissioned, they are vested with judicial power generally; and the jurisdiction not only of the tribunals for which they were appointed, but of the Judges presiding over them, may be regulated by law. They may be rightfully required to exercise their judicial power in any mode the law may direct, the Legislature possessing the power to declare that their judgments, in cases confided to their jurisdiction, shall be final, or liable to be reviewed, and if erroneous, reversed, by the Supreme Court of Appeals. The old Constitution declared that "the two houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery and Judges of Admiralty." Instead, however, of proceeding to appoint Judges of the Supreme Court of Appeals by joint ballot, the act of May 1779, for constituting a Court of Appeals, formed the Court of the Judges of the High Court of Chancery, General Court and Court of Admiralty. The Judges of these Courts, without any new commissions, proceeded to organize the Court of Appeals, and the Court so constituted continued to act as the Supreme Court of Appeals, until the act of December 1788 directed that the Court should consist of five Judges, to be chosen by joint ballot and commissioned by the Governor. Amongst the Judges who composed part of the first Court, we find the names. of Pendleton and Wythe, Lyons, Carrington and others, men who, besides their eminence as jurists, participated in the formation of the Constitution under which they were acting. In the remonstrance of the Judges against the act establishing District Courts, 4 Call 144, allusion is made to the formation of the Court of Appeals. "The Court of Appeals, of whomsoever constituted, must necessarily act upon the subjects referred to all the others, and therefore the forming it, so as to consist of all the Judges, is no violation of the Constitution." This was a cotemporaneous exposition of the old Constitution, and proves that the Courts at that day did not deem it essential that there should be a previous election or commission to authorize a Judge appointed and commissioned to another tribunal, to exercise appellate jurisdiction in a different Court created by law. When the act of December 1788 substituted a new to the old Court of Appeals, the Legislature treated the old Court as a legislative Court, which it was competent to abrogate by law. The Judges thought otherwise, but to remove all difficulties resigned their appointments as Judges of the Court of Appeals. See proceedings, 4 Call 149. But whether a legislative or constitutional Court, does not affect the present argument. It was an Appellate Court, held by virtue of commissions in distinct tribunals, and the validity of its decisions has never been questioned. Yet under the old Constitution there would have been more reason for insisting on a distinct appointment and commission than at this time. The Constitution then provided for the appointment of distinct Judges to exercise different portions of judicial power. The Judges in that remonstrance say "that no regulation should blend the duties of the Judges of the General Court, Court of Chancery and Admiralty Courts, which the Constitution seems to require to be exercised by distinct persons." And when the attempt at a subsequent period was made to blend them, it was held, in Kamper v. Hawkins, to be a violation of the Constitution. It was in view of the embarrassments growing out of this restriction upon the Legislature, and to guard against them thereafter, that the comprehensive terms were adopted which are found in the new Constitution. The Judges are to be appointed to exercise judicial power generally, whether at common law or in chancery, as Courts of original or appellate jurisdiction, as the law may direct; and, as I conceive, is as applicable to this tribunal and the Judges 1849. January Term. Sharpe V. Robert son. thereof, as to the Judges of the Superior Courts. The 2d section of the act of 1819, 1 Rev. Code 190, authorized the Court to act as a Court of original jurisdiction. The act passed during the present session, with a view to the determination of the question now under consideration, does the same thing. The writ of mandamus, except when resorted to as an accessory to ap pellate jurisdiction, is an emanation from original jurisdiction only. It was accordingly held, in Marbury v. Madison, 1 Cranch 137, that as the Constitution had declared in what cases the Supreme Court shall have original jurisdiction, it negatived the exercise of it in all other cases; and therefore the 13th section of the act of 1789, vesting in the Supreme Court power to issue writs of mandamus generally to any Courts appointed, or persons holding office under the authority of the United States, was declared to be void, because it was a grant of original jurisdiction not warranted by the Constitution. The Constitution of Kentucky restricts the jurisdiction of the Court of Appeals to appellate jurisdiction only. In Daniel v. Warren County Court, 1 Bibb 496, it was held, that the mandamus being an incident to original jurisdiction, the Court of Appeals had no power to award it. Conceding that this Court could award a writ of mandamus to an inferior tribunal, as an incident to its appellate jurisdiction, to enable it properly to exercise its jurisdiction and enforce its judgments, this is not that case. We are asked to award the writ, to enforce the judgment of a distinct tribunal. Upon the return, issues of fact as well as of law may be raised, and they are to be determined according to the course and principles of the common law. The jurisdiction, therefore, which we are called upon to exercise, is, I think, original, not appellate. There is no direct prohibition to the exercise of such juprisdiction as in Kentucky; none to be implied from an enumeration of the In cases in which the Court may exercise original jurisdic- 1849. January Term. Sharpe V'. Robertson. 1849. January Term. Sharpe V. Robert son. place, as jurisdiction precedes discretion; and we should be chargeable with the grave error imputed to another tribunal, of pronouncing an opinion upon the merits of a controversy which we had no jurisdiction to decide. It seems to me, therefore, it was competent to impose the duties required to be performed by the act under consideration, upon any of the regularly appointed Judges of the Superior Courts; and the Constitution is not thereby violated. The Constitution declares that the Judges shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office. The act of March 31, 1848, re-organizes the General Court, and constitutes a Special Court of Appeals; and directs that each of the Judges composing those Courts shall, in addition to his annual salary, receive 10 dollars per day for cach day's attendance on such Special Court, and the General Court. This mode of compensating the Judges is objected to, inasmuch as it is not fixed, but variable, depending on the number of days the Judge may attend, and also because it is not permanent, but may be diminished or entirely taken away by lessening the terms of the Court, or repealing the law. It may be premised, that even if there was an irregularity in the mode of compensation provided, it could not affect the validity of the judgments rendered by the Court, if I am correct in the conclusion that the law is free from all constitutional objections in other respects. They would still be the judgments of properly appointed functionaries, vested by that appointment with competent judicial power, and pronounced in cases rightfully submitted to their jurisdiction. The law does not treat this compensation for their services as a portion of the salary. It gives it in addition to the salary. In the sense of the Constitution, the salary is a stated periodical payment for services. Fixed does not mean unchangeable; otherwise the increase, as well as diminution, would be unconstitutional; |