(dissenting). The act in question in substance provides that in all counties not embracing a city of the first and second class, the circuit judges of the state shall hold the courts when the regular judge is absent or for any reason cannot properly preside, and provides that they shall receive an annual salary of $1,200 a year, payable monthly out of the treasury for their services in holding the courts outside of their districts. Section 235 of the Constitution provides that the salaries of public officers shall not be changed during the term for which they were elected. The present act was passed after the election of the circuit judges now in office in the state; and the question before .us is: Can the Legislature thus add $1,200 a year to their salaries during the term for which they were elected?
*234The provision of the Constitution that the salaries c.f officers shall not be changed during the term for which they are elected is mandatory. Although the Legislature may take from the officer half or all of the duties required of him by law at the time of his election, he is entitled to his full salary as fixed when he was elected; and although the Legislature may add to the duties of the office, however onerous the additional duties may be, the compensation of the officer cannot be changed during the term for which he was elected. The rule applies equally where by subsequent legislation additional duties are imposed on the officer as where by subsequent legislation he is relieved of the duties imposed upon him when elected, the purpose of the constitutional provision being to make the officer independent of the Legislature and to prevent appeals by officers to the Legislature to increase their salaries during the term for which they were elected. If the constitutional provision may be evaded by an act imposing additional duties on an officer and giving him additional compensation the purpose of the provision would be entirely defeated, for such a construction would open the door for the very evils it was designed to prevent.
The act in question simply imposes upon the circuit judges of the state an additional duty, and an attempt is made to evade the constitutional provision by providing that they shall have $1,200 a year for discharging these additional duties. Section 136 of the Constitution provides: ‘ ‘ The General Assembly shall provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside.” The same provision, verbatim,'was contained in the Constitution of 1850. See section 28, art. 4. Under that Constitution, by an *235act approved February 16, 1858, it was provided as i ollows:
“See. 2. "When the defendant in a criminal prosecution makes and files with the clerk such an affidavit, as in the first section named, and the substitute ;judge theretofore or then chosen, to preside at his trial in lieu of the circuit judge, as now provided by law, from any cause cannot or fails to act as such, or no such election takes place, the case may be continued, and the clerk of the court. shall enter the fact and cause of continuance on the record, and certify a copy of the entry to the governor of this commonwealth, who shall forthwith assign some other circuit judge to hold a special term of said circuit court as soon as possible — the time thereof to be fixed by such appointee — for the trial of the accused.
“Sec. 3. When the judge of a circuit court, in which a criminal prosecution is pending is so situated in respect to the case as in his opinion to render it unfit that he should preside at the trial, the same proceedings may be had as required in the second section hereof.” See 1 Stanton’s Rev. St. p. 234.
This provision was brought over into the General Statutes adopted in 1873, in these words: “Sec. 10. If the defendant make and file an affidavit supported as aforesaid, taking the same exception to a special judge, or a judge cannot be procured by election, the clerk shall forthwith certify the facts to the Governor of this commonwealth, and he shall commission some circuit judge of another circuit to attend and preside in said court, on a day to be fixed by the Governor to try said criminal or penal prosecution.” See Gen. St. 2873, p. 187.
*236The General Assembly also, by an act approved March 9, 1888 (Laws 1887-88, c. 483) provided as follows:
“Sec. 1. If at any term of a circuit court the presiding judge thereof shall be absent, or, if in attendance, cannot properly preside in any cause for trial at such term, or if the bar shall decline or fail to elect a special judge or shall so request, it shall be lawful for any other circuit judge of this commonwealth to attend and hold such term of the court, and while so engaged he shall have and exercise all the powers and authority of the regular judge of said court.
“Sec. 2. Nothing in this act shall entitle a circuit judge so holding court in another district to any compensation in addition to his anual salary.”
• The act of February 16, 1858, was upheld in Baber v. Commonwealth, 10 Bush 592. The act of 1873 was upheld in Kennedy v. Commonwealth, 78 Ky. 447. The act of 1888 was upheld in Hughes v. Commonwealth, 89 Ky. 227, 12 S. W. 269, 11 Ky. Law Rep. 424. The court, after pointing out the previous legislation under the same constitutional provision which we now have, said: ‘ ‘ But the Législature may, in its discretion, adopt any other mode of holding circuit courts upon either of the two contingencies mentioned, and provision for the judge of another district to hold the court in such cases is just as clearly within the meaning and intendment of the Constitution as the selection of a special judge by attorneys, for the Legislature is not restricted to any specific mode of accomplishing the object.”
It is true, the acts have not been in force-since the adoption of the Kentucky Statutes, but what scheme should be adopted for the holding of the-courts was entirely a matter of legislative discretion. Since the *237act of 1902 (Acts 1902, c 81), the Governor has been empowered to appoint an attorney having the qualifications of a circuit judge to act as special judge, but the Legislature might in its discretion have authorized the Governor, as it had done before, simply to send one of the circuit judges of the state to hold the court. This clearly follows from the opinions above referred to, and the constitutional provision which gives the Legislature the discretion of selecting its own means for the holding of the circuit courts when the regular judge can not preside. If the acts above referred to had continued in force until the act in question was passed, could it be contended that this act does not change the compensation of the circuit judges during the term for which they were elected? But the fact that the acts were not in force when this act was passed.is wholly immaterial. The Legislature, under the Constitution, has full power to regulate the duties of the circuit judges, and the fact that it has imposed on the circuit judges additional duties, does not warrant a change in their salaries during the term for which they were elected. To illustrate: Suppose this act had been passed before the election of these judges, and after their election the Legislature had provided as in the act of 1888, that they should receive no compensation for acting as special judge; would it be maintained that their compensation had not been changed during .the term for which they were elected? If the Legislature could not, after their election, repeal this act so as to relieve them of the duties imposed by it, and deprive them of the salary given by it, how can it be maintained that after their election the additional compensation can be conferred upon them without violating the constitutional provision? If other circuit judges shall be *238elected while the act is in force, and the Legislature should then repeal it, would its repeal affect the judges so elected and deprive them of the $1,200 yearly salary attached to their office at the time they were elected? In Thomas v. Hager, 120 Ky. 428, 86 S. W. 969, 27 Ky. Law Rep. 813, the court had this question before it: A statute was passed providing that magistrates holding examining courts should receive no compensation for their services unless the defendant was indicted by the grand jury. The act was held invalid as to officers elected before it was passed on the ground that their compensation could not be (.-hanged after their election. On the other hand, in Bright v. Stone, 43 S. W. 207, 20 Ky. Law Rep. 817, and Commonwealth v. Carter, 55 S. W. 701, 21 Ky. Law Rep. 1509, it was held that an act allowing the circuit'clerks pay for services for which no compensation was given when they were elected was invalid under the constitutional provision.
In holding the courts outside of their districts under the act, the circuit judges are simply discharging the duties imposed upon them by law. The act applies to the office. The person filling the office gets his authority by virtue of his office. The duty of holding the circuit courts outside of his district comes wholly from the act. If this were not so, there would be no obligation upon any circuit judge to serve as special judge outside of his district. The duty of a circuit judge under the act to hold a court outside of his district when directed by the Governor to do so, stands on precisely the same plane as his duty to hold the courts in his district; both are duties required by law. That an officer performing services outside of the duties of his office may receive compensation therefor is admitted. This is all that was decided in *239Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696, 32 Ky. Law Rep. 897, or Flowers v. Logan County, 127 S. W. 512. The case of Converse v. United States, 21 How. 463, 16 L. Ed. 192, is simply to the same effect, and decides nothing more. This is not the case of an officer performing services unofficially in his private capacity. Here is an act imposing additional duties on an officer and allowing him additional compensation without regard to the amount of service he may render, and although he may in fact render no service as required by the act. If he renders any service, he renders it under the act. It is simply an additional duty imposed on the office, and this court has twice decided that the fact that additional duties have been imposed, does not warrant a change of the officer’s compensation during his term of office. Jefferson County v. Waters, 114 Ky. 48, 70 S. W. 40, 24 Ky. Law Rep. 816; Board of Education v. Moore, 114 Ky. 640, 71 S. W. 621, 24 Ky. Law Rep. 1478. It is true, the circuit judges were not required to perform these services when they took the office, but they took it subject to such changes as the Legislature might make in its duties. Their duties may be changed, but-their salary cannot be changed during their terms. The circuit judge who fails to discharge his duties as required by this act will be guilty of a misfeasance in office.
The opinion of the court rests on the ground that the holding of special terms outside of their districts is not a duty which the Legislature may impose on circuit judges; that their authority is limited by the Constitution to their districts. But the Constitution contains no such provision. Its only provision as to the jurisdiction of a circuit judge is section 126, which is as follows: “The jurisdiction of said court shall be *240and remain as now established, hereby giving to the General Assembly the power to change it.”
In Kennedy v. Commonwealth, 78 Ky. 453, the court, disposing of the very objection on which the opinion here is rested — that the circuit judge’s authority is by the Constitution limited to his district— said: “The Constitution requires the General Assembly to provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside. Section 28, art. 4. The manner of providing for the contingency here contemplated is left wholly to the discretion of the General Assembly, provided no other provision of the Constitution be violated. That instrument requires a circuit judge to be elected in each district, and provides that no one shall be eligible to the office who has not resided in the district two years. But these provisions apply to the regular judges, and do not apply to special judges; nor is there anything in the Constitution which forbids the Legislature, in executing the constitutional mandate, to provide for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside, from directing the Governor to commission a judge of another circuit to attend and preside in a particular cause.” To the same effect is Mengel Box Factory v. Jackson, 94 Ky. 472, 22 S. W. 854, 15 Ky. Law Rep. 289, decided under the present Constitution.
The opinion of the court 'is not only in the teeth of four well-considered previous opinions of the court, but in the face of the fact that this legislation, in one form or another, has been in force since the year 1858, under the same constitutional provisions we now have. When the Constitutional Convention in *2411891 readopted them, it did so with the knowledge of the construction they had received; and when they readopted them in the same words, under the well-established rule of construction, they must be held to have adopted them in the sense they then had. Not only so, but hundreds of men have been convicted and punished in courts held by circuit judges under these acts. It was the more usual way of holding circuit courts in important criminal cases where the regular judge could not properly preside prior to the enactment of the Kentucky Statutes. The salaries of the circuit judges may be inadequate. It may be they should be better paid, but the court is bound by the law, no less than inferior tribunals. It cannot ignore its own decisions, when the Constitution has been re-adopted in the same words in view of the construction the court had placed upon it. The court is in error when it says “the duties of special judge have never been discharged by regular circuit judges.” It has been done in courts having more than one judge under the present Constitution. Under the former Constitution, containing precisely the same provisions, the duty was discharged by all the circuit judges. This error of fact is the foundation of the opinion. The act confers on appellees no new office. A special circuit judge is simply a circuit judge for the time. Appellees are circuit judges under the act just as they were before. The act only requires them to exercise their functions outside of their districts under certain conditions.
It is conceded in the opinion that the Legislature may add a county or counties to a circuit judge’s district, and that the Legislature may not for this in*242crease Ms salary; but what is the difference between requiring a circuit judge to hold three courts a year in two counties not originally in his district, and requiring him to hold special terms in these or other counties outside of his district? When circuit judges shall be elected while this act is in force, they will be entitled to a salary of $4,200 a year — $3,000 for holding the courts in their districts, and $1,200 for holding the courts outside of them. The $1,200 a year will be one of the perquisites of the office, and can mo more be taken from them during their terms by legislative action than the $3,000 allowed for bolding courts in the district. The opinion rests solely on the ground that the holding- of special terms was not within the jurisdiction of circuit judges before the act was passed. But the Legislature regulated their jurisdiction. And may not the power that created, change their jurisdiction? A mere change in their jurisdiction will not warrant a change in their salary during the terms for which they were elected. The Legislature, when it defined their jurisdiction, might have imposed on them the duty of holding other courts when the regular judge was absent or could not properly preside. It in fact did so in the case of the courts having ‘more than one judge, and this was held valid in Mengel Box Factory v. Jackson, 94 Ky. 472, 22 S. W. 854, 15 Ky. Law Rep. 289. Manifestly, what the Legislature did then as. to one class of counties, it could have provided as to all other counties, as it had done before, if it had seen fit. And what it could have done in the first instance, is not of a different character when done now; it is simply the exercise of a legislative power to define the duties of an office.
*243The opinion of the court rests on the ground that the circuit judges, in holding the special terms, are acting outside of their duties. It fails to distinguish between a duty not required by law and one that is required by law when the service is rendered, but was not required by law when the officer was elected. What the Legislature might have done at the beginning in defining the duties of the office, it may do afterwards. Having authority under the constitution, as has been expressly decided, to impose these duties on the circuit judges, its exercise of its constitutional authority is no ground for a change in their salary, during their terms, a thing which by the Constitution is forbidden. To say otherwise is to say that whenever an officer’s duties are increased or diminished, his salary may be changed, which would be to give the constitutional provision no practical effect. Section 133 of the Constitution provides that the compensation of circuit judges shall be “equal and uniform throughout the State.” Section 59 also provides: “The General Assembly shall not pass local or special acts * * * to regulate the jurisdiction, or the. practice, or the circuits of the courts of justice * * * or compensation of the officers thereof.” Hnder these provisions the Legislature has no power to provide that certain circuit judges shall receive out of the state treasury a salary of $4,200 a year, while others receive only $3,000. We have often held invalid acts giving officers in certain counties a greater compensation than allowed the same officers in other parts of the state. The same principle must be applied in the case of the circuit judges. In the opinion of the court its conclusion seems to be rested on the idea that the act creates the office of special circuit judge, and confers it upon certain circuit *244judges of the state. But all ground for this position is taken away when it is shown that these are duties which the Legislature might in the first instance have imposed on them. The act does not purport to create a new office; for if that were the case the judges would be entitled to the salary of $1,200 a year only from the time they accept the office and qualify; but under the act each of them is entitled to the additional compensation from the time it takes effect, although he may never be commissioned or act as special judge. It is, therefore, apparent, that the additional compensation is given to them as circuit judges. The rights of each of appellees under the act depend on his being circuit judge. If he ceases to be circuit judge, he cannot act as special judge. His powers under the act are only incidents of the office of circuit judge and have no separate existence.
The constitutional provision is worth nothing if it may be evaded. It is the duty of the courts to condemn evasions of the Constitution no less than open violation of its provisions. The act in question is a palpable evasion of the constitutional provisions. Its plain purpose was to increase the salaries of the circuit judges $1,200 a year during the term for which ■they were elected. They get the $1,200 although they do not hold a single court outside of their district during the year. If the purpose of the act has been simply to provide for the holding of the special terms of court, it would seem that it would have made the additional pay of the circuit judges to depend on the amount of extra work which they did, and no explanation can be given for giving each circuit judge an additional salary of $1,200 a year regardless of the work he may do, unless it was the purpose of the act to increase the salaries of the circuit judges during the *245term for which, they were elected. It is earnestly insisted that the cases in which it has been held that justices of the peace when acting as committees of the fiscal court may receive $3 a day for their services, although they were elected before the act allowing this compensation was passed, cannot be distinguished from this case. But the difference is very palpable. When a magistrate acts as committee of the fiscal court, he is not acting as a justice of the peace, or discharging any duty imposed on that office. Any private person may be a committee of a fiscal court. A private person cannot hold a circuit court. -When holding a circuit court outside of his district, under the act in question, the circuit judge is discharging a duty imposed upon him by law. No duty is imposed by law on magistrates to act as committees of the fiscal court. The act allowing the committees of the fiscal court to receive pay at $3 a day, imposes no new duty on magistrates; it simply removes to this extent a statutory restriction forbidding members of the fiscal court from contracting with each other. If a private person acts as a committee of a fiscal court he can receive any compensation agreed on between him and the fiscal court; but a member of the court can receive only $3 a day. That act does not touch the office nor the officer. It would be similar to the act before us if the Legislature had provided that nobody but the magistrates should act as committees of the fiscal court, and that the magistrates should receive $3 a day for their services. If it had so provided it would have made the right to act on the committee to dej^end upon the office, and the officer in acting on the committee would have been discharging a duty imposed upon him by law. That is this case.
*246This court has in. a long series of opinions' upheld the constitutional provision, and has set its face against all efforts to evade it. It is very unfortunate that now a method is sustained by which in future this provision of the Constitution may be in all cases evaded; for in every case it may be provided by law that the officer in another name shall do certain things not before required of him, and for these things shall receive such compensation as the Legislature may be pleased to bestow out of the public treasury. If such is to be the fate' of the constitutional provision, it will be far simpler and better to blot it out; for to tolerate evasions of it is but to blunt the public conscience, and tó open the door for other attacks upon that instrument which is the foundation of' our governmeiit.
I therefore dissent from the opinion of the court.
O'Bear., J., concurs in this dissent.