I cannot agree with Mr. Justice CLARK in the conclusion which he has reached in this case.
The question involves the construction of the following section of the Constitution:
"Each of the judges of the circuit courts shall receive a salary payable monthly. In addition to the salary paid from the State treasury, each circuit judge may receive from any county in which he regularly holds court such additional salary as may be determined from time to time by the board of supervisors of the county. In any county where such additional salary is granted it shall be paid at the same rate to all circuit judges regularly holding court. therein." Article 7, § 12.
The controversy arises over the meaning of "regularly holding court." It is conceded that regularly has more than one meaning. It may mean what the plaintiff claims it means, "by authority of law." It may mean what the defendants claim it means, "continuously," "regular in point of time," "at fixed and certain intervals." The question is not what it ordinarily means, not what the dictionaries say it means, but what meaning it has as used in this section of the Constitution. What did the constitutional convention intend it to mean? To determine this we must call to our aid the proceedings of that convention, and we must also read and consider the section in question with reference to other provisions of the Constitution in the same article.
Both the Constitutional Debates and section 8, article 7, show that the convention had before it the matter of providing for a change in the system of holding court in the judicial circuits of the State. The idea *Page 108 was to equalize the work. It was well known that in some circuits the work was very light, and that in others it was very heavy. To enable the legislature to provide a system for a more equal distribution of the work, section 8 was adopted. The applicable part reads as follows:
"Each circuit judge shall hold court in the county or counties within the circuit in which he is elected, and in other circuits as may be provided by law. The legislature may by law arrange the various circuits into judicial districts, and provide for the manner of holding court therein."
Now, having provided for equalizing the work, the next step was to equalize the salaries. With this in mind, Mr. Richard C. Flannigan, a member of the convention, proposed an amendment to the effect that if the plan suggested in section 8 should be adopted by the legislature, the additional salaries authorized by the boards of supervisors should be paid equally to each circuit judge holding court in the district or new circuit. The debate which followed shows clearly that every member of the convention understood that the purpose was to equalize the salaries of the circuit judges. The amendment received the approval of the convention and was referred to the committee on arrangement and phraseology, to be put in legal form. It came out of that committee clothed in the following language, which is now the last sentence of section 12:
"In any county where such additional salary is granted it shall be paid at the same rate to all circuit judges regularly holding court therein."
Justice CLARK and I are not in disagreement as to the purpose of this provision of the Constitution. We disagree only as to its application under the present law. It is evidently true that it was proposed by the convention in anticipation that the legislature would district or re-circuit the judicial circuits of the State. *Page 109 But if the legislature should provide some other system which would accomplish the same purpose, the provision for equalizing the salaries would be just as necessary. The constitutional convention did not undertake to dictate to the legislature the particulars of any plan or system. It just suggested a plan. Whatever authority it conferred was permissive only. Its purpose was to authorize the legislature to provide some system to more evenly distribute the work. It did not leave to the legislature the matter of equalizing the salaries. That was taken care of in the constitutional provision in question. It would seem not unreasonable to say that, if the legislature, in carrying out the purpose of the constitutional mandate, compelled a circuit judge to leave the circuit in which he was elected, and to hold court in some distant part of the State, where the local judges were receiving a much larger salary than he received in his home circuit, when he was thus compelled by law to do the same work that they were doing, he should receive the same salary. The theory of the constitutional provision is that all judges should be treated alike when doing the same work. Mr. Flannigan thus expressed it in the convention debates:
"The purpose of the amendment is this: To obligate the board of supervisors of any county electing to pay extra compensation, to treat alike every circuit judge who is compelled by law to hold court in such county." Debates of Const. Conv. p. 709.
Following the adoption of the constitutional amendments, the legislature provided a system for equalizing the work. There were obvious difficulties in the way of districting and re-circuiting the State. So it adopted a different system, but one which accomplished the constitutional purpose. It created the office of presiding circuit judge and gave him, "Full directory power over the matter of apportioning the *Page 110 work of the several circuits among the circuit judges of the State."
It is as though the legislature had said, "we will consider the State as one great judicial circuit, we will create a presiding circuit judge, with power to apportion all the judicial work and direct the circuit judges where they shall hold court." Can it be said with any degree of reason that, if under this act judicial work in the Wayne circuit was apportioned to Judge Lamb, he would not be regularly holding court there? Since this statute, holding court in other circuits than that in which he was elected is a part of the regular duties of the circuit judge. The work in his own circuit is to be apportioned by the presiding circuit judge. Under this law, Judge Lamb or any other circuit judge can be compelled to hold court in the Wayne circuit three-fourths of his time, and if we give the constitutional provision the construction which the defendants contend for, while doing the same work as the local judges, he would be receiving $8,500 less salary. It was this unjust inequality in salaries that the members of the constitutional convention anticipated, and which they sought to avoid by the amendment contained in section 12. It seems to me to be beyond question that where a circuit judge is doing work apportioned to him by the law, whether in his own circuit or in any other, he is regularly holding court there. It is taking an entirely too narrow and technical a view of the matter to say that the constitutional provision in question is to be without force and effect, or is to fail in its purpose merely because the legislature did not district or re-circuit the judicial circuits of the State.
The constitutional provisions which we have been considering were intended to accomplish two objects, first, to equalize the work of the circuit judges, and, second, to equalize their salaries. The first has been *Page 111 accomplished by the legislature in creating a presiding circuit judge and empowering him to apportion the work of all the judicial circuits of the State; the second will have been accomplished if we hold to the reasonable construction that every circuit judge is regularly holding court whenever and wherever he is doing the judicial work apportioned to him under authority of the law.
Judge Lamb was lawfully apportioned judicial work in the Wayne circuit court. He was regularly holding court there, performing the same services as the local judges were performing, and was entitled to the same compensation.
The writ of mandamus should issue.
Justice MOORE took no part in this decision.