The Constitution of this state (Sec. 13, art. 6) provides that: "The official terms of the said justices and judges, who shall be elected after the adoption of this article, shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age. 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 first elected a justice of the Supreme Court in November, 1865, for a term of eight years commencing on the 1st day of January, 1866. In November, 1873, while still serving as such justice, he was re-elected. His term would have been fourteen years, ending December 31, 1887, but for the fact that he reached the age of seventy years in June, 1882, and by reason of the above provision of the Constitution his term of office was abridged, and it ended on the 31st of December, 1882. On the last-named date the relator had served seventeen successive years as a justice of the Supreme Court. *Page 488
The question to be determined is whether the ten years of service mentioned in the Constitution must be ten years of the term which is abridged by the judge or justice becoming seventy years of age.
The language of the Constitution does not say so. No such condition is in terms expressed therein.
The two conditions mentioned are that the term of office of the judge or justice shall be abridged by reason of arriving at the age of seventy years, and that he shall have served as such judge or justice ten years or more. The words "as such judge or justice" clearly relate to a judge of the Court of Appeals or a justice of the Supreme Court.
As the condition is not expressed in the instrument, why should it be implied?
The learned attorney-general argues that such was the real intention, and when that intention is ascertained, it must and should prevail over the strict letter of the law when the latter would lead to probable injustice, contradiction or absurdity.
It may be assumed that if such were the real intention it should prevail over the strict letter of the provision. I do not see, however, where the foundation is for the assertion that it was the real intention to limit the ten years of service to the term abridged, and that, therefore, it should be so construed. The opposite construction leads neither to palpable injustice, contradiction or absurdity. Whether the ten years of service has been divided by entrance upon a new term of office as such judge or justice, does not in the abstract seem to be very material. Clearly the idea of a somewhat prolonged service on the bench lies at the foundation of the provision and furnishes a plain argument for its adoption. It is the length of service and not the mere fact that the ten years have been served in the last term of office that in the nature of things would be deemed of material weight. And when to this length of service as such judge or justice is added the fact that the term of his holding the office is abridged by reason of age, the law then says that such judge or justice is entitled to compensation for the balance of the term for which he was elected. *Page 489
It is true that judges or justices of these courts might possibly hold their offices for a number of years long past ten, and yet go out of office by expiration of their terms of office and not on account of age, and under such circumstances they would not be entitled to any compensation. But I see nothing in that fact which is of the slightest force as an argument one way or the other upon the point in question. It only shows that there may be cases of great length of service as a judge or justice of these courts without any claim to compensation after the expiration of the regular term of office. If the term expire by reason of the running of the full term of fourteen years before the judge or justice reaches the age of seventy, and he thereupon goes out of office, the provision of the Constitution does not meet his case. His term has not been abridged although he may have been twenty, thirty, or even more years on the bench, and he has already received compensation for the full term for which he was elected. This only proves that the constitutional provision fails to meet a deserving case. If the construction of the appellant were adopted, the same force to the facts urged could be given. We would still have the case of one who had acted as a judge or justice of one of these courts for many years, but whose term finally expired by efflux of time before he reached the age of seventy years, and who would not be entitled to any further compensation, while the individual who had served but ten years as a judge or justice, and whose first and only term was abridged by reason of his age, would be entitled to compensation for the balance of the term for which he was elected. In the latter case such compensation could not reach over a period of more than four years, while under our construction it might last a few years longer. That one fact is not enough to cause us to import words into the Constitution which are not there, for the purpose of altering the meaning of that instrument as it actually reads. It seems to me that even greater care and caution should be used in adding or striking out words from a provision in our organic law, on the ground that it is necessary in order to obtain the true meaning of such provision, than if such provision *Page 490 were contained in a statute, because the fundamental law of the state is presumed to be and indeed is prepared with the very greatest deliberation and adopted only after every opportunity for reflection upon the meaning of each word has been had by different legislatures and by the people at large. To construe the provision as the appellant claims it should be construed, is to add words which are not there now and which when thus added, alter materially the meaning of the provision.
Again it is urged that by our construction one may be elected a judge or a justice of either of these courts, serve out his term of office, go off the bench, and then years after be re-elected just before he arrives at the age of seventy years, and then be entitled to his compensation.
Extreme cases which might by possibility arise, furnish very unsatisfactory grounds from which to argue the correctness or incorrectness of any particular construction of a constitutional or statutory nature. This supposed contingency is one which in the nature of things would rarely if ever happen. Persons are not elected to the responsible office of judge of the Court of Appeals or justice of the Supreme Court in their early youth. The rule is and has been to elect those who have served some time at the bar, and they go on the bench generally as mature men. Fourteen years added to their lives will place them in the ranks at least of the middle-aged. To re-elect them is perhaps not unnatural. It certainly is frequent. It is not customary, however, to drop them and leave them to the contingencies of life, and subsequently re-elect them as judges or justices just before their arrival at seventy years. To escape such a remote contingency, unheard of, improbable and almost impossible, we are asked to formally supply words to a constitutional provision which shall alter its otherwise plain meaning.
Then again this whole question is one for the people themselves to decide. If they do not think that an individual, who will have but a very brief portion of his official term to serve because of age, ought to have the compensation provided for such an officer after reaching seventy years, they have the power to refuse to elect him, and that will prevent any question *Page 491 arising regarding compensation. There is nothing in the nature of the provision which should lead us to seek to limit and belittle it as a temporary provision made by the Constitution for the judges and justices of the courts mentioned, after they are relieved from active duties on the bench and denied further service by reason of advancing age.
The Federal Supreme Court judges are allowed to resign after ten years of service and the attainment of the age of seventy years with full pay for the balance of their lives. The provision made by our Constitution was probably modelled after the federal statute, regard being had to the difference between a life tenure of the judicial office and a tenure bounded by years. The ten years service on the part of the federal judge must have been passed, and he must have arrived at the age of seventy years before he is entitled to retire from active duties and still retain the compensation of a justice of the Supreme Court of the United States. In the case of the state judge, he must have reached the age of seventy, his judicial term must have been abridged by reason of his having arrived at that age, and he must have served ten years as a judge or justice of the courts named. Then, instead of a compensation for life, he is to have it only for the remainder of the term which has been abridged. As long, in other words, as his judicial life would otherwise have lasted but for his arrival at the age mentioned. In effect, therefore, the compensation in both cases, state and federal, is for the balance of the judicial life of the officer.
I see no reason in principle for holding that the ten years of service as such judge or justice should all be taken from the term of office which is abridged by the incumbent arriving at the age of seventy years.
I think the order appealed from should be affirmed, but as the question is new and the defendant a public officer acting undoubtedly in entire good faith, it should be without costs.