constitution in the sense that we have, or in any other, except theoretically; but our constitution, which is written, fixed, and permanent, left no such scope for the removal of judges. It gave only the power of removal to the legislature, coupled with condition that it must be for cause,-for cause of which notice must needs be given, and to which there could be defense, and, of course, successful defense, interposed, for no American lawmaking body ever yet went through the form of calling a citizen to a trial, requiring that he should have notice, and yet cut him off from a trial or defense that might be successful, that was intended to be successful, if made out. It is therefore not true that any support of this legislative resolution is derived from its English semiprototype or the contemporary constitutions of this country. Some of the latter in terms specified what the "causes" should be. Some said for any or certain ones not sufficient to amount to impeachable causes, but no single one ever required a "cause" to be assigned, as ours does, which did not mean one personal to the judge,-to his acts, habits, or character. No one ever did recognize as "cause" anything over which he had no control, or which did not have personal relation to his discharge of duty, and no single case can be found to the contrary.

Having devoted so much space to this ques tion because of its supposed serious and final effect on what was concededly a doubtful result so far as the acts abolishing the office of judges were concerned (for the resolution of removal was treated legislatively as a method to "clinch," as was there said in argument, the abolishing act), we come to that question, and proceed to its consideration with the elaboration it deserves, at the risk of being tedious; for the question is one of the most important that ever arose for final decision in this state, and upon its determination hangs, as we think, not only the independence, but the existence, of the judicial department of the state government. As already stated, our government, state and national, is divided into three distinct and independent departments, -legislative, executive, and judicial. Such, too, is, in substance, the divisions of all the other state governments, and it may well be practically termed the form which republican governments have taken in these United States, and which the constitution thereof guaranties to every state in the Union. Const. U. S. art. 4, § 4. Our own constitution, based on that, and substantially that original of 1796, which had Mr. Jefferson's commendation as one of the best ever framed, after providing that "all power is inherent in the people," proceeded to declare how the people would have it exercised, to distribute into departments, and to vest in each such as the people wished each to exercise, and to put upon each the limitation which was deemed essential to confine it within the scope of the authority the people vested, and beyond which they intended to restrain. It is sometimes

said that the legislature is omnipotent, and its authority unlimited, except when restrained by the constitution of the state or the federal government. It is treated as a great residuum of power not otherwise constitutionally disposed of or restrained. This is sub modo true, generally, in the cases in which it has been uttered, but it is wholly inaccurate when given the general application to which its formulation would lead. All that is meant by it is that, following the English rule as to parliamentary power, the parliaments or legislatures of the states of the Union, as legislative representatives of the people, have all legislative power, not expressly or by necessary implication limited, that the English parliament did. Smith v. Normant, 5 Yerg. 272, 273. So far as this question is involved here, it may be dismissed with a mere suggestion. The power of creating or abolishing judges never did, and does not now, abide in the parliament of England. The English theory was that the king was the judge in England. Later this kingly power was delegated by him to others appointed by him. They existed with him (subject to his power of removal), and officially died with him, if not before removed. Yet later, on recommendation of the king, the last feature was changed by act of parliament, and the tenure of the office of each incumbent was extended beyond the death of the king; and the office was ultimately held during good behavior, which, of course, meant during life, if not forfeited by misconduct. But still to this was added a right of removal by the king upon what was termed an "address" of both houses of parliament, and which, it is said, was made in the form of a resolution. 13 Enc. Brit. (9th Ed.) p. 763. Never, therefore, did the power of appointment or removal of a judge vest in the parliament of England. It was not a legislative power there, and is not here, unless the people have made it so. If it was a legislative power, and was not constitutionally limited, it would remain a legislative power. If it was not, and was never made so, constitutionally, it would remain in our system one of the powers amid these all of which are "inherent in the people," and not to be exercised except as they organically will it to be.

It is necessary, therefore, to see what our constitution provides on that subject, and how it regulates the creation and abolition of courts. Without going on this question, beyond our present constitution, except for the purpose of illustrating the view of the public, we would call attention to other utterances of the people, as indicative of the purpose they had, and the proper construction of the view expressed in that constitution. It will be remembered by all students of history that the course of dependent judges rendered truculent by control, and made infamous by subservience, had created for the English people a more insupportable condition of legal tyranny and authorized oppression than had ever found existence in

the wildest usurpation of pretenders or the most abominable license of established despots. This, among all the grievances which caused revolution and advanced the cause of freedom there, and gave it absolutely here, was the result of such disregard of popular rights and liberties by dependent creatures of the crown called "judges." It is to be remembered that one of the complaints of the American colonies against the injustice of the king was that: "He has obstructed the administration of justice by refusing his assent to laws for the establishment of judiciary powers. He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries." Declaration of Independence, eighth and ninth complaints. When the struggle for independence under this declaration was successful, and a form of government came to be adopted, these evils complained of were remedied. An independent judiciary, in an independent government, was secured by constitutional provisions giving a fixed tenure of office and prohibiting reduction of salary. In the federal government the tenure was for life or (what may be the same thing, and must be, to a faithful and irreproachable official) during good behavior, and there was a provision against decreasing judicial salaries. In the constitution of this state the same course was taken, with an improvement, at least in one respect: The tenure was fixed, not for life, but fixed at eight years, and the provision against decreasing was extended to prevent increase of salaries. Specifically, our constitution provided on this subject that "the powers of the government shall be divided into three distinct departments, the legislative, executive and judicial." Article 2, § 1. "No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted." Section 2. After thus distributing the powers of government into these three distinct and independent departments, the people, in this constitution, thus proceeded to vest them, so far as the question now involved is concerned: "The judicial power of the state is vested in one supreme court and in such circuit, chancery and other inferior courts as the legislature shall from time to time ordain and establish; in the judges thereof and in justices of the peace. The legislature may also vest such jurisdiction in corporation courts as may be deemed necessary. Courts to be holden by justices of the peace may also be established." Article 6, § 1. "The judges of the supreme court shall be elected by the qualified voters of the state. Term of service shall be eight years." Section 3. "The judges of the circuit and chancery courts and of other inferior courts shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Term of service shall be eight years." Section 4. The judges of the supreme or in53 S.W.-11

ferior courts shall at stated times receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. Section 7. This fixed tenure of office and unchangeable salary were the methods devised to secure judicial independence, as they have ever been in the American constitutions. The provision vesting judicial power, among other courts, in circuit and chancery courts, was intended to preserve (whatever else might be added) the system of circuit and chancery courts. So was and is its plain purport. In like manner it has been held to be the constitutional object to preserve the county court as a part of our court system upon like recognition, but in yet other sections of the constitution. Pope v. Phifer, 3 Heisk. 683. These three courts thus recognized as preserved by the constitution in addition to the supreme court have been protected, in theory, since the adoption of the constitution, always and in all opinions. They have been in fact protected in all the cases up to 1875,-notably and powerfully in the Pope Case, in 3 Heisk. 683. Like other constitutional offices, it has been held that legislative control of their existence must be denied, and that even as to duration of their terms the legislative power could not be exercised.

In 1875 it was held that, though true in theory that circuit courts and chancery courts must be maintained, it was not so in fact,the legislature could abolish any it chose. State ex rel. Coleman v. Campbell, 3 Tenn. Cas. 355. Of course, if it could abolish any, it could abolish all, as it was not and is not pretended that any one or more of them enjoyed a special immunity from legislative control. This case was based upon the theory that the power to establish involved necessarily the power to abolish,-a theory wholly inconsistent with the constitutional provision for the establishment and continuance of the circuit and chancery court system; for, if one or both is "established," it can and "shall" exist or have jurisdiction vested in it under the constitution, and thus be kept alive and preserved against legislative power, as a part of the court system, as a constitutional court; but, if the power to establish includes the power to destroy, such cannot be the result, and there is no protection to either circuit or chancery court system thus recognized and attempted to be preserved and protected by the constitution. It happened that in the particular cases cited (State ex rel. Coleman v. Campbell, and the case heard with it, Verene v. Williford), the courts, as well as those preceding them, circuit and chancery, had been created by special acts, so that, dealing with them, Judge Nicholson said: "If the legislature had the power to enact the law, it must be either because the ordaining or establishing of courts is a legitimate legislative power necessarily involving the power to abolish as well as to ordain and establish, and that the constitution has placed no restriction upon the exercise

of this power inconsistent with the action of the legislature in the present case, or because the constitution expressly or by necessary implication has vested in the legislature the power to ordain and establish courts, and that this power carries with it the power of abolishing existing courts." Taking this proposition, which was the question in issue, for granted, the judge delivering the opinion proceeded to the conclusion that necessarily the legislature could abolish and could establish, but by the constitution of 1870 it was prohibited from disregarding the provision to establish circuit and chancery courts, and must keep those systems in existence, in connection with any other inferior courts it might establish. That this conclusion is so incorrect, not to say transparently erroneous, as to be perfectly demonstrable, appears from the simplest statement. If the legislature must preserve circuit and chancery courts, and yet may abolish them; if it is true also, as it constitutionally is, that it may also establish other inferior courts, and vest in them such jurisdiction as it chooses,-why could it not abolish all circuit and chancery courts, and then establish other inferior courts in whom it might vest all inferior jurisdiction? Who would say, and what but the constitution could say, how many, if any, circuit courts or how many chancery courts, if any, it should preserve? It is so clear that the power to establish does not include, as against this preservative provision of the constitution, the power to destroy any or all of them, that it is wonderful to us that the contrary view could have ever prevailed for a moment. To say nothing of the provisions which make constitutionally the term of all the judges of all these courts eight years, and prevent changing their salaries during the time for which they were elected, it seems so manifest that the power to destroy one or all those courts, when created, is against the preservative clause of the constitution respecting the circuit and chancery courts, as only to need suggestion to demonstrate its nonexistence. If the legislature can abolish one, it can abolish all. Which shall it re-establish, and how can it be required to re-establish, any one of them, and, if so, which, especially in view of its power to establish other inferior courts and vest them with any jurisdiction it pleases? It is a vain thing to say it can abolish as it pleases, but must retain or recreate the same tribunals. The concession of the power to abolish one, coupled with the declaration of constitutional necessity for the retention of the system, which the court holds in that case must be done, is a patent impracticability, not to say absurdity.

The only argument for the preservation of the system is its constitutional establishment over and against the power of the legislature to abolish it, when established, during the existence of any term. It is not a question of trusting the legislature not to do it; it is a question of its power to do it, against the

positive provision that these courts must exist by the preservative clause vesting in them the jurisdiction when created. No other conclusion meets this difficulty, and no argument has been made or could be made which obviates it. We would just as well say it must exist, but may not exist, as to assert the proposition contended for, or put two and two together, and say they shall not make four, as to assert that the constitution preserves this system of courts against the power of the legislature, and then say it may destroy it by destroying the courts severally or in toto. The principle herein contended for was conceded by the same court which decided the Coleman Case, and still that case was in part adhered to in State ex rel. Halsey v. Gaines, 2 Lea, 316, 319. In that case it was conceded (page 326) that an act abolishing a circuit with intent to destroy a judge would be void. This concession can mean nothing else than that an act destroying a judge by abolishing a circuit or division would be void, because it had been before and has repeatedly since been decided that the personal motive or intent of the legislature in passing an act cannot be inquired into, and, as the only intent which can be considered is the legal one determined by the effect of the act, if that effect is to destroy the judge the intent appears, and the act is void. If this is not so, the concession is meaningless and misleading, not to say frivolous. For almost the same reasons are the other inferior judges protected from legislative interference. They are to be men of the same age, the same term of service, with the same unchangeable compensation, and elected by the same voters in the same district or circuit where they serve. Const. art. 6, § 4. The word "district," it must be remembered, was once (and then) used for the county or counties embraced in a section where one court was held for one or more counties. Hence our old statutes referred to a chancery district; one of them providing that certain bills should be filed in the chancery "district," etc. The manifest constitutional object was to permit the establishment of courts for any circuit, division, or district composed of one or more counties or specific territory, and then make their existence during a term equally inviolable for such term, and to secure both and in the same way the compensation of the judge was to be unchangeable, not during any "term of service," but "during the time for which he was elected." To this conclusion this court came in the case of State v. Leonard, 86 Tenn. 485, 7 S. W. 453, and we used language there which we thought could by no possibility be misconstrued. In this connection we said: "The constitution, in fixing the terms of the judges of inferior courts, elected by the people, at eight years, intended not only to make the judiciary independ ent, and thereby secure to the people the cor responding consequent advantages of courts free from interference and control, and re

moved from all necessity of being subserv ient to any power of the state, but intended also to prevent constant and frequent experimenting with court systems, than which nothing could be more injurious or vexatious to the public. It was intended, when the legislature established an inferior court, that it should exist such a length of time as would give opportunity for mature observation and appreciation of its benefits or disadvantages, and that the extent of its duration might discourage such changes as were not the result of most mature consideration. Realizing

that a change, if made so as to constitute an inferior court, would fix that court in the system for eight years, a legislature would properly consider and maturely settle the question as to the propriety and desirability of such change or addition to our system; and conscious of the impropriety and the hazard of leaving the judicial department of the government at the mercy and whim of each recurring legislature, itself elected but for two years, the framers of the constitution wisely guarded against these evils by the section referred to. Properly construed and enforced, it is effectual for that purpose. Disregarded or impaired by such interpretation as leaves it to exist in form without force or substance, and we have all the evils and confusion of insecure, changing, and dependent courts; frequent and constant experimenting with systems provided in haste, tried in doubt, and abolished before their merits or demerits are understood. It would be a mortifying reflection that our organic lawmakers intended any such result in their avowed effort to make a government of three distinct and independent departments, and still more humiliating if we were driven to the conclusion that, while they did not intend it, they had been so weak and inapt in phraseology adopted as to have accomplished it. When a court whose judge is elected by the people of one or more counties in a district or circuit is constituted by the legislature, and an election had, and the officer commissioned and qualified, it is not in the power of the legislature to take from him the power and emoluments of office during the term of eight years by devolving them intact upon another, or otherwise. If it can abolish in this way the office of county judge, it can abolish the office of any inferior judge, as all are protected, or not protected, by the clause of the constitution referred to [article 5]. For the honor of the framers of our constitution, the best interests of our people, the independence of the judiciary, and the security and order of our court system against rash and constant experiments of legislation, it affords us much satisfaction to give the constitution its plain, natural, and unobscure effect, to invalidate legislation of this character, and to be able to say that nothing as yet decided by our court stands as an obstacle in the way of our doing so. But, if there were, it would afford us pleasure to

remove it." State v. Leonard, 86 Tenn. 485, 7 S. W. 453.

The cases supposed to stand in the way were State ex rel. Coleman v. Campbell and State ex rel. Halsey v. Gaines; and after saying that we did not wish to be understood as assenting to the correctness of the conclusion reached in them, and rejecting their reasoning, we showed that, though erroneous, they did not need to be in terms overruled, because the exact question of the Leonard Case was not decided there, but we wholly repudiated them, and gave the constitution an opposite construction. Giving the constitution this construction harmonizes the entire section quoted, makes the judiciary department in fact, and not merely in fiction, independent, and harmonizes all the other cases before and since on this subject. See Smith v. Normant, 5 Yerg. 271; Pope v. Phifer, 3 Heisk. 682; State v. McKee, 8 Lea, 24; Cross v. Mercer, 16 Lea, 486; State v. Maloney, 92 Tenn. 68, 20 S. W. 419; State v. Cummins, 99 Tenn. 674, 42 S. W. 880. It had been before, as it was in the Leonard Case, decided that, when the constitution fixed a term, if the legislature created the office and abridged the term that part of the act creating the office was valid, but the abridgment was void. Brewer v. Davis, 9 Humph. 208; Keys v. Mason, 3 Sneed, 9. This was repeated in the Leonard Case. It was before this, but later than the Coleman Case, decided that a legislative act which might destroy a judge's right to hold his office was inoperative, although the judge was neither a circuit judge nor chancellor. State v. Ridley (MS., Nashville). And yet later it was, we thought, affirmatively and forever settled in the case of State v. Cummins, 99 Tenn, 674, 42 S. W. 880, where we held that if the constitution merely named an officer (as sheriff), without defining his duties, it was impossible to destroy his office, or take from him the substantial emoluments and functions of the office and confer them upon another, on any pretext whatever. This case proceeds upon the same grounds and cites the same authorities which controvert the view of the court in State ex rel. Coleman v. Campbell and State ex rel. Halsey v. Gaines.

It should be noted here that all the cases in this court have gone upon the theory, generally recognized in the American courts, that when the legislature makes or creates an office without a tenure, or independently of constitutional provision, it can abolish it or change its tenure or its compensation at pleasure, but that when it creates a constitutional office (that is, one directed or authorized under the constitution or recognized by it, and for which the constitution has provided a tenure) the legislature cannot abolish the office, abridge its term, or destroy its substantial functions or emoluments. 12 Am. & Eng. Enc. Law, pp. 18, 19. We quote in full: "It is a general rule that, when an office is created by statute, it is wholly within the