1. A district or circuit judge of the United States who retires
pursuant to § 260 of the Judicial Code, as amended, continues in
office within the meaning of § 1 of Art. III of the Constitution,
and his compensation may not be diminished. P.
291 U. S.
348.
2. In the light of the evident purpose of the Act that a
retiring judge shall continue to hold office and perform official
duties, its provision for the appointment of a "successor" cannot
be construed as vacating the office. P.
291 U. S.
351.
3. A diminution after an increase of compensation, even though
not a reduction below the rate at date of appointment, is a
diminution within the meaning of § 1 of Art. III. P.
291 U. S. 352.
Certificates from the Court of Claims in two cases involving the
validity of an Act reducing the pay of retired federal judges.
Page 291 U. S. 346
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The Court of Claims has certified two questions:
"1. Does a United States District or Circuit Judge who, having
served continuously for ten years and attained the age of seventy
years, does not resign but retires under the provisions of § 260 of
the Judicial Code, as amended, continue in office within the
meaning of § 1 of Article III of the Constitution, which forbids
diminution of the compensation of Judges during their continuance
in office?"
"2. Where the salary of a United States District or Circuit
Judge is increased by law after his appointment and he has
subsequently retired in full compliance with the provisions of §
260 of the Judicial Code, as amended, is a reduction of his
compensation as a retired Judge to an amount not below that fixed
by law as his salary at the time of his appointment a diminution of
his compensation within the meaning of § 1 of article III of the
Constitution?"
We are informed by the certificate in No. 656 that Wilbur F.
Booth was appointed United States Circuit Judge for the Eighth
Judicial Circuit on March 18, 1925, and qualified March 27, 1925.
For many years prior to and up to the time of this appointment, he
had held the office of Judge of the United States District Court
for the District of Minnesota, and on November 28, 1931, he had
served continuously as District or Circuit Judge for more than
seventeen years. January 1, 1932, having attained the age of
seventy, he retired, pursuant to the provisions of § 260 of the
Judicial Code as amended. Since his retirement, he has continued to
perform the duties of a
Page 291 U. S. 347
retired United States Circuit Judge in the manner provided by
law, and has participated in the hearing and decision of many cases
pending in the Circuit Court of Appeals for the Eighth Circuit.
At the time of Judge Booth's appointment as Circuit Judge, the
annual compensation was fixed by law at $8,500 per annum, and was
subsequently increased to $12,500 per annum, at which figure it
stood when he retired. By § 13 of the Independent Offices
Appropriation Act of June 16, 1933 (Public No. 78), it was
provided:
"For the period of the fiscal year ending June 30, 1933,
remaining after the date of the enactment of this Act, and during
the fiscal year ending June 30, 1934, the retired pay of judges
(whose compensation, prior to retirement or resignation, could not,
under the Constitution, have been diminished) is reduced by 15
percentum."
By reason of this Act, the plaintiff was paid during the period
from June 15, 1933, to October 1, 1933, at the rate of $10,625 per
annum. The amount withheld from him during that period was $697.93.
He duly protested against the reduction, and brought suit in the
Court of Claims, asserting that the Act violates the provision of
the Constitution which forbids diminution of the compensation of
federal judges during their continuance in office. The government
demurred to the petition.
The relevant facts certified in No. 657 are that Charles F.
Amidon was appointed Judge of the United States District Court for
the District of North Dakota on February 18, 1897, and qualified on
February 27, 1897. From the date last mentioned to June 2, 1928, he
served continuously in that capacity. Having attained the age of
seventy years, he retired June 2, 1928, pursuant to § 260 of the
Judicial Code as amended, and has ever since continued to perform
the duties of a retired United States District Judge in the manner
required by law, and has, as conditions permitted and the business
of the
Page 291 U. S. 348
court demanded, performed judicial acts as such retired
judge.
At the date of his appointment, the salary of the office was
fixed by law at the rate of $5,000 per annum. It has been increased
from time to time and at the date of plaintiff's retirement was at
the rate of $10,000 per annum. Pursuant to § 13 of the Independent
Offices Appropriation Act,
supra, he received, during the
period from June 15, 1933, to October 31, 1933, compensation at the
rate of $8,500 per annum. He protested against the reduction and
brought suit in the Court of Claims to recover the sum of $558.34,
the amount withheld during the period mentioned. The government
demurred to the petition.
The pertinent portion of § 1 of Article III of the Constitution
is:
"The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, and shall at stated Times,
receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office."
1. The first question asks, in effect, whether a United States
Judge, upon retirement, relinquishes or retains his office. The
answer is to be found in the act of Congress authorizing
retirement.
* That act
provides for resignation
Page 291 U. S. 349
and for retirement. In referring to the former, it uses the
expression "[w]hen any judge . . . resigns his office . . . ," and
provides for continuance of compensation after resignation. In
contrast, it declares,
"But,
Page 291 U. S. 350
instead of resigning, any judge . . . who is qualified to resign
under the foregoing provisions, may retire, upon the salary of
which he is then in receipt, from regular active service on the
bench, . . ."
not, be it noted, from office. The retiring judge may be called
upon by the senior circuit judge to perform judicial duties in his
own circuit or by the Chief Justice to perform them in another
circuit, and be authorized to perform such as he may be willing to
undertake. There is provision for appointment by the President of
an additional judge for the circuit or district court where a
sitting judge is found unable efficiently to discharge all his
duties by reason of mental or physical infirmity of a permanent
character. In that case, the sitting judge unquestionably retains
his office, and it is significant that the act declares either a
retired judge, or one whose mental or physical condition has caused
the President to appoint an additional judge, shall be treated as
junior to the remaining judges of the court.
By retiring pursuant to the statute a judge does not relinquish
his office. The language is that he may retire from regular active
service. The purpose is, however, that he shall continue, so far as
his age and his health permit, to perform judicial service, and it
is common knowledge that retired judges have in fact discharged a
large measure of the duties which would be incumbent on them, if
still in regular active service. It is scarcely necessary to say
that a retired judge's judicial acts would be illegal unless he who
performed them held the office of judge. It is a contradiction in
terms to assert that one who has retired in accordance with the
statute may continue to function as a federal judge and yet not
hold the office of a judge. The Act does not, and indeed could not,
endue him with a new office, different from but embracing the
duties of the office of judge. He does not
Page 291 U. S. 351
surrender his commission, but continues to act under it. He
loses his seniority in office, but that fact, in itself, attests
that he remains in office. A retired District Judge need not be
assigned to sit in his own district.
Maxwell v. United
States, 3 F.2d 906,
aff'd, 271 U.S. 647. And if a
retired judge is called upon by the Chief Justice or a Senior
Circuit Judge to sit in another district or circuit, and he
responds and serves there, his status is the same as that of any
active judge, so called.
McDonough v. United States, 1
F.2d 147. It is impossible that this should be true and that, at
the same time, the judge should hold no office under the United
States.
The government argues that the holding of an office involves the
performance of duties, and since no duties are obligatory on one
who has retired under the Act, he cannot be said to hold any
office. But Congress may lighten judicial duties, though it is
without power to abolish the office or to diminish the compensation
appertaining to it. This was the evident purpose, and the
statements made by the member in charge of the bill on the floor of
the House show that it was expected, as has proved to be the case,
that retired judges would render valuable judicial service.
Cong.Rec. 65th Cong.3d Sess. vol. 57, part 1, pp. 368, 369. It is
too late to contend that services so performed were extra-legal and
unconstitutional.
Some reference is made to the fact that, under the Act, a
successor to the retiring judge is to be appointed, and it is
claimed the direction is inconsistent with his retention of office.
The phraseology may not be well chosen, but it cannot be construed
to vacate the office of the retiring judge, in the light of the
evident purpose that he shall continue to hold office and perform
official duties.
Page 291 U. S. 352
2. Does the Constitution prohibit reduction of the compensation
which was fixed by law at the time of appointment or that to which
the judge was entitled at the date of retirement?
In other words, is a diminution after an increase banned if the
compensation, notwithstanding the reduction, remains in excess of
that payable when the incumbent took office? The answer must be in
the affirmative. Several courts, in well considered decisions, have
so interpreted analogous provisions of state Constitutions
(
Commonwealth ex rel. Hepburn v. Mann, 5 Watts & S.
403;
City of New Orleans v. Lea, 14 La.Ann.197;
Long
v. Watts, 183 N.C. 99, 110 S.E. 765), and the Solicitor
General, with commendable candor, admits that a contrary
construction would be subversive of the purpose of § 1 of Article
III.
Question 1 answered Yes.
Question 2 answered Yes.
* Together with No. 657,
Amidon v. United States,
certificate from the Court of Claims.
* Judicial Code, § 260, as amended by the Act of February 25,
1919, c. 29, § 6, 40 Stat. 1157, U.S.C. Title 28, § 375, and the
Act of March 1, 1929, c. 419, 45 Stat. 1422 (Supp. III, Title 28, §
375):
"When any judge of any court of the United States, appointed to
hold his office during good behavior, resigns his office after
having held a commission or commissions as judge of any such court
or courts at least ten years continuously (or otherwise), and
having attained the age of seventy years, he shall, during the
residue of his natural life receive the salary which is payable at
the time of his resignation for the office that he held at the time
of his resignation. But, instead of resigning, any judge other than
a justice of the Supreme Court, who is qualified to resign under
the foregoing provisions, may retire, upon the salary of which he
is then in receipt, from regular active service on the bench, and
the President shall thereupon be authorized to appoint a successor;
but a judge so retiring may nevertheless be called upon by the
senior circuit judge of that circuit and be by him authorized to
perform such judicial duties in such circuit as such retired judge
may be willing to undertake, or he may be called upon by the Chief
Justice and be by him authorized to perform such judicial duties in
any other circuit as such retired judge may be willing to
undertake, or he may be called upon either by the presiding judge
or senior judge of any other such court and be by him authorized to
perform such judicial duties in such court as such retired judge
may be willing to undertake."
"In the event any circuit judge, or district judge, having so
held a commission or commissions at least ten years continuously
[or otherwise], and having attained the age of seventy years as
aforesaid, shall nevertheless remain in office, and not resign or
retire as aforesaid, the President, if he finds any such judge is
unable to discharge efficiently all the duties of his office by
reason of mental or physical disability of permanent character,
may, when necessary for the efficient dispatch of business,
appoint, by and with the advice and consent of the Senate an
additional circuit judge of the circuit or district judge of the
district to which such disabled judge belongs. And the judge so
retiring voluntarily, or whose mental or physical condition caused
the President to appoint an additional judge, shall be held and
treated as if junior in commission to the remaining judges of said
court, who shall, in the order of the seniority of their respective
commissions, exercise such powers and perform such duties as by law
may be incident to seniority. In districts where there may be more
than one district judge, if the judges or a majority of them cannot
agree upon the appointment of officials of the court, to be
appointed by such judges, then the senior judge shall have the
power to make such appointments."
"Upon the death, resignation, or retirement of any circuit or
district judge, so entitled to resign, following the appointment of
any additional judge as provided in this section, the vacancy
caused by such death, resignation, or retirement of the said judge
so entitled to resign shall not be filled."
The words inclosed in brackets were added by the Act or March 1,
1929.