I am of the opinion that the judgment below should be affirmed, for reasons which I shall briefly state. Section 13 of article 6 of the judiciary article *Page 312 of the Constitution, adopted in 1869, fixed the elective term of justices of the Supreme Court at fourteen years, but provided that no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age. The effect of this latter provision was to shorten the elective term in case of incumbents who reach the prescribed age of seventy years during their elective term, that is, before the expiration of fourteen years after the commencement of such term. Their term then ceased, and with it the emoluments of the office. In 1880 section 6 was amended by adding this clause. "The compensation of every judge of the Court of Appeals and of every justice of the Supreme Court whose term of office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected." The relator was elected several times a justice of the Supreme Court, the last time in 1875, and his term under that election commenced January 1, 1876. He attained the age of seventy years in 1887, and his term ceased by limitation of age, January 1, 1888, two years prior to the expiration of his elective term. His compensation was continued during the two years by force of the constitutional amendment of 1880, and the point in controversy is as to the meaning of the term "compensation," used in that amendment; that is to say, whether it embraces simply the stated salary of a justice of the Supreme Court, of $6,000 a year, fixed by section 9, chapter 408 of the Laws of 1870, or includes also the sum of $1,200 a year, specified in chapter 541 of the Laws of 1872. The act (Chap. 408 of the Laws of 1870) is the original act which fixed the compensation of justices of the Supreme Court, elected under the constitutional amendment of 1869. The material part of the ninth section is as follows: "The justices of the Supreme Court shall receive an annual compensation of six thousand dollars each, payable quarterly, in lieu of all other compensation, except that they shall receive, in addition to such stated salaries, a perdiem allowance of *Page 313 five dollars per day for their reasonable expenses when absent from their homes and engaged in holding any General or Special Term, Circuit Court or Court of Oyer and Terminer, or in attending any convention as hereinafter provided, to revise the rules of said court. * * * But this section shall not be construed to diminish the compensation now received by the justices of the Supreme Court of the first and second judicial districts."
The general appropriation bill of 1872 contains the following provision: "The justices of the Supreme Court, for salaries and expenses, pursuant to chapter four hundred and eight of the Laws of eighteen hundred and seventy, two hundred and thirty-seven thousand six hundred dollars. The said justices of the Supreme Court, except in the first judicial district, shall each receive the sum of twelve hundred dollars annually, from the first day of January, eighteen hundred and seventy-two, in lieu of and in full of all expenses now allowed by law. This subdivision shall not increase the pay of any judge, except the justices of the Supreme Court." It will be noticed that the appropriation purports to be made for salaries and expenses, pursuant to chapter 408 of the Laws of 1870. The fourteenth section of the judiciary article of the Constitution of 1869 prescribes that the judges and justices mentioned in the prior sections "shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms."
It will contribute to an easier comprehension of the question presented, viz., whether the $1,200 a year given by the appropriation act of 1872 to the justices of the Supreme Court is a part of their compensation, within the meaning of the constitutional amendment of 1880, to regard that amendment as if it had been incorporated in the original section. That section would then have abridged the elective term of judges who attained seventy years of age, before its natural expiration, but have continued their compensation during the period cut off by the limitation of age. The question would *Page 314 be precisely the same as it now is. There could be no doubt, I think, that if chapter 408 of the Laws of 1870, had continued in force and had not been changed by the act of 1872, the relator would only be entitled to the stated salary of $6,000 a year, and that it could not be claimed that the per diem of five dollars a day, given to judges for reasonable expenses when absent from home on official duty, would be any part of the compensation continued for the remainder of his elective term by force of the constitutional amendment. He could, during such period, incur no expenses as judge, as he could discharge no official duties. Some stress is laid on the word except in the act of 1870, following the words "in lieu of all other compensation," as indicating that the per diem was also treated by the legislature as compensation. The per diem was given as an indemnity for expenses, and the use of the word "except" may be inexact, but the statute has, I think, the same meaning as if the legislature had said, "but they shall receive, in addition to such stated salaries, a per diem allowance of five dollars per day," etc. The legislature may alter and diminish the salary of an officer during his term, unless restrained by a constitutional provision, and, I think, it would have been competent for the legislature to have repealed the per diem clause in the statute of 1870, and deprive a judge thereafter of any allowance for expenses, without infringing the constitutional mandate that the compensation of a judge shall not be diminished during his official term. It was not compensation for services within the meaning of that clause.
The act of 1872 merely substituted a fixed annual allowance of $1,200 to each justice of the Supreme Court, except justices in the first district, "in lieu of and in full of all expenses now allowed by law," that is, allowed by the law of 1870, which was the only law upon the subject. It changed the law of 1870 in two respects; the allowance was not made to depend, as in the law of 1870, upon actual employment in official duty away from the home of the officer, and it was fixed at an annual gross sum. The legislature *Page 315 assumed that each judge would incur expenses for which he should be indemnified, and it substituted a fixed sum to be allowed to each judge therefor. It might not produce exact equality, but it relieved judges from the annoyance of keeping an account with the state of items, as was requisite under the act of 1870. But the allowance under the act of 1872, as under the prior act, was distinctly for expenses. The appropriation was for "salaries and expenses." The sum of $1,200 was given, not as salary or as compensation for services, but "in lieu of and in full of expenses" allowed under the act of 1870, that is, in lieu of theper diem allowed by that act for expenses, there was given for expenses the sum of $1,200 annually. It is to be observed, also, that the change made by the act of 1872 only applied to justices of the Supreme Court outside of the first district. The statute of 1870 remained in force as to the justices in that district, and their expenses are still to be ascertained and allowed under the circumstances and in the manner pointed out by the statute.
It is said that the clause in the act of 1872, "this subdivision shall not increase the pay of any judge, except justices of the Supreme Court," implies that the annual allowance of $1,200 was compensation. The purpose of this clause seems to have been to preclude any claim on the part of the judges of other courts in cities, who might be assigned to sit in the Supreme Court, that they were de facto judges of that court while so engaged and were, therefore, entitled to the allowance. Their pay was not to be increased, that is to say, they were not to be paid their expenses under the act of 1872. The exception in the first clause was confined to justices of the Supreme Court in the first district. Judges of the City Courts sitting in the Supreme Court are not justices of the Supreme Court, and the last clause was intended to make it clear that they were not to have the benefit of the act.
The argument that as a judge after seventy can render no service, and yet is entitled to his salary, there is no incongruity in allowing him to claim after that time the sum allowed him for expenses while he was on the bench, although he is in no *Page 316 situation to incur them, is specious, but not, I think, sound. The compensation of a judge is continued after seventy, during the term for which he was elected, provided he had served for ten years, as an indemnity for being deprived of the opportunity to earn his salary, although in many, and probably in by far the greater number of cases, he would be fully competent to discharge his judicial duties to the end of his elected term. But because, by express constitutional provision, his compensation is continued although he can render no service, this seems to furnish but little ground for holding that an allowance made during his actual service, for disbursements and expenses, should be continued under the name of compensation, when the possibility of their being incurred has wholly ceased. The construction for which the relator contends would practically make the compensation of a judge who had retired by limitation of age greater than that of a judge in actual service, since the former would incur no expenses, while the latter would be subjected to them. I think it would be torturing language to so enlarge the natural meaning of the word "compensation," used in the Constitution, so as to make it embrace the allowance made for expenses in the act of 1872.
All concur with GRAY, J., except ANDREWS, J., who reads for affirmance, and DANFORTH, J., not voting.
Ordered accordingly.