dissenting.
I dissent from the opinion of the majority of the court. In my judgment, the acts in question go beyond the boundaries of legislative authority, and have not, and should not have, the force and effect of law.
The constitution of the State contains these provisions :
“ The State shall be divided into convenient judicial districts. Judges of the Circuit Court shall be appointed by the Governor, with the advice and consent of the Senate, and shall hold their office for the term of six years. A Circuit Court shall be held [in each county] at least twice in each year; and the judges of said courts may interchange circuits with each other in such manner as may be prescribed by law. . . .
“ The Legislature shall divide the State into a convenient number of chancery districts. Chancellors shall be appointed in the same manner as the judges of the Circuit Court, . . . and they shall hold their office for the term of four years. They shall hold a court in each county at least twice in each year. . . .
“ All civil officers under this State shall be liable to impeachment for treason, bribery or any high crime or misdemeanor in office. Judgment in such cases shall not extend further than removal from office and disqualification to hold any office of honor, trust or profit under this State. . . . For reasonable ■cause which shall not be sufficient ground for impeachment, the Governor shall, on the joint address of two-thirds of each branch of the Legislature, remove from office the judges of the Supreme and inferior courts; provided the cause or causes of removal be spread on the journal, and the party charged be notified of the same before the vote is finally taken and decided, and shall have an opportuuity to be heard, by himself or counsel, or both.”
The act of the legislature in relation to the judicial districts for Circuit and Chancery Courts, approved March 8,1888, and the act supplemental and amendatory to the same, reduce the number of Circuit and Chancery Court districts in the state, from and after the first of April, 1886, by consolidating some of *426the old districts, and by placing counties composing some of the former districts into other districts, thus enlarging some of the old districts, and abolishing others. In each of the old districts there were a judge and chancellor, duly appointed, qualified and acting, at the time of the passage of these acts, and at the time when they were to go into effect, some of whose terms did not expire for several months and in one instance, not until more than three years afterwards, and by the process of redistricting, several are left without districts, and without any 'official duty being required by the act to be performed by them. Without naming these disfranchised judges and chancellors, other judges and chancellors are expressly assigned by the act to each of the districts formed by the act. The act provides that district attorneys shall continue to the expiration of their terms of office, as district attorneys for the counties constituting the districts to which they were elected; but there is no such provision or any provision in regard to judges and chancellors who are left without districts and official duties. The pay of judges and chancellors is increased by the act in these words: “ There shall be allowed and paid to each judge and chancellor, in monthly payments, a salary of twenty-seven hundred and fifty dollars per annum, ” but it is not provided whether this shall apply to the retired judges and chancellors with the others, or only to those who are assigned to districts and duties.
According to the new arrangement, court occurs at the same time, in two or more counties, which were formerly in the same district, where such counties are distributed among different new districts, so that in one or more districts, the former judge or chancellor of such counties and former districts would not be able to hold the court in the counties of their former districts at the time specified in the acts, if they were to attempt to do so, unless they could overcome the natural impediment, of being in different places, and holding court in different counties, at the same time.
The statement of a few simple principles will aid in the comprehension and solution of the issues involved.
An office is a public charge or employment, and a public officer is one who has some duty to perform concerning the *427public. 7 Bac. Abr., 280; Hill v. Boyland, 40 Miss., 618; Shelby v. Alcorn, 36 Id., 273. The term office embraces the ideas of tenure, duration, emoluments and duties. United States v. Hartwell, 6 Wall., 385 ; Hoke v. Henderson, 25 Am. Dec., 677, and note.
Without argument, and without the citation of authorities, it may be said that there is nothing better settled in this State and in American law, than that when an office is created by statute, it is wholly within the control of the legislature. The term, the duties and the compensation of such an office may be changed, or the office itself may be abolished, at pleasure, without reference to the wishes or interest of the incumbent, if there is no constitutional inhibition against it, and the legislature is the sole judge of the necessity or propriety of doing either.
And it is quite as well settled — it is believed there is no authority to the contrary — that if the term of an office is prescribed by the constitutution, the legislature cannot remove its lawfully elected or appointed incumbent, or abridge his term, either directly or indirectly, except in the manner provided by the constitution. Fant v. Gibbs, 54 Miss., 396 ; People v. Dubois, 23 Ill., 547; State v. Messmore, 14 Wis., 163; Com. v. Gamble, 62 Penn. St., 343 ; Lowe v. Com., 3 Met. (Ky.), 240; Cooley on Con. Lim., *277 and note.
It is incomprehensible to me how this could be doubted in this State, since the decision in Fant v. Gibbs, supra. I stand by Fant v. Gibbs. It seems not to be overruled by the opinion of the majority just read, or, if it is, it is not so declared.
In the light' of these principles it is clear to me, that an attempt by the legislature to remove a judge or chancellor from office, during his constitutional term, by the indirect method of denying him any compensation, or by depriving him entirely of a district and. all the authority and functions of his office, would be as much a violation of the constitution as it would be to declare in express terms that the office was vacant, or that the incumbent should be, and was thereby removed from office. The legislature may enlarge or curtail judicial districts, and increase or diminish judicial duties, provided always, it does not thereby virtually remove existing judges and chancellors by depriving them entirely of districts and duties.
*428The manifest object of the constitution in fixing the term of judicial officers, was to secure to some extent, at least, an independant judiciary — the palladium of private rights and public liberty, wherever there is wisdom and virtue .enough to support it — by placing the tenure of officers in that department, beyond the influence and control of the other departments of the government, and by making its duration dependent, not on the varying and uncertain will of the legislature, but on the constitution itself, which changes not, except by the action of the peoplé in their sovereign capacity.
The constitution-is above and control all the departments-of the government. It is the paramount law, and between the will of the people as expressed in the constitution, and that of the legislature as declared by statute, the former must always prevail.
It seems to me, that a plainer case of attempting to remove judges and chancellors indirectly, or in a mode different from, that provided in the constitution, for such purpose, than is furnished by the acts of the legislature in question, cannot well be conceived. After being entirely ignored by these acts, and stripped of districts and official duties and authority, what more could be done to deprive them of their offices ?
The express retention of the district attorneys in service by the acts, till their terms expire, without any such provision as to the omitted judges and chancellors, excludes the idea that the latter were to be continued in services. The doctrine of the maxim expressio unius, exclusio alterius, applies. It is impossible to avoid it. The assignment of certain judges and chancellors to each of the new districts, implies and means that they shall hold the courts in such districts, and nothing being said or required of the other judges and chancellors, implies and means, that no official duty is imposed on them, or expected of them. If the legislature intended that they should toil not, how can this court say nay, and subject them to the burdens of labor, if the acts of the legislature are sustained ? Which is to govern, the constitution, the legislature, or this court ?
These acts of the legislature are unconstitutional and void, and are, as if they were not, in so far as they attempt to remove *429or retire a part of the judges aud chancellors of the state from office before the expiration of their terms, and the question is' then presented, does this render the whole of the acts inoperative and of no effect ?■
In my judgment, it does.
A statute may be unconstitutional, either because it proposes to accomplish something prohibited by the constitution, or to accomplish some lawful and even laudable object, by means repugnant to the constitution. It is an elementary principle that the same statute may be in part constitutional and in part not constitutional, and that if such parts are wholly independent of each other, that which is constitutional may stand, while that which is not constitutional must fall.
Judge Cooley, states the rule thus: That “ when a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning, that it cannot be presumed that the legislature would have passed the one without the other. If, when the unconstitutional portion is striken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, or if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.” Cooley on Con. Lim., * 118, 119. Striking from the statute what is obnoxious to the constitution, the same author says again, if “ that which is left is complete in itself, sensible, and capable of being executed, wholly independent of that which is rejected, it must be sustained.” Cooley on Con. Lim., * 149.
Substantially, the same rules are recognized and approved in Fant v. Gibbs, supra. In that case Judge Chalmers said, *430“ while it is true that one portion of a law may be upheld while the rest is overthrown; this is only true where they are so far independent provisions, that it may be presumed that the legislature intended one to subsist, even though the balance perished. The principle is that where a particular clause of a statute is manifestly based upon certain other clauses which are pronounced unconstitutional, it will fall with them, though itself not obnoxious to constitutional objections.”
Every doubt must be resolved and every presumption must be made in favor of the validity of an act of the legislature; but where a part of an act is inoperative on account of being unconstitutional, a different rule prevails in regard to the remainder of the act. “It is obvious,” says Judge Cooley, “in any case where part of an act is set aside as unconstitutional, that it is unsafe to indulge in the s.ame extreme presumptions in support of the remainder, that are allowable in favor of a complete act; when some cause of invalidity is suggested to the whole of it. In the latter case, we know the legislature designed the whole to have effect, and we should sustain it if possible ; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained, if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While therefore, in one case, the act should be sustained unless the invalidity is clear; in the other, the whole, should fall, unless it is manifest that the portion not opposed to the constitution can stand by itself, and that in the legislative intent it was not to be contolled or modified in its construction and effect, b\>" the part which was void.” Cooley on Con. Lim., * 119, and note.
Now applying these rules and tests to the acts in question, it is readily seen that the removal of judges and chancellors before their terms expired, and redistricting the state, and increasing salaries, and changing the time for holding courts, and assigning judges and chancellors to new districts, are all parts of a common design, not wholly independent of each other, but based upon each other, and mutually connected with and dependent on each other, as conditions, considerations, inducements and compensations for each other, and operating together *431for the same purpose, and that neither is complete in itself, sensible and capable of being executed, without the rest. I cannot presume that the legislature would have passed one part of these acts without the other, or that it intended that some parts of them should stand, though another vital part should fall. I know that the legislature designed that the whole should have effect. I do not know that it intended that only a part should have effect, or that the acts should take effect and operate in any other manner than that prescribed upon their faces, And if the acts are put into operation at all, it seems to me. that it will be questionable whether they are the acts of the legislature or of this court. It is plain to me, that the legislature contemplated that the acts should operate as a whole, and that they should take effect in all their parts at the time and in the manner specified in the acts, and not otherwise; and that there would have been no such redistricting, and increasing salaries, and changing the times for holding courts, and assigning judges and chancellors as provided for in the acts, if it had been supposed that judges and chancellors sought to be placed in a condition of salaried repose, would be judges and chancellors, with duties to perform, to the end of their terms, notwithstanding the acts.
The doubts that may exist as to when and for whom salaries are to be increased, if the emeritus judges and chancellors continue to act to the close of their terms ; the uncertainty which must arise under the same circumstances, as to which judge or chancellor in some districts shall hold court, and as to whether some of the courts can or will be held for months and years in some of the counties, in one or more of the new districts, at the times designated in the acts, and the fact that the scheme would have operated without friction or confusion, if judges and chancellors could have been retired in the manner attempted, all proper to be considerd under the circumstances, to ascertain the legislative intent, are persuasive that the legislature would not have passed the acts as they exist, unless it intended them to operate as a whole, including the feature that some of the judges and chancellors were removed and put out of the way.
I find in the constitution limitations on the powers of the *432legislature, as well as on the other departments of government,, which are mandatory, hut no provision to save a statute which violates that instrument. There is nothing in the constitution which cures or removes the defects, or which enable any court to supply the essential qualities of an act of the legislature when it is in violation of the constitution. I was not so brought up at the feet of the Gamaliels, nor so taught according to the perfect manner of the law of the fathers, as to be able to believe that any court in this land has power and authority to do any such thing. In this, as in every other case of the construction of statutes and constitutions, I regard it rather as the province-of courts to ascertain, if possible, from the whole and every part of the instruments considered together, the meaning and intention of the law-makers, and to be guided and governed by them, whether they lead to the maintainance of such instruments or to their overthrow.
But there is another view, from which these acts cannot, in my judgment, be put into operation, without violating the constitution. After it is determined that judges and chancellors cannot be ousted from office in the manner provided by the acts, (and the opinion of the majority of the court holds that they are still judges and chancellors), if the acts are then maintained, it must result, that there are, and must be, for some time to come, two circuit judges aud two chancellors in each, of several of the new judicial districts, and while all of them will be entitled to their salaries, only one half of them, to wit, those-assigned by the acts to the new districts, will be required by law to perform the duties of the office.
I deny the authority of the legislature to create two judges- and two chancellors, in the same district, in this manner, or to expend the public money to pay salaries to judges and chancellors who are such merely in name, and of whom no official duty is required. It is against the spirit, the theory, and the purpose-of the constitution, and' of our institutions. The constitution requires that judges and chancellors shall be appointed, to hold court, and to perform the gravest, the most important, and the most arduous of all public duties. The law requires that they shall be paid, because the laborer is worthy of his hire. Judges *433and chancellors are, ex vi termini, public officers; but a judge or chancellor, without a court, and without a district, and without official functions to perform, cannot be brought within any legal definition of a public officer. He is to all intents and purposes a private citizen, with the rank and pay of a judicial functionary., T oleration of such legislation may not be detrimental to the public welfare in the present instance, but it will be a precedent which,, in the changes of men and parties, may be invoked at pleasure, to depose any judge or chancellor, or to subvert the judicial system of the state as organized under the constitution, and even-to establish a system of judicial pensions and bounties. And the precedent will be the more dangerous, because it holds out-to judges and chancellors who may be in the way of others, the temptation of the state continuing to pay their salaries, if they will consent to accept it, and retire from office, and do nothing,, and say nothing about it.