New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1909-11-25
JUDICIAL SALARIES.
Justice Hirschberg's Doctrine Chal
lenged.

To the Editor OF The Tribune.
Sir: ! note that your issue OF to-day
quotes Justice Hirschberg as saying that
the state constitutions prohibition Of an
increase OF judges salary during his
term Of Office refers only TO compensa ton
received from the state, and has no pro-
hihitOry power over what compensation,
additional or otherwise. may be voted by
any locality You say:
He cited an instance in 1ses when the
New York city had their salaries raised
To equal that OF the Justices I'm the city,
That increase fell upon the various iocsli-
ties In which they Ofhciatcd-
That is doubtless the only view which
the judge could take in order 20 uphold
the act OF 1Ses giving himself and other
rural judges in the I'd Department
salaries equal 10 those of the Brooklyn
judges I do not question the justice Of
that increase On the contrary. I believe
that the services OF Justice Hirschberg
and his associates are worth all that they
receive. The increase was openly and
honestly voted TO them in harmony with
public opinion. and apparently on the
theory of the constitution which Justice
Hirschb berg now holds I do not think the
Legality Of that raise has ever been ques-
stitutional amendmens is passed. fixing
their salaries at the rate now paid. the
matter Of the legality OF the original adj
vance becomes academic Therefore, I
shall not be understood as wishing to undo
what has been done in this matter when /
express the opinion that the raise was en-
tirely unconstitutional
The application OF the constitution in
the matter was clearly decided in 1850
by People ex rel Mitchell agt. Haws. (S2
Barb. 2e1)- The constitution OF 1876 for
bade the increase or decrease Of a Justices
salary during his term Of office substan-
TALLY as the present constitution does.
In 1882 the Legislature authorized the
Board of Supervisors Of New York County
TO pay additional compensation as IL saw
mt The cOnstitutiOnality OF this act as
il applied 10 a justice holding Ofti,s at the
time it was passed was challenged, and
Justice Sutherland declared IL uneonsti-
tutiOnaL Consequently the extra compen-
satien. except for judges as they were
elected thereafter. could not be paid, The
constitutional revision Of 1867 dropped the
prohibition against increase Of salaries
The way was thus opened for the extra
allowance which has Since been paid in
New York and Kings counties The con-
old prohibition. and since that time / do
not believe there has been any valid in
crease Of judicial compensation. though
OF course, extra compensations as fixed
by law before 1895 remain valid.
Justice Sutherland, in the case already
cited. squsrely faced the question OF extra
compensation given from other than the
state treasury, declaring that when il
was paid in pursuance Of an act of the
Legislature il fell within the prohibition
of the constitution. The constitution
calls for "a compensation established BY
law. which shall not be increased or di-
minshed during their official terms" The
act of 1888 does establish the compensa-
tiOn OF Judges by law IL is a mandate
10 the rural counties In the I'd Depart
ment The fact that the levy is upon a
county treasury and not upon the state
treasury cannot alter its character as
compensation fixed by law. and conse-
qIently IL Is increased uncOnstitutionaIlv
II the view Of Justice Hirschberg is
correct. what is to prevent the Legisla-
ture from increasing any salary fixed by
the constitution by levying the addition
upon some county, or authorizing some
local body to give H.? II might then in
crease the Governors salary which is
too low. by providing that Albany County
should give him a few thousands more be-
cause he lives there and benefits the com
munity, or that New York city should
pay him something because he has the
power Of removal over it's officials. and
has earned II by displacing couple of
Borough Presidents. That would be cutie
as Logical as the subterfuge of increas-
ing judicial salaries on the plea Of extra
services in the drawing OF jurors How
can Justice perform public service apart
from the duties of his office when the con
stitutiOn expressly provides that he shall
hold no other Office or public trust than
his Justiceshipc
As ] said al the outset. the opinion at
trbuted 10 Justice Hirschberg is auite
natural under the circumstances. because
the matter has been allowed 10 go on for
years without any clear analysis From
the beginning. perhaps because the Old
Council Of Revision was supposed to PASS
on the constitutionality OF laws before
they were passed and because the old
Court Of Errors. the highest court to mass
upon its constitutional questions. was
chiefly made up Of Senators. this state has
mad a had habit of twisting the plain
words Of the constitution 10 meet lesisla-
tive views. and IL is not surprising tbst
even judges have been confused
TAXPAYER
Brooklyn. Nov. 3. 1899