*317

(40 Sup.Ct.)

time in the courts of the state, including such matters as travel and attendance of the parties, fees for copies of the case, and abstracts for the hearing, compensation for the services of referees, auditors, masters, and assessors, and many other matters, not embraced in the fee bills, since passed by Congress."8

his claims, or that for other reasons only a part or none of the costs should in fairness be allowed. 10 This rule of practice established by long usage is confirmed by the language of section 983 of the Revised Statutes. It would, therefore, be held to prevail over a rule, if any, to the contrary established in the courts of the state. But the Neither the Act of February 26, 1853, c. 80, practice in the courts of New York appears 10 Stat. 161, Rev. Stats. § 983 (Comp. St. § to be in this respect in entire harmony with 1624), nor any later act of Congress or rule that of the federal courts. 11 In Whipple v. of court, deals expressly or by implication Cumberland Cotton Manufacturing Co., suwith the subject of taxing as costs the ex-pra, the expense of the survey ordered by the pense of an auditor. The practice, if any, court was imposed by it equally on the two governing in this respect the courts of New parties; and the same disposition was made York would, therefore, be followed in the fed-in Primrose v. Fenno, supra, where the audieral courts. See Huntress v. Town of Epsom tor had been appointed at the instance of the (C. C.) 15 Fed. 732. But, so far as appears, court without objection by either party. But the preliminary hearing before an auditor in aid of jury trials is not a part of the judicial machinery of that state. The nearest analogy to it is the reference had in actions at law on long accounts as a substitute for a jury trial. The expense of the compulsory reference in such actions is so taxable. Code Civ. Proc. § 3256. As there is no statute, federal or state, and no rule of court excluding auditors' fees and the expense of his stenographer from the items taxable as costs, no reason appears why they may not be included, like other expenditures ordered by the court with a view to securing an intelligent consideration of a case.

cretion, it has been uniformly held that in actions at law the prevailing party is entitled to costs as of right (compare United States v. Schurtz, 102 U. S. 378, 407, 26 L. Ed. 167, 219), except in those few cases where by express statutory provision or by established principles costs are denied. It has also been generally held that this right to costs of the prevailing party in actions at law extends to the entire costs in the trial court, and that the court is without power to make an apportionment based upon the fact that the prevailing party has failed in part of

Shreve v. Cheesman, 69 Fed. 785, 789, 16 C. C. A. 413. See also Scatcherd v. Love, 166 Fed. 53, 91 C. C. A. 639; Michigan Aluminum Foundry Co. v. Aluminum Co. of America (C. C.) 190 Fed. 903, 904.

For instance, Rev. Stat. § 968 (Comp. St. § 1609), denying costs to a plaintiff or petitioner who recovers less than $500.

*319

in Houlihan v. Corporation of *St. Anthony (C. C.) 173 Fed. 496, and 184 Fed. 252, 106 C. C. A. 394, where the auditor was appointed by consent of the parties, the same court taxed both the auditor's and the stenographer's fees against the losing party, holding that it had discretion, if it was not obliged to do so; and a petition for writ of certiorari was denied by this court. 220 U. S. 613, 31 Sup. Ct. 717, 55 L. Ed. 609.

[14] Although the order was erroneous in declaring that the expense of the auditor shall, instead of abiding the result of the action, be paid by one or both of the parties in accordance with the determination of the trial judge, the error does not require that either of the extraordinary remedies applied for here be granted. If the petitioner deems himself prejudiced by the error he may get redress through application to the District Court for a modification of the order, or after final judgment on writ of error, from the Circuit Court of Appeals. In re Morrison, 147 U. S. 14, 26, 13 Sup. Ct. 246, 37 L. Ed. 60. The petition for writs of mandamus and/or prohibition is Denied.

Mr. Justice MCKENNA, Mr. Justice PITNEY, and Mr. Justice McREYNOLDS dissent.

10 Crabtree v. Neff, 1 Bond, 554, Fed. Cas. No. 3,315; Hooe v. Alexandria, 1 Cranch, C. C. 98, Fed. Cas. No. 6,667; Bartels v. Redfield (C. C.) 47 Fed. 708; Trinidad Asphalt Paving Co. v. Robinson (C. C.) 52 Fed. 347; United States v. Minneapolis, etc., Ry. Co. (D. C.) 235 Fed. 951, 953; West End St. Ry. Co. v. Malley, 246 Fed. 625, 627, 158 C. C. A. 581; Sears, Roebuck & Co. v. Pearce, 253 Fed. 960, 962, 165 C. C. A. 402; Wheeler v. Taft (C. C. A.) 261 Fed.

978.

11 The general rule that in actions at law the prevailing party is entitled as of right to the taxable costs prevails in New York; and there is a further provision that when plaintiff demands a judgment for a sum of money only, the plaintiff, if prevailing, is entitled to the costs whether the suit be one at law or in equity. Murtha v. Curley, 92 N. Y. 359; Norton v, Fancher, 92 Hun, 463, 36 N. Y. Supp. 1032.

(Argued March 5, 1920. Decided June 1, collect taxes on incomes, from whatever source

22 (7)-DIMINUTION OF SALARY plaintiff in error. PROHIBITED BY CONSTITUTION.

Const. art. 3, § 1, providing that the compensation of judges shall not be diminished during their continuance in office, prohibits anything, the necessary operation and effect of which is to withhold or take from the judge a part of that which has been promised by law for his services.

to such a tax in *respect of his salary, consistently with the Constitution, is the matter in issue. If it be resolved against the tax he will be entitled to recover what he paid; otherwise his action must fail. It did fail in the District Court. 262 Fed. 550.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

The Constitution establishes three great With what purpose does the Constitution co-ordinate departments of the national provide that the compensation of the judges government-the legislative, the executive, "shall not be diminished during their conand the judicial-and distributes among tinuance in office"? Is it primarily to benethem the powers confided to that government by the people. Each department is dealt with in a separate article, the legislative in the first, the executive in the second and the judicial in the third. Our present concern is chiefly with the third article. It defines the judicial power, vests it in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish, and declares:

"The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

*249

fit the judges, or rather to promote the public weal by giving them that independence which makes for an impartial and courageous discharge of the judicial function? Does the provision merely forbid direct diminution, such as expressly reducing the compensation from a greater to a less sum per year, and thereby leave the way open for indirect, yet effective, diminution, such as withholding or calling back a part as a tax on the whole? Or, does it mean that the judge shall have a sure and continuing right to the compensation, whereon he confidently may rely for his support during his continuance in office, so that he need have no apprehension lest his situation in this regard may be changed to his disadvantage?

The plaintiff insists that the provision in section 213 which subjects him to a tax in The Constitution was framed on the fundrespect of his compensation as a judge by its amental theory that a larger measure of libnecessary operation and effect diminishes erty and justice would be assured by vestthat compensation and therefore is repug-ing the three great powers, the legislative, nant to the constitutional limitation just the executive, and the judicial, in separate quoted.

[1] Stated in its broadest aspect, the contention involves the power to tax the compensation of federal judges in general, and also the salary of the President, as to which the Constitution (article 2, § 1, cl. 6) contains a similar limitation. Because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us; and this although each member has been paying the tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was en

*248

titled by law to invoke our *decision on the
question as respects his own compensation,
in which no other judge can have any direct
personal interest; and there was no other
appellate tribunal to which under the law
he could go.
He brought the case here in
due course, the government joined him in
asking an early determination of the ques-
tion involved, and both have been heard at
the bar and through printed briefs. In this
situation, the only course open to us is to
consider and decide the cause a conclusion
supported by precedents reaching back many
years. Moreover, it appears that, when this
taxing provision was adopted, Congress re-
garded it as of uncertain constitutionality
and both contemplated and intended that
the question should be settled by us in a case
like this.1

1 See House Report, No. 767, p. 29, 65th Cong., 2d Sess.; Senate Report, No. 617, p. 6, 65th Cong. 3d Sess. And see Cong. Record vol. 56, p. 10370, where the Chairman of the House Committee, in asking the adoption of the provision, said: "I wish to say, Mr. Chairman, that while there is considerable doubt as to the constitutionality of taxing •

departments, each relatively independent of the others; and it was recognized that without this independence-if it was not made both real and enduring-the separation would fail of its purpose. All agreed that restraints and checks must be imposed to secure the requisite measure of independence; for otherwise the legislative department, inherently the strongest, might encroach on or even come to dominate the others, and the judicial, naturally the weakest, might be dwarfed or swayed by the other two, especially by the legislative.

The particular need for making the judiciary independent was elaborately pointed ist, No. 78, from which we excerpt the folout by Alexander Hamilton in the Federallowing:

The

"The executive not only dispenses the honors, but holds the sword of the community. Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. *

federal judges' or the President's salaries,
we cannot settle it; we have not the power to set-
tle it. No power in the world can settle it except
the Supreme Court of the United States. Let us
raise it, as we have done, and let it be tested, and
it can only be done by some one protesting his tax
and taking an appeal to the Supreme Court." And
again: "I think really that every man who has a
doubt about this can very well vote for it and take
the advice of the gentleman from Pennsylvania
[Mr. Graham], which was sound then and is sound
now, that this question ought to be raised by Con-
gress, the only power that can raise it, in order
that it may be tested in the Supreme Court, the
only power that can decide it."

*250

This simple view of *the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks."

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

At a later period John Marshall, whose rich experience as lawyer, legislator, and Chief Justice enabled him to speak as no one else could, tersely said (Debates Va. Conv. 1829-1831, pp. 616, 619):

"Advert, sir, to the duties of a judge. He has to pass between the government and the man whom that government is prosecuting; between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance, that in the exercise of these auties he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness? The judicial department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? I have always thought, from my earliest youth till now, that

*251

the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judi

ciary."

trolled. Other constitutional systems lack complete poise and certainty of operation because they lack the support and interpretation of authoritative, undisputable courts of law. It is clear beyond all need of exposition that for the definite maintenance of constitutional understandings it is indispensable, alike for the preservation of the liberty of the individual and for the preservation of the integrity of the powers of the government, that there should be some nonpolitical forum in which those understandings can be impartially debated and determined. That forum our courts supply. There the individual may assert his rights; there the government must accept definition of its authority. There the individual may challenge the legality of governmental action and have it adjudged by the test of fundamental principles, and that test the government must abide; there the government can check the too aggressive self-assertion of the individual and

*252

establish its power upon lines which all *can comprehend and heed. The constitutional powguard alike of individual privilege and of govers of the courts constitute the ultimate safeernmental prerogative. It is in this sense that our judiciary is the balance wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty."

Constitutional Government in the United States, pp. 17, 142.

Conscious of the nature and scope of the power being vested in the national courts, recognizing that they would be charged with responsibilites more delicate and important than any ever before confided to judicial tribunals, and appreciating that they were to be, in the words of George Washington,2 "the keystone of our political fabric," the convention with unusual accord incorporated in the Constitution the provision that the judges "shall hold their offices during good behavior and shall at stated times receive for their services a compensation which shall not be diminished during their continthat the two things thus coupled in placeuance in office." Can there be any doubt behavior and that in respect of an undiminthe clause in respect of tenure during good ishable compensation-were equally coupled in purpose? And is it not plain that their purpose was to invest the judges with an independence in keeping with the delicacy and importance of their task and with the imperative need for its impartial and fearless

"It is also necessary that there should be a judiciary endowed with substantial and independent powers and secure against all corrupting or perverting influences; secure, also, against the arbitrary authority of the adminis-performance? Mr. Hamilton said in explatrative heads of the government.

nation and support of the provision (Federalist, No. 79):

"Indeed there is a sense in which it may be said that the whole efficacy and reality of con"Next to permanency in office, nothing can stitutional government resides in its courts. contribute more to the independence of the judg Our definition of liberty is that it is the best es than a fixed provision for their support. practicable adjustment between the powers** * In the general course of human nature, of the government and the privileges of the individual."

"Our courts are the balance wheel of our whole constitutional system; and ours is the only constitutional system so balanced and con

a power over a man's subsistence amounts to a power over his will. * * * The enlightened friends of good government in every state

2 Sparks' Washington, vol. 10, pp. 35, 36,

(40 Sup.Ct.)

have seen cause to lament the want of precise

*253

was the part which was paid with one hand and then taken back with the other? Was he not placed in practically the same situation as if it had been withheld in the first instance? Only by subordinating substance to mere form could it be held that his compensation was not diminished. Of course, the conclusion that it was diminished is the nat

and explicit precautions in the state constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be req-ural one. This is illustrated in Dobbins v. uisite. This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the Constitutions of any of the states in regard to their own judges."

*

The several commentators on the Constitution have adopted and reiterated this view, Judge Story adding:

"Without this provision [as to an undiminishable compensation], the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery"

and Chancellor Kent observing:

"It tends, also, to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station."

Commissioners of Erie County, 16 Pet. 435, 450, 10 L. Ed. 1022, which involved a tax charged under a law of Pennsylvania against a revenue officer of the United States who was a citizen and resident of that state. The tax was adjusted or proportioned to his compensation, and the state court sustained it. Erie County Com'rs v. Dobbins, 7 Watts (Pa.) 513. In reversing that decision, this court, after showing that the compensation had been fixed by a law of Congress said:

"Does not a tax, then, by a state upon the the law of the United States, which secures it office, diminishing the recompense, conflict with to the officer in its entireness? It certainly has such an effect; and any law of a state imposing such a tax cannot be constitutional."

But it is urged that what the plaintiff was made to pay back was an income tax, and that a like tax was exacted or others engaged in private employment.

If the tax in respect of his compensation

*255

be prohibited, it can find no justification in the taxation of other income as to which there is no prohibition; for, of course, doing what the Constitution permits gives no license to do what it prohibits.

The prohibition is general, contains no excepting words, and appears to be directed against all diminution, whether for one pur

[2] These considerations make it very plain, as we think, that the primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations, and pervading principles of the Constitution and to the administra-pose or another; and the reasons for its adoption of justice without respect to persons and with equal concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a limitation imposed in the public interest; in other

tion, as publicly assigned at the time and commonly accepted ever since, make with impelling force for the conclusion that the fathers of the Constitution intended to prohibit diminution by taxation as well as otherwise-that they regarded the independence of the judges words, not restrictively, but in *accord with as of far greater importance than any revits spirit and the principle on which it pro-enue that could come from taxing their salceeds.

*254

[3, 4] Obviously, diminution may be effected in more ways than one. Some may be direct and others indirect, or even evasive as Mr. Hamilton suggested. But all which by their necessary operation and effect withhold or take from the judge a part of that which has been promised by law for his services must be regarded as within the prohibition. Nothing short of this will give full effect to its spirit and principle. Here the plaintiff was paid the full compensation, but was subjected to an involuntary obligation to pay back a part, and the obligation was promptly enforced. Of what avail to him

2 Story, § 1628; 1 Kent's Com. *294; 1 Wilson's Works, 410, 411; 2 Tucker, § 364; Miller, 340-343; 1 Carson's Supreme Court, 6.

aries.

In

True, the taxing power is comprehensive and acknowledges few exceptions. But that there are exceptions, besides the one we here recognize and sustain, is well settled. Collector v. Day, 11 Wall. 113, 20 L. Ed. 122, it was held that Congress could not impose an income tax in respect of the salary of a judge of a state court; in Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 585, 601, 652, 653, 15 Sup. Ct. 673, 39 L. Ed. 759, it was held-the full court agreeing on this pointthat Congress was without power to impose such a tax in respect of interest received from bonds issued by a state or any of its counties or municipalities; and in United States v. Railroad Co., 17 Wall. 322, 21 L. Ed. 597, there was a like holding as to municipal