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179. Qualifications of Supreme Judges.

considerable legislative discretion is allowed in altering the original number. The work of the courts sometimes accumulates to such an extent that cases must wait many months, or even years, for a hearing. To avoid the inconvenience of such a state of affairs a few constitutions provide for special courts or an increase in the number of judges until the bulk of the awaiting cases may be disposed of. Thus in New York," whenever a majority of the judges certify to the governor that the court is unable, from accumulation of cases, to hear and dispose of them within a reasonable time, the governor must designate not more than four judges of the general trial court to serve as associate judges of the highest court, until undisposed cases are reduced to two hundred. In South Carolina,' under certain circumstances, the judges of the general trial court may be called to the assistance of the supreme judges-for example, whenever, upon hearing of any cause or question, it shall appear to the judges, or any three (majority) of them, that there is involved a question of constitutional law, upon determination of which the entire court is not agreed.

Twenty-one states lay down specific age requirements for supreme judges, varying from twenty-five to thirty-five years. Citizenship and residence qualifications are frequently specified. One state2 requires supreme judges to be of good moral character. Ten states require them to be learned in the law, and seventeen1 to have been admitted to the practice of law or to have served as a judge of some court.5

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1e. g., Ark.. VII, 6; Ind., VII, 3; Tenn., VI, 3. Wis. specifically requires judge to be qualified elector within district for which chosen (VII, 10).

Ark., VII, 6.

se. g., La., 86.

4e. g., N. Y., VI, 20.

La., 86.-Admission to practice must have been ten years previous to election. In Ky. (114), a supreme judge must have been admitted to practice or served in a court having general nisi prius or similar jurisdiction for a time which added to the time he has practiced amounts to at least eight years.

180.

Terms of

The specified terms of office for supreme judges vary from two to twenty-one years. In Rhode Island' the judges hold Office. their office until it is declared vacant by the legislature. The New Hampshire bill of rights' declares that it is the best policy "that judges of the supreme judicial court should hold their offices so long as they behave well, subject, however, to such limitations on account of age as may be provided." In half the states the term of office ends at different times for different members of the court. Sometimes there are provisions that judges must retire on reaching a certain age.

A supreme judge is, by a few constitutions, prohibited from sitting in specified cases as, for example, where he was a member of the lower court,* counsel in the case, or interested in it," or related to either party. Several states forbid active practice of law by the judges, at least in courts of record in the state.' Four states forbid imposition of non-judicial duties upon the judges. Others, as already observed, especially give them other functions.

The compensation of supreme judges is left largely to the 181. legislature. Salaries, as specified by the constitutions, vary

"Vt., II, 44.

'Pa., V, 2. (Not eligible to reëlection).

Four years: Kan., III, 5. Six years: Fla., V, 2; Ida.. V, 6; Ind., VII, 2; Kan., III, 2; Mont., VIII, 7; Nev., VI, 3; N. M., VI, 12; Okla., VII, 3; Wash., IV, 3. Six years and until successors are elected and qualified: Ariz., VI, 3; Ga., VI, sec. II, 4; Ia., V, 3; Minn., VI, 3; Neb., VI, 4, 5, 20; N. D., IV, 91; S. D., V, 8, 36; Tex., V, 2. Six years and until successors are elected or appointed and qualified: Ala., VI, 155. Six years; may be extended; extension not to affect term for which judges are elected: Utah, VIII, 2, 24. As prescribed by law; not less than six years: Ohio, IV, 2; XVII, 2. Eight years: Ark., VII, 6; N. M., IV, 6; Tenn., VI, 3; Wyo., IV, 4. Eight years and until successors are qualified: Ky., 112; N. C., IV, 21, 25. Nine years: Miss., VI, 149. Nine years to hold until successors qualified: Ill., VI, 6, 32. Ten years: Colo., VI, 6; Mo., VI, 2; Wis., VII, 4. Ten years and until successors are elected and qualified: S. C., V, 2. Twelve years: Cal., VI, 3; La., 86; W. Va., VIII, 2. Fourteen years, N. Y., VI, 7. X, 4.

135.

In Mass. (Pt. II, ch. III, 1) they hold office during good behavior. 2e. g., Ala., Wyo.

Conn., Amend. XII (70 years); La., 86 (75 years; on full pay if service continuous for 15 years previous).

e. g., N. Y., VI, 3.

e. g., Tex., V, 11.

"e. g., Tenn., VI, 11; Utah, VIII, 13.

e. g., N. Y., VI, 20; Va., VI, 105.

N. D., IV 96; Pa., V, 21; Wyo., V, 16, and, with exceptions, La., 96.

e. g., supra, p. 215.

Compensation.

182. Removal.

183. The Chief Justice.

184.

Time and
Place of
Holding
Court.

from $1,5001 to $8,000. Occasionally fees and perquisites are forbidden.3

A few constitutions provide for the removal of judges, under certain restrictions, by the governor, upon address of the legislature or by the legislature itself. The filling of vacancies is provided for by about half of the constitutions-usually appointment by the governor until a successor is elected. There are also numerous provisions for the appointment of special judges to hear particular cases in case of absence, illness or equal division of opinion among the regular judges."

About two-thirds of the constitutions provide for a chief justice of the highest court. In a few he is elected as such;8 in others the court decides which of its members shall be chief justice; in Florida the judges designate one of their number by lot; in Maryland he is chosen from among the members by the governor and senate; in Oklahoma the matter is left to be determined by law; in other states there exist various rules of precedence for example, the judge having the shortest time to serve1 and the judge who has served longest as a member of the court.2

Some of the constitutions contain regulations of the terms of court, for example, that there shall be a certain number of terms each year. About three-fourths of the states make some mention of the place of holding court. Most of them specify that it shall be at the seat of government; though a large number" name other places where the court may or shall also sit,

1Kan., Wis. (not less than $1,500). The salaries actually paid vary from $2,500 (Vt.) to $14,200 to the chief justice and $13,700 to the associate justices (N. Y.).

2Cal.

se. g., Tenn., VI, 7; Wis., VII, 10. Mileage is provided for in W. Va. and prohibited in Mont.

4e. g., Ky., 112.

e. g., N. Y., VI, 11; N. C., IV, 31.

e. g., Ill.. VI, 2, 32; Tex.. V, 28; Wash., IV, 3.

"See, e. g., N. M., VI, 6; Fla., V, 6; Mo., VI. 11.

Ark., VII, 2; Cal., VI, 3; Minn., VI, 2, 3; Mont., VIII, 8; Neb., VI, 5; N. Y., VI, 7.

Ala., Ill., Mo., Okla., S. D., Tenn., Tex.

1Ariz., Pa., Wash., etc.

2See Kan., III, 2; Ky., 118; Nev., VI, 3: Wis., VII, 4. In Del. the principal courts of the state are held by six state judges; when sitting as the Supreme Court the Chancellor, or, in his absence, the Chief Justice, presides. (Art. IV, and amendment approved Mar. 12, 1913.)

Varying from one (La., etc.) to "at least four" (Ida., subject to legislative alteration after six years.)

e g., Ariz., Ark. Several merely say that the place shall be prescribed by law. "Ala., Ida., Ill., Kan., Ky., Md.. Minu., N. C., N. D., O., Ore., S. C., S. D., Tenn., Wash., Wyo.

at least in times of peril." Nine constitutions authorize the highest court, usually at its own option, to sit and hear causes in separate divisions."

Jurisdiction.

The jurisdiction of the highest court is appellate, revisory 185. and original. The appellate jurisdiction is subject to many constitutional limitations. Sometimes the court itself may require particular cases to be brought before it for determination," sometimes certain classes of cases which may be appealed are named in the constitution; sometimes appeals to the highest court are allowed from specified inferior courts.2 Revisory jurisdiction where conferred upon the court extends usually to superintending control over inferior courts,3 and in one or two states, over the proceedings of administrative officers and of commissioners and boards created by law. Original jurisdiction is usually conferred upon the highest court for the issuance of certain writs, as mandamus or quo warranto, and occasionally in suits against the state and other special cases."

Some of the constitutions contain procedural regulations or authorize the highest court to make or amend rules governing procedure. To take a single example, Marylands requires the judges of the Court of Appeals

to make and publish rules and regulations for the prosecution of appeals to said appellate court whereby they shall prescribe the periods within which appeals may be taken, what part or parts of the proceedings in the court below shall constitute the record on appeal and the manner

Ala.. Ky. The time of holding the court is sometimes prescribed,-e. g., Ky., 112; Md., IV, 14.

"Thus in Ga. (IV, sec. II, 8) the court has power to hear and determine cases sitting in a body or in two divisions of three judges, under regulations prescribed by the legislature; the court has power to hear and determine cases in a body or in two divisions: a majority of a division constitutes a quorum for that division. See, also, Cal., VI, 2; Colo., VI, 5; Fla., V, 5 (1902), Kan., III, 2; Ky., 118; Mo., VI, 1, 2, 3, 4a; S. D., V, 11; Wash., IV, 2.

Sometimes appellate only,-e. g., Ky., 110.

"See Cal., VI, 4; La., 101: O., IV, 2.

1e. g., Ariz., VI, 4; Colo., VI, 1; La., 85; Wash., IV, 4; W. Va., VIII, 3. e. g., Del., IV, 12 (4); Ky., 127: N. Y., VI, 1. There are also certain miscellaneous limitations as that the legislature may restrict the right of appeal; see N. Y., VI, 9; Ga., VI, sec. II, 9, 5; Ia., V, 4; La., 101; Mo., VI, 6; O., IV, 6; Va., 88.

About one-third of the states,-e. g., Mich., VII, 4; Wis., VII, 3.

40., IV, 2; Okla., VII, 3.

e. g., Ind., VII, 4; Tex., XV, 6.

"See, e. g., O., IV, 2.

e. g., Ida., V, 10; N. C., IV. 9: Neb., VI. 2; Tex., XV, 6. Ga. (VI, sec. II, V) forbids the court to exercise original jurisdiction.

SIV, 18. See, also, e. g., Mich., IV, 18; Miss., VI, 147.

186. Decisions.

187. Advisory Opinions.

in which such appeals shall be brought to hearing or determination, and shall regulate, generally, the practice of said Court of Appeals so as to prevent delays and promote brevity in all records and proceedings brought into said court, and to abolish and avoid all unnecessary costs and expenses in the prosecution of appeals therein."

Constitutional directions for arriving at decisions are frequent. For instance, in Oregon,1

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if the Supreme Court shall be of the opinion
that the judg-
ment of the court appealed from was such as should have been rendered
in the case, such judgment shall be affirmed, notwithstanding any error
committed during the trial; or if, in any respect, the judgment appealed
from should be changed, and the Supreme Court shall be of opinion that
it can determine what judgment should have been entered in the court
below, it shall direct such judgment to be entered.2

More than one-third of the constitutions specifically require decision to be by a majority of the court.3 In one state an equally divided court affirms the decision of the court below.*

Seven states require their highest courts to give advisory opinions to other branches of the government. Obviously there may be much saving of time and effort if the judges who may later be called upon to determine the constitutionality of legislation or the validity of administrative actions shall give opinions, even though unofficially, in advance. The legislature, by consulting the court prior to the consideration of bills whose constitutionality is doubtful, may with more assurance proceed

"See, also, Cal., VI, 4; Del., IV, 27, 28; Fla.. V, 40; Ga., VI. sec. II, 5, 6, 9; Ia., V, 4; Ill., VI, 8; Md., IV, 18; Mich., VII, 5; Miss.. VI, 147; Okla., VII, 8; Ore., VII, 3; Tex., V, 25; Utah, VIII, 9; W. Va., VIII, 6.

1VII, 3. Persons convicted of crime not to be given greater penalty than in trial court.

2See, also, Ariz., VI, 22; Cal., VI, 4%.

se. g., Ariz., VI, 2; O., IV, 2; Tenn., VI, 2. Occasional exceptions. Md. (IV, 15) forbids decision by fewer than three (out of eight) judges.

40., IV, 2. See, also, Mo., VI, 11. Wash., IV, 20, orders that ordinarily the superior court should reach a decision within 90 days. But see 33 Wash., 200.

Me. (VI, 3),-Upon important questions of law and upon solemn occasions when required by governor, council, senate or house of representatives.

Mass. (Pt. II, ch. III, 2) and N. H. (II, 73),-Upon important questions of law and upon solemn occasions; on request of governor and council or either branch of legislature.

R. I. (Amend XII, 2),-Upon any question of law; on request of governor or either branch of legislature.

Col., VI, 3,-Upon important questions of law and upon solemn occasions; on request of governor or either branch of legislature; opinions published in connection with report of decisions of court.

Fla., IV, 13,--Upon governor's constitutional powers and duties; on request of governor; opinion to be in writing.

S. D., V, 13,-Upon governor's constitutional powers and duties, and upon solemn occasions.

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