I dissent, and think that petitioner is entitled to a salary of eight thousand dollars per annum. My views on the subject are briefly these: —
The constitution provides that the salaries of justices of the district courts of appeal "shall be the same as those of *Page 79 justices of the supreme court," and by the act of March 18, 1905, it is enacted that "the annual salary of each justice of the supreme court is eight thousand dollars." There is no doubt, therefore, that the annual salary of justices of the supreme court as fixed by law is eight thousand dollars, leaving out of view for the present the proposition that certain individual justices may be precluded from receiving that amount on account of the provision that the salaries of justices "shall not be increased or diminished after their election nor during the term for which they shall have been elected." The whole law existing to-day touching the salaries of justices of the supreme court commenced with the adoption of the constitution of 1878. This constitution deals with the whole subject of the salaries of justices and judges of the new courts which it creates, and necessarily covers that whole subject; and, of course, statutes about the salaries of justices of former courts are no longer of any significance. As to the salaries of the judges of the new superior courts, its provision is that "until otherwise changed by the legislature the superior court judges shall receive an annual salary of three thousand dollars each." But the provision as to salaries of justices of the supreme court is materially different. It is that "during the term of the first judges elected under this constitution the annual salaries of the justices of the supreme court shall be six thousand dollars each." It does not provide that such salaries shall continue until otherwise provided by the legislature. It does not provide at all for salaries of justices who shall be elected after the first term. It leaves that for the legislature, whose duty it was to provide for the salaries of said future justices. The legislature, however, neglected that duty until March 18, 1905. And when, at the last-named date, the legislature did perform that duty by fixing the salary at eight thousand dollars, the salary was not thereby "increased." It simply for the first time fixed the salary, not by increasing an existing salary, for there was none, but by remedying the former neglect to fix any salary at all. The fact that from the time when the provision of the constitution as to the salaries of the first justices ceased, the state, without any law on the subject, paid the justices certain compensation, does not in any way affect the validity of the above views.
This subject would, of course, be a delicate one for the *Page 80 justices of this court to handle if their salaries were involved; but the case at bar involves only the salaries of justices of the district courts of appeal. It may be noticed, however, that the opposite view would leave the salaries of the district appellate justices in confusion for many years, unless the people next year adopt a pending constitutional amendment. According to the prevailing opinion, those justices are not to receive the salary fixed generally by law as the salary of the justices of the supreme court, but only such salary as the latter justices are actually receiving under the provision against increasing salaries. Does that mean the salary which a majority of such justices are receiving, or the salary which any of them are receiving? In January, 1907, there will be two newly elected justices of the supreme court who will not be subject to the provision against increasing salaries, and they will undoubtedly be entitled to the eight-thousand-dollar salary. But at that time the other five members of this court will, under the rule announced, be entitled to only six thousand dollars; and at that time will the newly elected justices of the district courts of appeal be entitled to the eight thousand dollars received by two of the supreme court justices, or will they be deprived of the eight thousand dollars until 1911, when a majority of the supreme court justices will be entitled to receive the eight thousand dollars? In my opinion the constitution clearly intends that after the expiration of the term of the first justices of the supreme court the entire matter of their salaries shall rest with the legislature, subject only to the provision that after the legislature had once fixed the salary any increase which it should afterwards make should not affect those already in office during their terms.