Gorham v. Robinson , 57 R.I. 1 ( 1936 )

In determining the main question presented by these cases, so vital to the perpetuation of orderly constitutional government in this State, I regret that I cannot agree with the decision of the majority of this court which holds that the enactment of Chapter 2253. Public Laws 1935, is a valid exercise of the legislative power by the general assembly under the constitution. Neither can I subscribe to the reasoning advanced by it in support of that conclusion. Mr. Justice Baker, whose co-operation I hereby acknowledge authorizes me to say that he concurs in this dissenting opinion.

These are petitions in equity in the nature of quo warranto brought in this court to determine the title of the petitioners to the judicial offices to which they were appointed for a term of six years in January, 1932. The petitioners who duly qualified following such appointment, have served in their respective offices from the first day of February, 1932, until all were summarily removed in June, 1935, under the provisions of Chap. 2253. It is mere repetition for us to set out in detail the allegations of these petitions. The respondents have filed a motion to dismiss the petition in each case on the ground that the constitutionality of Chap. 2253 is improperly presented, according to our well-established practice, by the record before us. The defects in form urged by the respondents might be determinative in the ordinary case, for we do not intend to depart, by our attitude in these cases from a strict observance of the rule consistently demanded by this court that one who assails the constitutionality of an act is under the duty to specifically and accurately point out the provision or provisions of the constitution which he claims are violated by the act in question. Inasmuch as the petitions in these cases strike at the very root of government by specifically charging that Chap. 2253 is in violation of Art. III of our constitution, which deals with the distribution of the powers of government, we are inclined to overlook other possible defects of form because of the great public importance of the principal question presented. The respondent's motion to dismiss in each case is therefore denied.

In construing the provisions of the constitution, our sole purpose is to ascertain the intention of the people who adopted it. It is fair to start with the assumption that those who were designated by the people to deal with the sovereign power and to distribute that power to the various departments of government were mindful of the fundamental principles of American constitutional government, and that it was their intention to perpetuate those principles in apt and plain language. It is also fair to assume that the people, when they adopted the constitution, also had these principles in mind; that they gave the language and words used in the proposed constitution their natural and obvious meaning and that they ratified the instrument with these understandings.

It is fundamental that the constitution derives its force from the people who adopted it and not from the convention that prepared it for such adoption. The meaning expressed by the individuals in a constitutional convention may be of some assistance in case of doubt, but it is not controlling, especially if the language in the constitution naturally and reasonably construed, conveys a different intention. A State constitution demands a reasonable construction in the light and with the assistance of the common law which still remains in force after such a constitution is adopted, except as limited by that instrument. The individual expression of opinion by members of the convention or the application of arbitrary rules of construction "are to be made use of with hesitation and only with much circumspection." Cooley, Const. Lim., Vol. 1 (8th ed.), 171.

When implications are resorted to they must be necessary and not conjectural or argumentative, especially if they lead to a construction that is in conflict with our principles of government. Implications are not warranted when, giving effect to every section and clause of the instrument as a whole and in relation to each other, the intent of the people is apparent. A construction of the instrument which will render every word operative is to prevail over one which, because of implications will make some idle and nugatory. "That which the words declare is the meaning of the instrument; and neither courts nor legislatures have a right to add or to take away from that meaning." Newell v. The People, 7 N.Y. 9, 97.

Chapter 330. G.L. 1923, continues in force a system of district courts for this State. Section 1 divides the State into twelve judicial districts, and Sec. 2 provides that: "There shall be a court in each judicial district entitled the district court of the district in which it is established." Section 3 provides for the election of the judges of these courts in the month of January, 1926, and in the month of January in every third year thereafter by the general assembly in grand committee the judges so elected to "hold office for the term of three years commencing on the first day of February next following their election." Section 4 sets forth similar provisions for the clerks of these courts. Section 1 Chap. 1690 P.L. 1931 amends Secs. 3 and 4 of Chap. 330, and provides that in January, 1932, which is at the end of the term of the then incumbents, and "in the month of January in every sixth year thereafter, the governor, with the advice and consent of the senate, shall appoint" the judges of the district courts, an associate judge of the District Court of the sixth judicial district, and the clerks of all district courts "to hold office for the six years commencing on the first day of February next following their appointment."

Section 1, Chap. 2253, P.L. 1935, which is the chapter before us in these cases, amends Secs. 3 and 4 of Chap. 330, G.L. 1923, as amended by Chap. 1690, P.L. 1931, and by a retroactive provision enacts that in the month of January, 1932, the governor, with the advice and consent of the senate, shall appoint all such judges and clerks "to hold office for the three years commencing on the first day of February next following their appointment." This act was approved June 3, 1935, at which time all these petitioners had qualified and were acting as judges or clerks of the district courts for their respective districts since 1932, they having been duly appointed, as we have already stated, in January of that year for a term of six years, or until January 31, 1938.

On June 18, 1935, under executive appointments, which were confirmed by the senate, other persons, including these respondents, were named judges and clerks of the district courts for the "term ending January 31, 1938," in place of these petitioners and others. The result was that all twelve judges, one associate judge and all the clerks of such courts were removed and, by the executive appointments of June 18, 1935, only three of the original judges were reappointed; no one of the clerks was reappointed.

We believe it due to the legislature and to the people of this State to say that no personal objections existed against the petitioners in these cases; that they, equally with those who were named in 1935 to supplant them, are men of character, fully able to well and faithfully perform the duties of their respective offices. Stated in plain language, Chap. 2253, P.L. 1935, is, in our opinion, nothing more than a removal statute which, by means of a retroactive provision, terminates the tenure of judicial officers in the middle of their terms without cause and without hearing.

This act, which is inconsistent with previous legislative practice, can be valid only if the legislature had the power under the constitution to enact such a law. The issue in this case is of serious concern to the people of this State. The struggle for an independent judiciary which they have waged for centuries and which they will probably continue to wage for many more, is a heritage of our people. They have constantly demanded that the common rights of person and property be determined under the law by men who, as judges, were controlled only by their judgment and their conscience.

The wisdom or advisability of a particular statute is not a question for this court to determine so long as the statute is within the constitutional power of the legislature and no motive or purpose, other than appears upon the face of the enactment, can or should be imputed to the legislature. We are also mindful of the fact that every intendment is in favor of the validity of a statute, unless it is clearly shown that the statute is irreconcilable with the constitution. We fully appreciate the reluctance with which courts hold enactments of the legislature void, yet it is the plain duty of the court to unhesitatingly declare an act of the legislature unconstitutional whenever a statute violates the intent and meaning of that fundamental law. The constitution, which expresses the will of the people, is above any law that merely expresses the will of the legislature and "if the two are in conflict, the law must yield and the constitution must rule." Rufus Choate Debates, Massachusetts Constitutional Convention, Vol. II, 799 at 803. The court "neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends." United States v. Butler, Law Ed., Vol. 80, 477 at 487.

In our opinion the meaning and scope of Art. III of our constitution is decisive of the principal question at bar. In construing this article it is our duty to examine all other provisions in the constitution that are intimately connected therewith, and to interpret them all in the light of those principles of constitutional government upon which the constitution itself rests and which it intends to reaffirm and perpetuate. When in that article the constitution orders that the powers of government be distributed among three departments, legislative, executive and judicial, it is the people who demand that such powers be distributed amongst departments of the kind and character that were known to them and by which alone they consented to be governed. This mandate, following the rule established by American constitutions, both State and federal, not only divides the powers of government among the three departments but implicitly commands, as a conclusion logically following from the separation decreed, that they shall be forever distinct and independent from each other. See Kilbourn v.Thompson, 103 U.S. 168, 190, 191. The underlying principle of government sought to be protected and made permanent by this article of the constitution was the independence of the three branches of government, so that by working harmoniously within their respective spheres they could maintain and "preserve . . . for posterity" a free government "for the protection, safety and happiness of the people." Rhode Island Constitution, preamble to Art. I and Art. I, Sec. 2. This separation and the consequent exclusive character of the power conferred upon each of the three departments is not to be lightly treated and cast aside as merely a matter of governmental mechanism. It is basic and vital in our system of government. A departure by direct or indirect means from this fundamental conception of the constitution will seriously affect the distribution of the powers of government as ordered by the people, and will also disturb the manner in which the people have a right to expect and demand that such powers shall be exercised, protected and preserved.

Article X, Section 1 provides that: "The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may from time to time ordain and establish." Section 2 of that same article as amended by Section 1 of Article XII of the amendments to our constitution, gives the Supreme Court "final revisory and appellate jurisdiction upon all questions of law and equity", and then provides that "the inferior courts shall have such jurisdiction as may, from time to time be prescribed by law." These two sections deal solely with the courts as an institution and as such institution is known in the history of the English law and in the jurisprudence of this country. Moreover, the term "judicial power" in Section 1 is to be interpreted in the light of the common law. This power includes ample jurisdiction in law and in equity to cover almost every matter, both civil and criminal, that can be litigated in a court of justice, and constitutes the very pivot upon which our entire judicial system operates. The Supreme Court and the inferior courts therefore, are the repository of all the judicial power of the State, whether a particular court is specifically named in the constitution or is ordained and established by the general assembly in obedience to its command. The mandate of the constitution to the general assembly is to create inferior courts in which, together with the Supreme Court the entire judicial power of the State will vest by force of the constitution.

A similar question arose in the case of Martin v.Hunter's Lessee, 1 Wheat, 304, in which Mr. Justice Story, dealing with the judiciary clause of the United States Constitution — which is almost identical with ours — at page 331, says: "It would seem, therefore to follow that congress are bound to create some inferior courts, in which to vest all that jurisdiction which under the constitution, is exclusively vested in the United States, and of which the supreme court cannot take original cognizance."

The general assembly of this State is at liberty to ordain and establish a system of inferior courts from time to time which in its opinion will adequately serve the people, and to prescribe for such courts the jurisdiction which any particular unit or units of that system shall exercise. But, notwithstanding this discretion given to it by the people for their common welfare and convenience, it still remains the duty of the general assembly to comply with this mandatory provision of the constitution and to create inferior courts. When this is done, all judicial power of the State is vested directly by the constitution, and not by any act of the general assembly, in the Supreme Court and in such inferior courts as the general assembly may have ordained and established. Upon this point the court, in State v. Noble,118 Ind. 350, at page 367, says: "The Constitution vests the judicial power in every instance, and the Legislature in none. The Legislature has no judicial power, and can confer none upon any person or tribunal. Under the Constitution it may establish courts, but it does not invest the courts with judicial power; the Constitution alone can do that, for all judicial power comes from that instrument and is vested by it in courts and judges." The advisory opinion, in 3 R.I. 299, rendered by this court to the general assembly on June 14, 1854, only twelve years after our present constitution was adopted, holds that: "An act to reverse and annul the judgment of the Supreme Court of Rhode-Island for treason, rendered against Thomas W. Dorr, June 25th, A.D. 1844", was unconstitutional. In speaking of the legislative and judicial power as distributed by the constitution, the court, at page 300 of that opinion, says: "Upon the General Assembly is conferred the exclusive power of enacting laws. Upon the Supreme Court and the Courts inferior thereto, tobe created by the General Assembly, is conferred the exclusive judicial power." (Italics ours.) We cannot agree, therefore, with the contention of the respondents that the district courts are not constitutional courts, but that they are merely legislative courts subject at all times to the will of the general assembly in every and all matters connected therewith.

Counsel for the respondents, as well as the attorney general, in their briefs and arguments, stress the "omnipotency" of the general assembly. The use of this word, in its broad sense and without qualification, to mean that the legislative department has unlimited power is unwarranted and in direct conflict with the very fundamentals of American constitutional government. If the general assembly has any such power, then the constitution is a mere pretense and the legislature might well say, as did Louis XIV of France: "I am the State." We admit that the general assembly is all powerful in the exercise of its legislative power and of such other powers as the people may have invested it with, but in all instances it acts under and not above the constitution. In ordaining and establishing inferior courts for this State, the general assembly is only carrying out the will of the people as expressed in the constitution. The courts which it in fact institutes are the courts demanded by the constitution and not mere creatures of the general assembly. We find no force in the argument that such courts are not constitutional courts because they are not specifically mentioned in the constitution. In our opinion, they are constitutional courts because they are ordained and established by the general assembly with constitutional sanction and in obedience to an express mandate of the constitution. Whether a court is a constitutional court or a mere legislative court depends upon the character of the power that the particular tribunal is called upon to exercise. The judicial power of the State can be vested only in the courts which the constitution itself creates to receive that power whether the system by which that power shall be exercised is specifically named in the constitution or not. Under the judiciary clause of the United States Constitution, which is almost identical with ours, the district courts, the circuit courts and possibly the commerce courts are considered as constitutional courts, even though not specifically named. There is no legal justification for holding otherwise under the constitution of this State.

In their attempt to maintain the contention that the inferior courts of this State are mere legislative courts, the respondents compare Art. III, Section 1 of the constitution of the United States, with Art. X, Section 1 of our constitution and argue that there is a presumption that the United States Constitution was kept in mind and probably referred to, when our constitution was framed; that our Section 1 fails to deal with the judges in the same or similar manner as does that same section of the federal constitution; that such omission was intentional, and that, therefore, it was the intention of the people, when they adopted our constitution, to make our inferior courts mere legislative courts to be dealt with in the future at the will of the general assembly. We have no doubt but that the United States Constitution was not only kept in mind but also referred to and studied, and that Art. X, Section 1 in our constitution was intentionally framed as it was. We cannot agree, however, with the respondents' conclusion which disregards the rest of Art. X and other pertinent provisions in our constitution.

If one inference is permissible from a comparison of the two constitutions, then all reasonable inferences arising from such comparison should be drawn, and any inference inconsistent with the real intent of the people, as therein expressed, should be discarded as unsound. For instance it is beyond question that the United States Constitution guarantees to the people of this country a republican form of government with the powers of the government distributed among three departments that are intended to be independent within their respective spheres. Marbury v.Madison, 1 Cranch 137. It is fair to assume that our constitution was adopted with a like intention. It is too late to try to read into that instrument now, almost one hundred years after its adoption, an inference that the people of this State intended to give the general assembly practically unlimited control over a coordinate branch of the government which they created for the protection of person and property. If the people intended anything so inconsistent with American constitutional government, they would have said so in plain and unmistakable language. We cannot subscribe to the idea that such power is to be found in the constitution by inference, especially since it directly affects and seriously impairs that harmonious coordination between the different branches of government which all the constitutions of this country, both federal and State, aim to attain. It is conceded that under the charter of Charles II of England the general assembly had almost unlimited power. In 1842, however, the people of this State adopted a written constitution, and it is that constitution and not the royal charter of 1663 that is controlling in these cases.

Let us see if our constitution, and especially Art. X. is as silent in respect to the protection extended by it to the judges in whom shall vest the judicial power of the State as the respondents would like to have us believe. Section 4 of that article reads as follows: "The judges of the supreme court shall be elected by the two houses in grand committee. Each judge shall hold his office until his place be declared vacant by a resolution of the general assembly to that effect; which resolution shall be voted for by a majority of all the members elected to the house in which it may originate, and be concurred in by the same majority of the other house. Such resolution shall not be entertained at any other than the annual session for the election of public officers; and in default of the passage thereof at said session, the judge shall hold his place as is herein provided. But a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor."

Turning to Art. XI, "Of Impeachments", we find that Sec. 3 provides that: "The governor and all other executive andjudicial officers shall be liable to impeachment; but judgment in such cases shall not extend further than to removal fromoffice. The person convicted shall, nevertheless, be liable to indictment, trial and punishment, according to law." (Italics ours.) A striking difference between the constitution of the United States and the constitution of this State is that the former makes no specific provision in Art. III, which deals exclusively with the judicial power, for the impeachment and the removal from office of any judge for an official misdemeanor, while the latter contains this express provision, stated in plain and comprehensive language, in the corresponding article of that instrument. If an omission in one instrument as compared with another is to be given great weight, we fail to see why an express provision of that instrument which is not in the other should not receive equal consideration, especially when it is conducive to and not disruptive of the normal functioning of independent departments under our scheme of government.

The respondents discount this important distinction and waive it aside by saying that Sec. 4 of Art. X of our constitution, in providing that "a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor", did not intend to prohibit the general assembly from removing the judges of the district courts during their term of office by any other method which it might see fit to employ. In order to support this contention, they resort to cumulate inferences in their endeavor to sustain the constitutionality of Chap. 2253, P.L. 1935. The respondents first draw the inference that because our Section 1 of Art. X is not the same as Section 1 of Art. III of the United States Constitution, such inferior courts are not constitutional courts. Then they again proceed by way of inference and attempt to destroy the force of the impeachment clause in the judiciary article of our constitution by arguing that this provision does not deny to the general assembly the power to remove, by any other method and without cause or hearing, a judge of an inferior court before his term of office has expired.

We cannot follow any such reasoning, and, in doing so, we do not rely upon the old maxim of "expressio unius", for we have little faith in the efficacy of that maxim as a safe rule of interpretation, especially in construing a written constitution. The important and all-controlling question to be determined is the real intent of the people themselves as expressed by the language of the constitution, rather than to infer a meaning by the application of artificial rules of construction. Inferences are dangerous, especially if multiplied, and are to be avoided when they bring about a condition that is in conflict with fundamental principles of constitutional government and anomalous in the judicial history of this State.

To support their second inference, the respondents point to that part of Sec. 4 of Art. X in our constitution, which refers to the judges of the Supreme Court, and argue that only those judges are protected against removal from office during their term of office, unless the general assembly proceeds as therein specified or by impeachment. We do not intend to express any opinion upon the import of this provision, nor do we deem it expedient to discuss its efficacy as a protection to the judges of this court, for its application as such is now a matter of common knowledge. Attention is called to the fact that this particular provision does not fix the term of the judges during good behavior, but only states that "each judge shall hold his office until his place be declared vacant" by a resolution of the general assembly not to "be entertained at any other than the annual session for the election of public officers." In view of the fact that when our constitution was adopted the judges of this court were elected annually, it may be that this provision may have been originally intended more as an aid to the general assembly for the expedition of its business by relieving its members from the annoyance incident to such an election, rather than as a protection to the judges themselves. Whether or not this is so, is immaterial. We believe that, in adopting said Sec. 4, the people of this State intended that a judge, exercising the judicial power of the State and whose term of office was fixed, should not be removed by the general assembly before the end of his term except by impeachment, unless the general assembly specifically reserved the power so to do. To the respondents' contention that Sec. 4 of Art. X cannot be construed to provide the only method for the removal of an offending judge, because it is confined to "official misdemeanor", our answer is that under Sec. 3 of Art. XI, "Of Impeachments", which omits any reference to "official misdemeanor", the governor and all other executive and "judicialofficers shall be liable to impeachment."

In Field v. People, 3 Ill. 79, quoted in the text of Cooley's Const. Lim., Vol. 1, (8th ed.) 139, the court says, at page 83, that "where the means for the exercise of a granted power is given, no other or different means can be implied as being more effectual or convenient." Mr. Justice Story, inPrigg v. Pennsylvania, 16 Pet. 539, at page 610, says: "And, perhaps, the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning as may fairly secure and attain the ends proposed."

The charter granted by Charles II to the Colony of Rhode Island and Providence Plantations was the fundamental law of this State until 1843. In England and here, under the charter, a judge could only be removed from office by address or impeachment. In our constitution the impeachment method was retained but no substitute was provided therein to take the place of a removal by address. Never, to our knowledge, since the Revolution up to the time when the present act was approved on June 3, 1935, did the general assembly ever remove or even attempt to remove, either under the charter or the constitution, any judge of a court invested with the judicial power of the State during his term of office by mere legislative decree, without cause and without hearing. There are but two instances in this State before the adoption of the constitution where the general assembly undertook to interfere with a judge of such a court during his term of office. The first instance occurred in 1786, when the general assembly summoned the judges, who had declared its acts unconstitutional, to appear before it and answer for their conduct. The respondents lay great stress upon the importance of this case as a precedent of legislative power to do what the general assembly did in 1935, but we find it no authority for any such proposition.

Our conclusions in the cases at bar are illuminated by the very able opinion of Ames, C.J., in Taylor v. Place,4 R.I. 324, which stands as a monument in the constitutional history of this State. As we have drawn inspiration from this case, we prefer to refrain from disjointed quotations and to leave it to those in interest to read that opinion in its entirety, with special reference to the discussion of the powers of government, the position of the courts in our scheme of government, and the value of previous legislative practices in interpreting our constitution. For instant purposes, we will make one exception. In refuting the argument that the general assembly had exercised some judicial power before the constitution was adopted, and that, therefore, it continued to have that power after its adoption, Chief Justice Ames, at page 361 of that opinion says: "If, indeed, the unconstitutional exercise of a power, for so short a period as thirteen years, were to weigh with the court in so plain a case, it must be upon the strange ground that an usurpation of power in derogation of the constitution, always, of itself, affords a constitutional justification for the usurpation." See also Myers v. UnitedStates, 272 U.S. 52, at page 170, 171.

We are not concerned with the interpretation that the respondents may place upon the proceedings against the judges in 1786. But we are bound to take notice that those judges were given a chance to appear before the general assembly and that, after appearing and defending their position, they were not removed. We fail to see how this occurrence can be cited as a precedent for what the general assembly did in 1935.

The other instance of interference by the general assembly with a judge during his term of office was in the case of John Harris in 1809. In that instance not only were charges preferred against the judge, but every effort was made to give him a hearing up to the point of issuing a capias for his appearance. When he failed to appear, Harris was suspended but notremoved from office. Again we fail to see how this case can be of any assistance to the respondents. Were we inclined to indulge in inferences, we might be tempted to say that in both these cases the proceedings were more consistent with impeachment than with the exercise of an unrestrained power in the general assembly to remove a judge from office during his term. We prefer, however, to reach our conclusions from those recognized rules of construction that Story and Ames followed and which Cooley has so clearly stated. If we apply these principles in interpreting Sec. 4 of Art. X and Sec. 3 of Art. XI, we are forced to the conclusion that a judge, with a definite term and of a court instituted with constitutional sanction, can have his term abridged by the general assembly only by impeachment, unless the general assembly expressly reserved the power to act in some other manner when it fixed the term for that office. To construe the above impeachment provisions otherwise will strip these provisions of all force, it will harmfully disturb the balance of the powers of government as distributed by the constitution, and it will place the judiciary under the unrestrained domination of the general assembly and so undermine its general efficiency. The construction urged by the respondents amounts to saying that when the people divided the powers of government under the constitution among three separate and apparently independent departments, they in reality vested the legislative branch with power to control the judges, at least of the inferior courts, by the mere exercise of the legislative will. This thought is so foreign to American constitutional government and so unjust to the people of this State both in 1842 and 1935 that we must reject it without equivocation.

The respondents further contend that because Section 1 of Art. X of the constitution provides for "such inferior courts as the general assembly may, from time to time, ordain and establish", an implied power is thereby granted to the general assembly to remove the judges of those courts whenever it chooses. We need not repeat what we have previously stated in connection with other matters that are pertinent upon this point. The power given to the general assembly by Section 1 is to "ordain and establish" inferior courts from time to time. No department can organize itself. The constitution provides in detail for the organization of the legislative power, but it delineates only the outlines of the judicial structure. The general assembly is, therefore, charged with the specific duty of providing the necessary details for that structure in which the judicial power of the State will vest by force of the constitution and not by any act of the general assembly. InFloyd v. Quinn, 24 R.I. 147, where only a question of jurisdiction was in issue, this court, at page 149, says: "A constitution does not usually deal with details. . . . Hence nothing is determined by our constitution beyond the vesting of complete judicial power in the courts and the requirement that there shall be one Supreme Court."

Section 1, Art. X, of the constitution directs the general assembly to "ordain and establish" inferior courts. That section deals only with the creation of a system and not with men. As commonly understood, the word "ordain" means "to institute", and the word "establish" means "to make stable or firm; to fix immovably or firmly." Webster's New International Dictionary. The word "alter", which is found in similar clauses in other State constitutions, was a word in general use and its meaning well understood long before our constitution was adopted. This word was, without doubt, seriously considered and intentionally omitted from our constitution to avoid the possibility that, in the future, it might permit the general assembly to weaken and impair the stability of the inferior courts which it was bound by the constitution to ordain and establish. The absence of this or some similar word in Section 1 is strong proof of the kind of power that the people intended the general assembly to exercise in performing its delicate mission.

While the power of the general assembly to ordain and establish inferior courts is a continuing power, yet it cannot exercise that power inconsistently and at will, in utter disregard of the extent and the manner in which it may have already exercised that power. When the general assembly has fixed a definite term for a judge of an inferior court, without expressly reserving to itself the power to abridge that term, an inferential authority to remove at pleasure cannot be deduced. The existence of a defined term in itself negatives such an inference and implies a contrary presumption, that is, that the incumbent shall hold his office to the end of his term, subject to removal as provided for in the constitution. No case exactly in point has come to our attention, although a few scattered decisions of an analogous nature may be found. In Phy v.Wright, 75 Ore 428, one Henry was elected a judge in 1910, under a constitutional provision similar to our Section 1, Art. X, but which further provided that the judges of all courts should be elected for a term of four years. That same year an amendment to the constitution was adopted which increased the term to six years. In 1914, the petitioner was elected to the office held by Henry. Upon being refused a certificate of election, on the ground that the constitutional amendment changed the term from four to six years and that Henry was still in office by virtue of that amendment, the petitioner brought mandamus. The court held that, as the amendment took effect during Henry's term of office, it did not extend his term. In Strozer v. Wright, 54 Ga. 391, the governor, acting under the power given him by the constitution of that State to appoint a judge of the Circuit Court for either four or eight years, first appointed the plaintiff for a term of four years and shortly thereafter appointed him for a term of eight years. Both appointments were duly confirmed by the senate. The court held, at page 397, that when the governor "had exercised his constitutional power of appointing a judge . . . for the term of four years, his constitutional power in relation to the appointment of a judge for that circuit during that period of time, (unless in case of a vacancy,) was exhausted. The governor had no more constitutional power to recall that appointment for four years, and appoint Judge Strozer for either years than he would have had if he had appointed him for eight years, and afterwards recalled that appointment, and appointed him for four years."

In State, ex rel. Taylor v. Mount, 151 Ind. 679, the constitutional vested the judicial power of the State in a supreme court, circuit court and such other courts as the general assembly may establish. Acting under this provision, the general assembly created an appellate court with an existence limited to six years from March 1, 1891, and with judges to be elected to serve for that same period. In 1897, the general assembly extended the court's existence for four years from January 1 of that year and also extended the term of office of the judges for that same time. The court held that the provision in the statute of 1897, which extended the term of the judges, was void as beyond the power of the legislature. At page 686 of that opinion, the court says: "But if the legislature could appoint, or continue in office after the expiration of the term for which they have been elected, the judges of any court, that would at once, to that extent, subject the judicial to the control of the legislative department."

Inferior courts must have judges to administer the judicial power vested in them by the constitution. It is our belief, therefore, that although the general assembly is free under our constitution to use its discretion in fixing the term of office for the judges of inferior courts, yet having exercised that discretion without reservation, the general assembly exhausts its power under the constitution in respect to such term until the end of that term or unless the court system itself should be changed for the better exercise of the judicial power. In order to warrant an implied power from the power granted, the power sought to be implied must be necessarily incidental to the power granted and conducive to its beneficial exercise. McCulloch v.State of Maryland, 4 Wheat. 316. The power to arbitrarily vacate the office of a judge of an inferior court during his term of office is not necessary or incidental to the power of ordaining and establishing the structure for those courts, and, more important still, the exercise of such power is not conducive to the beneficial exercise of the power granted, but is detrimental and destructive thereof. The judiciary being an independent branch of the government under the constitution, it does not lie within the power of the general assembly to destroy its independence by indirect means under the cloak of an implied power that is supported only by skillful argumentation. We are firmly of the opinion that the general assembly has no such power without clear and express constitutional authority.

The able briefs of the parties and the attorney general, as well as our own independent search of the authorities, have failed to bring to our attention any case which holds that a judge of a court vested with the judicial power of the State, directly or indirectly by the constitution, can be summarily removed from office during his term at the pleasure of the legislature, so long as there is no change in the court system itself. Counsel for the respondents have cited to us a large number of cases, which upon examination prove either inapplicable or clearly distinguishable. The cumulation of authorities may be impressive, but it is not convincing unless such authorities are pertinent. In their exhaustive review of our own decisions they cannot point to any case which deals with the judicial power of the State other than Taylor v. Place,supra, which held that, under the constitution, the general assembly had no judicial power and, therefore, could exercise none. Statements of legislative power made in connection with subject matter entirely different from that now before us, or pure dicta expressed in rather loose language, should not be given any force when dealing with so fundamental a question as the one presented in these cases. Those statements and dicta should be read and construed strictly in connection with the specific question actually before the court and to which the court directed both its attention and its opinion. With the exception above quoted, all of our cases deal either with the power of the general assembly in matters of jurisdiction, which power is specifically granted to it by Sec. 2 of Art. X of the constitution, as amended, or with its power to control municipal bodies, administrative boards and offices created by the general assembly for the exercise of purely governmental functions. In no instance do our cases deal with the power of the general assembly to control the courts through its judges by interfering with their term of office before the expiration of such term. We concede that the general assembly has broad, if not full, power in the former instances, but we find no constitutional warrant for the exercise of any such power in the latter instance.

The courts that are vested with the judicial power of the State are created by the constitution, even though they are instituted or ordained and established by the general assembly. It needs no argument or citation of authority to show that the general assembly can exercise a power specifically granted to it by the constitution. Likewise, there is no doubt but that the general assembly has the power to deal at pleasure with purely administrative bodies or tribunals, created by it solely to facilitate the functions of government and in which no part of the judicial power of the State is vested under the direct mandate of the constitution. Special legislative tribunals or boards, even when given the power to perform judicial or quasi-judicial functions, do not possess any common law jurisdiction and consequently are not invested with any part of the judicial power of the State. These agencies, some of which are at times called legislative courts, are created by the general assembly for governmental purposes by virtue of the general right of sovereignty and not under or by virtue of the judiciary clause of the constitution. A legislative court, in its true sense, is a specialized court, administrative in character, not dealing with the judicial power of the State. See AmericanInsurance Co. v. Canter, 1 Pet. 511. The district courts are clearly not of this kind or character. It is true that they are brought into existence by legislative enactment and that because of this fact they may be loosely termed statutory courts, but when they are so instituted the judicial power of the State is vested in them by the constitution, which makes them constitutional courts in the strict sense of that term.

The kind of power vested in a court, and not the way in which it is instituted or the extent of its jurisdiction, determines whether or not a court is a constitutional court. If an inferior court is vested with any of the judicial power of the State by Sec. 1 of Art. X, it is a constitutional court and not a creature of the general assembly to be dealt with summarily and at will by that body, even though it may have been instituted by statute. The respondents refer us to Boss v. Sprague, 53 R.I. 1, and direct our attention to the statement on page 3 of that opinion which says: "The Superior Court is statutory in its origin and its powers are defined by statute and can not be extended by judicial interpretation." Disregarding both the context and the subject matter in issue, they argue that this statement is a judicial determination that all inferior courts in this State are merely legislative courts. This argument is unwarranted and unjust to the court. In that case the court was dealing with a question of jurisdiction, which the general assembly could control by virtue of Sec. 2, Art. X of the constitution as amended, and not with the judicial power of the State under Section 1 of that article. When the court there says that: "The Superior Court is statutory in its origin", it was fully justified in saying so because the Superior Court, like the district courts, is instituted by legislative enactment as a system with well-defined jurisdiction at common law. Once instituted, we again repeat that those courts are vested with the judicial power of the State by the Constitution and not by the general assembly, which is powerless in this respect. Following the words we have just mentioned, the sentence, upon which the respondents rely, says: ". . . and its" (the Superior Court's) "powers are defined by statute." In order that we may understand the true sense in which the word "powers" was used in this phrase, we must not forget that the court was then concerned only with a question of jurisdiction.

In dealing with such specific question, it never could have anticipated the distortion which is now sought to be imposed upon that sentence and upon the word "powers" in particular, otherwise it would have directly qualified that word in some way. However, both the issue then at bar and the context make it clear that the word "powers" refers to the jurisdictional powers of the Superior Court and not to the judicial power with which that court was invested by the constitution. The respondents are entitled to no advantage through misinterpretation.

The respondents in their briefs and arguments refer us to Sec. 10 of Art. IV of our constitution which reads: "The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution," and contend that the general assembly had the power to enact Chap. 2253, P.L. 1935, under this section. In support of their contention they cite the recent opinion of this court to the governor, in which this unique provision of our constitution was considered in connection with the power of the general assembly to call a constitutional convention, without first submitting the question of the necessity for calling such convention to the people. In re Opinion to the Governor, 55 R.I. 56, 178 A. 433. Previous to 1843, constitutional conventions had been held a number of times at the direct call of the general assembly. Furthermore, in the opinion of the majority of this court, the mere calling of such a convention, with proper and explicit limitations, was in accord with Section 1 of Art. I of the constitution and not in violation of any settled principle of American constitutional government. It is one thing to call a constitutional convention, quite a different thing to draft a constitution, and a far different thing from either of these two to construe the intent of a constitution that has been adopted by the people. In each case the constitutional power involved is different.

A power whose existence is invoked by reason of Sec. 10, Art. IV, must combine two necessary and indispensable elements: the power must have been previously exercised by the general assembly, and it must not be prohibited by the constitution. The power to remove a judge of any court during his term of office, unless such power is specifically reserved, has never, to our knowledge, been previously exercised by the general assembly, at least since the Revolution. An abortive attempt to exercise such a power under very different circumstances from those in the instant cases, as in the judges' case of 1786, previously discussed in this opinion and which resulted in no affirmative action by the general assembly, is no proof, but rather a denial, of the existence of any such power under the provisions of that section. Again, even though there is no prohibition in express terms in our constitution that the general assembly shall not exercise the particular power in question, yet the existence of a power that is inconsistent with our framework of government and in conflict with its well-defined purposes is denied by that instrument as clearly as if it was stated in direct language. The distribution of the powers of government among the three departments named in Art. III of our constitution is an explicit, though implied, denial of any power which is inconsistent with such distribution. What the general assembly tried to do when it enacted Chap. 2253, P.L. 1935, is not supported by the previous exercise of any such power, and it violates Art. III by assuming a power which, in its exercise, will seriously and adversely affect an independent branch of the government.

The existence of the power claimed by the respondents for the general assembly, by implication, from the provisions of Sec. 10, Art. IV, is denied by the practice followed by the general assembly itself up to 1935. Before 1872 the magistrates courts were composed of judges, many of them laymen, elected annually by the cities and towns from among the local justices of the peace. Chapter 185, Gen. Stat. 1872, reorganizes this system by giving to it the name of justice courts and by making the election of its judges obligatory on the general assembly, in the case of certain cities and towns, and on the local authorities in others. Section 4 of that chapter provides that a justice of that court shall "hold his office for three years, unless sooner removed bythe election of some other person to fill his place." (Italics ours.) The present district court system, under which all the judges were elected by the general assembly until the appointive power was recently given to the governor, was instituted by Chap. 597, passed on May 27, 1886, where in Secs. 3 and 4 it is provided that the judges and clerks are to hold office for three years "unless sooner removed by the election and qualification of some other person to fill his place." (Italics ours.) Both in 1872 and in 1886, the general assembly retained control of the three-year term which it set for the judge and clerk by an express reservation, and in 1886 it restricted such reservation of its power of removal during the term by providing that any attempted removal of a judge or clerk was ineffective until a successor was elected and qualified.

By resorting to a mathematical computation, based on a three-year period and starting in 1872, it is argued that because Sec. 57, Chap. 597, P.L. 1886, provides that: "For the purpose of electing justices and clerks of the district courts this act shall take effect from and after its passage". therefore, the judges of the justice courts were legislated out of office in 1886, as the district court judges were in 1935. We do not know, nor is it important to our point of view for us to ascertain, when the judges were in fact elected under the hybrid system of justice courts as instituted in 1872. In any event, such contention is unsound in that it completely disregards the power of removal expressly reserved to itself by the general assembly in Sec. 4, Chap. 185, Gen. Stat. 1872, which continued in force until May, 1886. There is no reservation of any such power by the general assembly in Chap. 330, G.L. 1923, as amended by Chap. 1690, P.L. 1931, to abridge the definite term of six years, advisedly fixed by it without qualification, for a judge or clerk of the District Court and under which the petitioners were appointed, qualified and served.

The reserved power of removal that appears in the statutes of 1872 and in the district court act of 1886 was eliminated from Sec. 3, Chap. 8 of the Judiciary Act of 1893, where the term for both judges and clerks of the district courts is set at three years without reservation. In this relinquishment by the general assembly of its previously retained power to remove a judge or clerk during the term, we see a clear intention on the part of the general assembly to give stability to the judiciary of the district courts by divesting itself of that power. It is pertinent to note that the general assembly did not then remove the judges and clerks who were in office by calling for a new election to such offices, as it might well have done under its power as reserved in Chap. 597, P.L. 1886.

In 1905, when the entire judicial structure of the State was revised by the Court and Practice Act, Sec. 115 of Chap. 9 of that act specifically provides that: "The district court in each judicial district shall be held by the justice now in office until the expiration of the term for which he was elected." The next instance of legislation affecting the judges of the district courts was in 1931, when by Public Laws Chap. 1690, the term of the judges was extended from three to six years. It is more than a mere coincidence that here again the act is expressly limited to take effect at the expiration of the term of the then incumbents. Since the creation of the district court system, the general assembly has never, before 1935, attempted to interfere with the judges of that court during their term of office. In the face of such interpretation of its own power by the general assembly, and for the other reasons above stated, we must reject as unsound the respondents' contention that the power to remove the judges of district courts is one of the powers reserved to the general assembly by Sec. 10, Art. IV.

As we have already indicated most, if not all of the cases from other jurisdictions cited by the respondents are not pertinent to the issues at bar. They deal with administrative officers or functions, or with legislative control of jurisdiction and procedure, or with special courts established for local municipal government, or with statutes passed with express constitutional warrant. The cases of People v. Carr,86 N.Y. 512; Kenny v. Hudspeth, 59 N.J.L. 320, and ThePeople v. Olson, 245 Ill. 288, are illustrative of these cases.

In the Carr case the court upheld the statute on the ground that, although the given term of a surrogate judge was six years, he came under the constitutional provision that he should continue in office until the expiration of the term "or until the legislature should otherwise direct." In the Hudspeth case the court bases its opinion on the provision in the New Jersey constitution which vests the judicial power in certain specified courts "and such inferior courts as now exist and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish as the public goodshall require." (Italics ours.) The Olson case concerns a judge of the Municipal Court of Chicago. In the later case ofPeople v. Gill, 358 Ill. 261, the court says that the true basis for the decision in the Olson case is the power of the legislature to organize and make full provision for the local municipal government of the city of Chicago. These cases and others of a similar nature give no assistance but rather tend to confuse.

The weight of a decided case as an authority depends upon its applicability and reasoning. Isolated statements from decisions which deal with entirely different issues, especially when such statements are culled from language used in dicta and then only by way of illustration, are not pertinent, authoritative pronouncements on an issue like the one before us. Quotations in support of Chap. 2253 from the following cases are open to this criticism. In Conner v. City of New York, 2 Sanford, 355, affirmed in 5 N.Y. 285, the issue was the right of a county clerk to the fees and emoluments of office which were denied him by a statute that changed the previous practice; in Newell v. ThePeople, 7 N.Y. 9 the court was concerned with specific constitutional provisions regulating the appropriation and expenditure of public funds for construction work by a State agency; in Farwell v. City of Rockland, 62 Me. 296, the question before the court was whether the board of aldermen of the City of Rockland could reduce the salary of a municipal court judge during his term of office; in Prince v. Skillin, 71 Me. 361, the action of a canvassing board in connection with the election of a county commissioner was in question; and in Ex parte Lambert, 52 Ala. 79, the sole issue was the power of the legislature to reduce the salary of the "Commissioner of Industrial Resources."

The obvious purpose of detached quotations from these cases, without reference to the issues there involved, is to first establish the general proposition that persons holding an office created by the legislature may be dealt with at will by that body, and then to argue that the District Court judges in these cases are subject to like control. Those who advance this argument overlook the important distinction between purely administrative officers and the judges of a court with common law jurisdiction. The former are a part of the agencies of government; the latter are an indispensable element of an independent branch of the government which is invested by the constitution with the judicial power of the State. Administrative officers for governmental purposes and judges of courts with common law jurisdiction do not fall in the same category and should not be similarly treated.

Another class of cases to which our attention has been directed by the respondents is where, under the power to ordain and establish courts, the legislature merges or abolishes one or more units of a court system, for the public good, during the term of office of a judge of the court so merged or abolished. There is a decided conflict in the authorities as to whether this can be done at all, and even those cases that support the proposition will only sustain such action where it is free from evasion and subterfuge. It is unnecessary for us to further discuss these cases as Chap. 2253, P.L. 1935, in no way changes, or affects, the court structure of the district court system.

The respondents rely upon two early Missouri cases — State v. Mann, 41 Mo. 395, and State v. Pinger, 50 Mo. 486 — which the petitioners in their brief say "indicate a view at variance with our contention. The opinions are, however, so meager that it is not possible to determine upon what reasoning the court bases its decrees." Upon reading these terse opinions, which permit the removal from office of a county judge without disturbing the office itself, we found it hard to believe that the Missouri court would dismiss an important constitutional question, if there were one, in so summary a manner. An examination of the Missouri constitution then in force — Missouri Gen. Stat. 1866, page 20 — clearly explains the court's action. Section 1 of Art. VI provides that: "The judicial power, as to matters of law and equity, shall be vested in a supreme court, in district courts, in circuit courts, and in such inferior tribunals as the general assembly may, from time to time, establish." Section XXIII of that same article provides for the establishment of a county court in each county, "for the transaction of all county business" and probate matters. It seems to us that the county courts were specialized courts in the nature of administrative bodies, without equity or common law jurisdiction, and that, not being invested with any of the judicial power of the State, as defined in Section 1 of Art. VI, they were mere creatures of the legislature and, therefore, subject to its control at all times. Upon this view of such courts, we can readily explain why the Missouri court treated theMann and the Pinger cases with the brevity that it did. The respondents are, therefore, left without any authority known to us which supports their contention that the enactment of Chap. 2253, P.L. 1935, is a valid exercise of legislative power by the general assembly.

In order to minimize the importance of the district courts in our judicial system, the issue of dual office holding and the fact that the office of a judge or clerk of such courts is a "part time job" has been injected into this case. Detailed reference by description, if not by name, is made to men who, while acting as district court judges or clerks, served either as members of the general assembly or as clerks of important committees of that body. The constitutional question before us cannot be solved by referring to the legitimate activities of men, both living and dead, who administered the judicial power of the State with ability and unquestioned integrity, even though they may have been connected with the general assembly. Questions of policy, and of dual office holding in particular, are for the people and not for us to determine.

It is further argued that, as the district courts have no equity jurisdiction, as they cannot issue prerogative writs, as they sit without juries, and as on appeal from that court a case is tried de novo, such courts are really of minor, if not negligible, importance. We fail to see any force in this argument. In these cases we are concerned solely with the character of the power that the district courts exercise, and not with the district court system or its jurisdictional limitations. It cannot be denied that the district courts have substantial common law jurisdiction in both civil and criminal matters. The person and property of every individual within our territory is subject at all times to the judicial power of the State vested in these courts by the constitution within the limits prescribed by the general assembly.

The case of McCully v. State, otherwise known as theJudges' Cases, 102 Tenn. 509, (1899), cited by neither party in their briefs, came to our notice in the course of our own investigation. In that case, the judge of the Criminal Court of the eleventh judicial circuit was removed from office by a resolution of the general assembly passed under Sec. 6, Art. VI of the Tennessee constitution. The resolution of removal recited that economic reasons were the only cause for such action. Preceding the adoption of the removal resolution, the general assembly had passed an act abolishing the Criminal Court of the eleventh judicial circuit but the act was expressly limited not to take effect until the expiration of thirty days from the final adjournment. McCully was tried and convicted for an infraction of the liquor laws before the judge who was removed, but who continued to act subsequent to the removal resolution but prior to the time when the abolishing act took effect. On appeal, McCully questioned the jurisdiction of the trial court.

Article VI, Section 1 of the Tennessee constitution provided that: "The judicial power of this State shall be vested in one Supreme Court, and in such Circuit, Chancery, and other inferior courts as the Legislature may from time to time ordain and establish." Section 4 fixed the term of a circuit judge at eight years. Section 6 of that same article provided that a judge might be removed from office by a concurrent vote of both houses of the general assembly after notice, containing a copy of the cause for removal, to the judge before any such vote was taken. It further provided that the names of the members of both branches of the legislature voting for or against the judge, together with the cause or causes of removal, should be entered on the journal of each house respectively.

The different opinions rendered by the individual members of the court cover some ninety pages of the official report. The real question about which the judges disagreed and fully stated their reasons therefor was whether the power to abolish existing courts, and to increase and diminish the number, is included in the legislative power to ordain and establish them. This part of the different opinions has no application to the cases at bar. But the construction that four of the five members of that court place upon the constitutional power of the legislature to remove by concurrent resolution (pp. 512-530) is important. In deciding the question before it, the court does not rely upon the constitutional provision in respect to the judge's term, but reached its conclusion solely by a construction of the express power of removal in Sec. 6. It holds that, even though the power of removal is granted to the legislature in such broad language by the constitution, it was not unlimited and could not be exercised except for legal cause personal to the judge. This construction of the removal clause in the Tennessee constitution furnishes a close analogy to the impeachment clauses in our constitution. In its discussion of this question, at page 529, the court says: "If the Legislature has such power as is contended for in the construction of this clause of the Constitution, the judiciary would no longer be an independent and coordinate branch of the government, but a mere servile dependency. But it is said, conceding the Legislature had no power to remove for the cause assigned, its action is nevertheless final and not subject to review by the judiciary. If this is so, the distribution of the powers of government and vesting their exercise in separate departments, would be an idle ceremony." If the legislature of Tennessee, acting under a power of removal by resolution so broadly stated in the constitution, had no power to remove for reasons of economy a judge from an office that continued in existence, we fail to see how the general assembly of this State had the power, in the absence of any expressed constitutional warrant, to remove the judges of all our district courts by a legislative act which left the district court system intact.

We see no reason to make any distinction between the judges and clerks of the district courts under the circumstances presented to us in the instant cases. Section 10, Chap. 330, G.L. 1923, specifically authorizes the clerks of such courts to act as judges under certain specified conditions. That same section also provides that in certain enumerated instances, their duties shall be temporarily performed by the judges of the courts. One of the objects of this section is to expedite the hearing and decision of cases. While the clerks are responsible for administrative and clerical duties in connection with the courts, yet they are enabled by legislative designation to try and determine any case at common law that falls within the jurisdiction of such courts. When so acting, they are invested with the judicial power of that court by the constitution, and not by any act of the legislature that may have designated them as one of the means through which that power might be exercised.

Chapter 2253, P.L. 1935, is in itself a most extraordinary statute. After diligent search we have failed to find one which in any way resembles it. In reading this act we must keep in mind that it was approved June 3, 1935. Section 1 by different paragraphs, but using the same language, amends Secs. 3 and 4 of Chap. 1690, P.L. 1931, which extended the term of the judges and the clerks of the district courts from three to six years at the expiration of their then term of office, as follows: "Sec. 3.In the month of January in the year nineteen hundredthirty-two and in the month of January in every third year thereafter, the governor, with the advice and consent of the senate, shall appoint justices of the district courts, and an associate justice of the district court of the sixth judicial district, to hold office for the three years commencing on thefirst day of February next following their appointment." (Italics ours.) The amendment of Sec. 4, Chap. 1690, P.L. 1931, which refers to the clerks of the district courts, is expressed in the same manner.

We fully appreciate that it is our bounden duty to construe the statute so as to give it an effect and force that is not obnoxious to constitutional prohibitions, and that in doing so it is to be presumed that the general assembly did not intend absurdity, inconvenience, or injustice. In applying this test, we are faced with a number of considerations which we are not at liberty to disregard in order to maintain its validity. The statute is neither procedural nor remedial. Its subject affects the administration of the law and the orderly functions of government in plain, direct and mandatory language; it commands certain actions and prescribes the manner in which they shall be done; and it is a retrospective grant of power to be exercised by the governor at a stated time, in the past, which is impossible of observance. A statute of this type, especially when it contains a grant of power, is to be strictly and literally construed. A party seeking the benefit of such a statute can take nothing by intendment, for the general assembly is to be held to mean what it has plainly said. It is not within the power of this court to judicially sanction a meaning different from that which the words clearly imply in order to sustain its validity. See Sutherland, Stat. Const. Vol. 2, (2d ed.), Chap. XIV.

Chapter 2253, approved in June, 1935, commands that in January, 1932, "the governor . . . shall appoint" the judges and clerks of the district courts for a term of three years commencing February 1, 1932. But in January, 1932, within the time set by law, another governor, acting in obedience to Sec. 2, Art. VII, of our constitution, which says that: "The governor shall take care that the laws be faithfully executed," had in fact and in compliance with the provisions of Chap. 1690, P.L. 1931, appointed the judges and clerks of the district courts for a term of six years commencing February 1, 1932. Reading Chap. 2253 as expressed and giving to its words their plain and literal meaning, as we are bound to do, we cannot conceive how a governor in 1935 can perform an act in 1932, unless, by some unknown means, time that has passed can be recalled. Neither can we find any justification for the general assembly to invalidate an official act of a former chief executive, duly performed in accordance with law, by a retrospective grant of power that is impossible to exercise as expressed. Chancellor Kent, in Vol. 1, page 455, of his Commentaries, says that retrospective statutes "are very generally considered as founded on unconstitutional principles, and consequently inoperative and void." Chapter 2253 is not only retrospective and impossible of performance according to its literal expression, but it also attempts to nullify an act of a former governor, performed by him in obedience to Sec. 2, Art. VII of our constitution and in strict compliance with the provisions of Chap. 1690, P.L. 1931, as the chief executive of an independent branch of the government. In our opinion, the statute now before us is the type of legislation which is unconstitutional as a retrospective statute, and falls squarely within the reservation that we so clearly made in The Prata Undertaking Co. v. State Board ofEmbalming, 55 R.I. 454, at page 470.

We repeat what we said earlier in this opinion, that a statute should not be declared unconstitutional unless those who urge its unconstitutionality clearly establish that fact beyond a reasonable doubt. In these cases, it is our opinion that the petitioners have sustained this burden.

After long reflection, with a full realization of the delicate and important duty before us, we are constrained to conclude that Chap. 2253, P.L. 1935, is invalid as a statute because of uncertainty and impossibility of observance, and further, that it is unconstitutional in that it is inconsistent with and violative of Art. III, Art. X, Sections 1 and 4, and Art. XI, Sec. 3 of the constitution of this State.

We are of the opinion that the petitioners were illegally ousted from their respective offices as judges and clerks of the district courts, and that, therefore, the prayer of the petitioner in each case should be granted.