constitutional office. Morris v. Glover (1904) 121 Ga. 751, 49 S. E. 786 (disapproving as dictum Hall v. Burks (1895) 96 Ga. 622, 24 S. E. 349); Hall v. Tarver (1907) 128 Ga. 410, 57 S. E. 720; State v. Douglass (1910) 33 Nev. 82, 110 Pac. 177.

On the other hand, it has been held in one case that the legislature may before the election consolidate two constitutional offices. Merrill v. Gorham (1856) 6 Cal. 41.

Where the Constitution enumerates among county officers "auditors or comptrollers," the legislature may abolish the office of auditor and transfer its duties to the new office of comptroller. Lloyd v. Smith (1896) 176 Pa. 213, 35 Atl. 199.

A statute abolishing the office of judge of probate whose court is constitutional and abolishing the office of judge of insolvency, and providing for the appointment of a judge of probate and insolvency in each county, is constitutional where the Constitution provides that the legislature may transfer the jurisdiction of the probate court to any other tribunal. Russell v. Howe (1858) 12 Gray (Mass.) 147. While it is not intended to take up generally the question of separating duties from a constitutional office, it may be noted that it has been held that the legislature may not take away from the sheriff the charge of the jail nor the custody of prisoners. State ex rel. Hays v. Cummins (1897) 99 Tenn. 667, 42 S. W. 880; State ex rel. Kennedy v. Brunst (1870) 26 Wis. 412, 7 Am. Rep. 84.

2. Changing districts.

There is a sharp difference of opinion whether a constitutional office may be abolished by abolishing or changing the territorial district or circuit to which the office belongs during the constitutional term of the incumbent.

Some cases hold that this may not be done. People ex rel. Ballou v. Dubois (1865) 23 Ill. 547 (judge); Moser v. Long (1878) 64 Ind. 189 (prosecuting attorney); State ex rel. Howard v. Johnston (1884) 101 Ind. 223 (the same); State ex rel. Gibson v. Friedley (1893) 135 Ind. 119, 21 L.R.A.

634, 34 N. E. 872 (judge); Fant v. Gibbs (1877) 54 Miss. 396 (district attorney); Com. v. Gamble (1869) 62 Pa. 343, 1 Am. Rep. 422 (judge); Gibbes's Case (1800) 1 S. C. Eq. 1 Desauss. 587 (master in equity); Ex parte Cross (1886) 16 Lea (Tenn.) 486 (justice of the peace) (overruled in terms in the Redistricting Cases (1903) 111 Tenn. 234, 80 S. W. 750, infra).

Thus, where the Constitution provided for the term of office of circuit judge, authorized the legislature to increase the number of circuits, and declared in effect that the term of the circuit judge for a new circuit should be till the next regular election and till his successor was elected and qualified, it was held that the legislature might not legislate a judge out of office by creating a new district and taking away his territory. People ex rel. Ballou v. Dubois (Ill.) supra.

In Com. v. Gamble (1869) 62 Pa. 343, 1 Am. Rep. 422, supra, the court considered that they were not bound to hold the contrary by anything in Respublica v. M'Clean (1807) 4 Yeates (Pa.) 399, infra.

Other cases hold, on the other hand, that by abolition of the district the incumbent loses his office at once. Re Hinkle (1884) 31 Kan. 712, 3 Pac. 531 (justice of the peace); Re Wood (1886) 34 Kan. 645, 9 Pac. 758 (the same); Aikman v. Edwards (1895) 55 Kan. 751, 30 L.R.A. 149, 42 Pac. 366 (obiter); State ex rel. Robinson v. Lindsay (1899) 103 Tenn. 625, 53 S. W. 950 (judge); State ex rel. Harris v. Hamby (1904) 114 Tenn. 361, 84 S. W. 622 (justice of the peace).

In Re Hinkle (1884) 31 Kan. 712, 3 Pac. 531, the court said: "The legislature clearly has the power, directly or through the action of the board of county commissioners of a county, to abolish or wipe out townships; and having this constitutional power, the effect thereof may be to oust the officers of a township so abolished or destroyed from office before the expiration of their term. This would also include the constitutional power to abolish the office of justice of the peace in a township so destroyed."

Where the Constitution provided that the electors of each precinct of a county should elect not more than two justices whose term of office should be established by law, the legislature, by abolishing precincts and adding their territory to a certain precinct, abolished the office of justice of the peace in the abolished precincts. State ex rel. Garrett v. Sawyer (1903) 139 Ala. 138, 36 So. 545.

In People v. Morrell (1839) 21 Wend. (N. Y.) 563, it was held that where county courts were created by the legislature and their judge must reside in the county, the legislature may, by erecting a new county taken from an old county, end the term of judges living in the new county, although the Constitution fixes a definite term for judges of the county court.

The legislature may abolish a town by incorporating it with a city and thus abrogate its right to have justices. Gertum v. Kings County (1888) 109 N. Y. 170, 16 N. E. 328, holding that a justice, elected before the act merging the town into the city for a term beginning after such act took effect, took no office, though by the statute the acting justices were to serve out their terms. The court observed that the legislature could not directly abridge a justice's term ordinarily or abolish his office. In this connection reference may be made to People ex rel. Ingersoll v. Garey (1827) 6 Cow. (N. Y.) 642, affirmed in (1827) 9 Cow. 640, where in holding that the constitutional term of a justice of the peace was not shortened by transferring his town into a new county, the court stated that the legislature could not shorten such term.

While it was held in Ex parte Cross (1886) 16 Lea (Tenn.) 486, supra, where the Constitution provided for justices of the peace to be elected in districts for the term of six years, that the legislature could not oust the justices by repealing the charters of their towns, that case was overruled in terms in the Redistricting Cases (1903) 111 Tenn. 234, 80 S. W. 750, holding that the office of justice of the peace might be abolished in abolished

districts (but the statute excluded from its operation justices elected in and for incorporated towns). This last case was followed in State v. Akin (1903) 112 Tenn. 603, 79 S. W. 805.

It was held in State ex rel. Robinson v. Lindsay (1899) 103 Tenn. 625, 53 S. W. 950, that the legislature may abolish a district and divide it among other districts and abolish its court and thus extinguish a judgeship during the judge's constitutional term, this being one of the courts that the legislature "shall from time to time ordain and establish."

But it was held in the Judges' Cases (1899) 102 Tenn. 509, 46 L.R.A. 567, 53 S. W. 134, that the legislature cannot remove a judge during his constitutional term by concurrent resolution reciting that there is not sufficient business to justify his retention in office, and that there should be a change in districts and a reduction in the number of judges, and referring to the fitness of the judge, where the Constitution provides that judges "may be removed from office by a concurrent vote of both houses of the general assembly," that "the cause or causes of removal shall be entered on the journal of each house, respectively," and that the judge "shall receive notice thereof, accompanied with copy of causes alleged for his removal, at least ten days before the day on which either house of the general assembly shall act thereupon."

(It may also be noted in this connection that it was held in State ex rel. Tyler v. King (1899) 104 Tenn. 156, 57 S. W. 150, that where a person was judge of more than one inferior court, the legislature might abolish one of such courts, transfer its jurisdiction elsewhere, and take away the salary pertaining to such judgeship.)

Where the Constitution provided for justices of the peace "in such convenient districts in each county as are or shall be directed by law" to be commissioned during good behavior, and provided that no person should be appointed to any office within any county who was not an inhabitant thereof, the justice of a district had jurisdic

tion throughout the county. It was held, on his district and other lands being created into a new county, that a justice lost his office. Respublica v. M'Clean (1807) 4 Yeates (Pa.) 399, where one of the judges stated that the justice might remove into the new borders of his old county and continue to act there.

It was held in Proulx v. Graves (1904) 143 Cal. 243, 76 Pac. 1025 (where the holding incumbents were not to be affected), that a constitutional court of justice of the peace may be eliminated by a consolidation of townships made by a county, authorized by general statute.

The following miscellaneous cases in relation to change of districts may be referred to in this connection:

Where the Constitution provided that a judge "shall reside in the circuit for which he was elected," and that "the legislature may alter the limits or increase the number of circuits, making them as compact and convenient as practicable, and bounding them by county lines, but no such alteration or increase shall have the effect to remove a judge from office," the court expressed the opinion that where by a change in circuits a judge's place of residence was placed outside his circuit, he was to be given a reasonable opportunity to remove to a place within the circuit. State ex rel. Atty. Gen. v. Messmore (1861) 14 Wis. 164.

Unless the Constitution fixes the number of judges, the legislature may reduce the number by first reducing the number of districts, leaving some judges unassigned during the remainder of their terms, and providing for no successors to such unassigned judges. Price v. Anderson (1888) 65 Miss. 410, 4 So. 540.

An act making a city out of parts of certain townships and providing that justices elected for those townships remain in office until the expiration of their terms is unconstitutional, where the Constitution provides that whenever a justice of the peace by a change in the boundaries of the township in which he was elected shall be placed without the same, he shall be deemed to have vacated his

office. People ex rel. Berry v. Geddes (1853) 3 Mich. 70.

c. Other offices.

1. Constitutional provisions. Clauses in a Constitution respecting the holding of offices in general by incumbents during their terms do not as a rule prevent the abolition of an office and the ousting of its incumbent. Thus, the legislature is not prevented from abolishing an office and ousting the incumbent by a constitutional provision that those in office when it takes effect shall hold until the expiration of their respective terms (Koch v. New York (1897) 152 N. Y. 72, 46 N. E. 170; Stenson v. Koch (1897) 152 N. Y. 87, 46 N. E. 176; Re Quinn (1897) 152 N. Y. 89, 46 N. E. 175; People ex rel. Thornton v. Hogan (1895) 14 Misc. 48, 35 N. Y. Supp. 226), or that they shall hold their offices for the term for which they were elected (State ex rel. Faussett v. Harris (1890) 1 N. D. 190, 45 N. W. 1101), or for the full time for which they have been elected (Ex parte Bergman (1890) 3 Wyo. 396, 26 Pac. 914).

In a case where the court considered that offices were in effect vacated, not abolished, it was held that the constitutional provision simply meant that officers should hold till their successors had qualified, and that it did not prevent removals during terms, where it declared: "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected, or appointed, and qualified." State ex rel. Circuit Atty. v. Hermann (1881) 11 Mo. App. 43.

Municipal offices created by the legislature may be abolished by the legislature during the terms of incumbents notwithstanding a new Constitution provided that "all officers, executive, legislative, and judicial, state, parish, and municipal, who may be in office at the adoption of this Constitution . . . shall hold their respective offices until their terms shall have expired, and until their successors are duly qualified, as provided by this

Constitution, unless sooner removed, as may be provided by law; and shall receive the compensation now fixed by the Constitution and laws in force at the adoption of this Constitution, except as herein otherwise provided." State ex rel. Fortier v. Capdevielle (1901) 104 La. 561, 29 So. 215.

In Bridgman v. Roberts (1914) 40 Okla. 495, 139 Pac. 518, it appears to be held that the charter of a city may be amended by changing the salary and terms of certain officers notwithstanding a provision of the Constitution declaring that "except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment." The court stated that such a constitutional provision does not prevent the abolition of the office; but it does not appear in the case that there was any abolition.

The legislature's right to abolish a township office is not impaired by a constitutional provision "that no inconvenience may arise from the changes in the Constitution of the commonwealth and in order to carry the same into complete operation, it is hereby declared that in the

case of officers elected by the people, all terms of office fixed by acts of assembly at an odd number of years, shall each be lengthened one year; but the legislature may change the length of the term, provided the terms for which such officers are elected shall always be for an even number of years." Leedom v. Allen (1913) 52 Pa. Super. Ct. 529.

The legislature's right to abolish an office created by it is not impaired by the constitutional provision that no law shall diminish the salary or emoluments of a public officer after his election or appointment, as this provision has no application where an office is abolished. State ex rel. McVey v. Burris (1901) 4 Penn. (Del.) 3, 49 Atl. 930; Donohugh v. Roberts (1881) 11 W. N. C. (Pa.) 186 (where, however,

the statute was held unconstitutional on another ground).

There is a difference of opinion whether the rules above stated apply in case of judges whose courts may be abolished by the legislature. In connection with the cases immediately following, reference should be made to the foregoing subdivision, VI. b (2), "Changing districts."

It has been held that the legislature may abolish a court created by it during the term of the judge and thus oust him, although the Constitution fixes the length of the term and provides that the compensation of judges shall not be increased or diminished during their terms. State ex rel. Halsey v. Gaines (1879) 2 Lea (Tenn.) 316; State ex rel. Coleman v. Campbell (1876) 3 Shannon, Cas. (Tenn.) 355. These cases are approved (obiter) in the Judges' Cases (1899) 102 Tenn. 509, 46 L.R.A. 567, 53 S. W. 134.

The legislature is not prevented from abolishing municipal courts by the provision of the Constitution that "the salary of any county, city, town or municipal officer shall not be increased or diminished after his election or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed." Bogue v. Seattle (1898) 19 Wash. 396, 53 Pac. 548.

Inferior courts which a state Constitution authorizes the legislature to establish, such as a city court, may be abolished by the legislature and the offices of the judges thereof accordingly abolished during their constitutional terms. Perkins V. Corbin (1871) 45 Ala. 103, 6 Am. Rep. 698, where, however, it was also held that the court in question had been established by an illegal legislature.

The legislature may abolish county courts and thereby oust the judges thereof although the Constitution provides that the "general assembly shall not interfere with the office of any judge," where it also provides that the general assembly may provide for "the abolition of existing inferior courts." Van Buren County v. Mattox (1875) 30 Ark. 566.

A constitutional provision that judges of a certain court shall hold their offices for five years must yield to another provision that the legislature may alter or abolish the court, and therefore the legislature may reduce the number of judges by fixing an end to the terms of certain of them although within five years after they took office. State ex rel. Kenny v. Hudspeth (1896) 59 N. J. L. 320, 36 Atl. 662, affirmed in (1896) 59 N. J. L. 504, 37 Atl. 67; Holle v. State (1898) 62 N. J. L. 533, 41 Atl. 832, affirmed in (1900) 64 N. J. L. 363, 48 Atl. 1118.

On the other hand, it has been held in Louisiana that a judge cannot be deprived of his salary during his constitutional term by abolishing his office. State ex rel. Elmore v. Jumel (1877-80) Man. Unrep. Cas. (La.) 225. State ex rel. Collens v. Jumel (1878) 30 La. Ann. 861, disapproving the decision to the contrary in State ex rel. Collens v. Clinton (1874) 26 La. Ann. 406.

And it has been held in Tennessee that the legislature, having created the office of county judge for a certain county, could not during his constitutional term abolish the office and create the new office of chairman of the county court, an office identical except in name, and devolve the old duties upon the holder of it. State ex rel. Orr v. Leonard (1887) 86 Tenn. 485, 7 S. W. 453.

The legislature's power to abolish offices created by it is not affected by a provision in the Constitution for the impeachment and removal of officers. Hawkins v. Roberts & Son (1898) 122 Ala. 130, 27 So. 327; State ex rel. Yancey v. Hyde (1891) 129 Ind. 296, 13 L.R.A. 79, 28 N. E. 186.

A constitutional provision that the legislature should establish a uniform system of county government authorized the legislature to abolish county offices (not mentioned in the Constitution) in carrying out the above provision. State v. Tilford (1865) 1 Nev. 240.

The legislature may abolish the office of supervisor in a county where the Constitution expressly provides

that any change that the legislature might see proper to make in county governments shall be lawful. Fooshe v. McDonald (1908) 82 S. C. 22, 63 S. E. 3.

Peculiar local questions.

The legislature may abolish the office of justice of the peace in certain precincts, when the Constitution declares that the legislature may provide by law for the election of not more than two justices of the peace for each of such precincts or an inferior court in lieu of all justices of the peace therein, and may in such case abolish the office of a notary public therein with the powers of a justice of the peace appointed by the governor under a provision of the Constitution. McGehee v. State (1917) Ala., 74 So. 374.

The legislature may abolish the office of justice of the peace in a city. as it is not the same office as that of justice of the peace in towns. People ex rel. White v. Rochester (1877) 11 Hun (N. Y.) 241, where the court pointed out that the legislature was vested by the Constitution with power to abolish all local courts in cities and villages, and quoted the constitutional provision that "justices of the peace and district court justices shall be elected in the different cities of this state, in such manner, and with such powers, and for such terms respectively, as shall be prescribed by law."

Followed in Reid v. Stevens (1910) 70 Misc. 177, 126 N. Y. Supp. 379, the wording of the Constitution having been slightly changed so as to read, "may" be elected and as "are or" shall be prescribed by law.

But where the Constitution gives the authority to the electors of cities and villages to elect justices of the peace. at their charter elections in such manner as the legislature may direct, after the legislature has once provided in a charter for the election of justices of the peace in a certain city the legis-. lature cannot thereafter deprive the citizens thereof of the right to elect a justice of the peace. State ex rel. Wood v. Goldstucker (1876) 40 Wis. 124.

Where the Constitution provided that the number of justices of the