candidate for re-election or not) may, by so express

ing his intention in writing to his successor as Chief Justice, within thirty days after the election, continue to be a judge upon the same terms as to tenure, removal and retirement from office as associate justices of the Supreme Court; and

2. That such ex-Chief Justice may be assigned by

his successor in the office of Chief Justice to perform judicial duties

a. In the Supreme Court in place of any member thereof absent through illness or for any other

cause, or

b. In any other court having appellate juris

diction, or

c. In any court having a general jurisdiction at law and in equity, or

d. In any division thereof.

3. That any Chief Justice for the time being may assign any judge of any court having appellate jurisdiction, other than the Supreme Court, or any judge

of any court having general original jurisdiction at

law and in equity, to perform judicial duties in the

30

31

Supreme Court in place of any member thereof ab

sent through illness or for any other cause.

SECTION 15. First Associate Justices of the Supreme 2 Court and term of office.] The first associate justices of 3 the Supreme Court shall be the justices of the Supreme 4 Court [meaning thereby the highest appellate tribunal 5 of the state] at the time when this Constitution takes 6 effect other than such one, if any, as may be elected and 7 enter upon the office of Chief Justice.

8

The term of office of each of said associate justices shall 9 be the same as it was before the taking effect of this Con10 stitution and shall expire on the day when the same would 11 have expired, according to law, before the taking effect 12 of this Constitution.

13

Provided, however, that said associate justices may 14 each respectively within thirty (30) days after the adop15 tion of this Constitution elect to become an associate jus16 tice of the Supreme Court, on the same terms as to tenure 17 and retirement, as if they were justices of the Supreme 18 Court appointed by the Chief Justice under the provi19 sions of this Constitution at the date of the adoption of 20 this Constitution.

The problem of making the transition from the present Supreme Court arrangements to the new ones is difficult.

1. If the Chief Justice to be elected at once is not one of the present justices, then for a time at least there would be eight justices of the Supreme Court. Furthermore, when the term of the first associate justice expires he cannot possibly obtain a place in the court. He will be forced to retire in order to reduce the number of associate justices to six. In the same way, if several places become vacant at the same time, then one of the justices so retiring must be forced from the bench. This will present a very practical difficulty to the mind of the present incumbents.

2. The difficulty would be solved in a measure if the Chief Justice were taken from among the present justices. It would not do, however, to force this, because the Chief Justice's term might be less desirable to the sitting justices than the balance of their old terms. The better course would seem to be to leave it optional with the present justices to run for Chief Justice or not as they pleased. If one or more run and one is elected-which is not improbable then the office of one of the present justices of the Supreme Court would cease and the number of associate justices would thereupon be reduced to six.

3. Another difficulty is that if six of the present justices become the first associate justices under the constitutional provisions and the Chief Justice has power to fill vacancies when their old terms expire, the associate justices will be at the mercy of the Chief Justice holding office when their terms expire. They must look to him for an appointment. This is undesirable since it takes away too much from the judge's independence of judicial action. In order to obviate this each of the present justices who become associate justices of the Supreme Court under the new constitutional provisions, are given the option to become a justice of the Supreme Court under the Constitution as if appointed by the Chief Justice at the time of the adoption of the Constitution. This will cause their tenure of office to become indeterminate, but they will be forced to submit their names to the electorate at the end of three years for approval or disapproval, and thereafter at the intervals stated in the constitutional provisions. Nevertheless, such a step will remove them from dependence upon a Chief Justice for

an appointment. Again an option is given to the present justicesthey can take one course or the other, as they please.

4. As the constitutional provisions here presented are drafted it is possible that a Chief Justice would be elected who was not a member of the court at the time of the adoption of the Constitution and that all present members of the Supreme Court would elect to continue as justices who had been appointed by the Chief Justice at the time when the Constitution was adopted. In that case the court would have a Chief Justice and seven associate justices and there would be seven associate justices until one was retired at an election, or died, resigned, or reached the age limit and retired.

For the purpose of having the new system go into effect smoothly and with more than fairness to present incumbents, it would be worth while to put up for the time with the extra judge.

As a matter of fact such an outcome might prove highly desirable, since for most of its business the Supreme Court would go on with the same personnel that it had before and the new Chief Justice would have an opportunity to attend to the organization of the courts of the State provided for by the Act contained in the schedule.

NOTE ON SELECTION OF ASSOCIATE JUDGES.

Again the directors wish to make clear that they are not recommending dogmatically any particular plan for the selection of associate judges of the Supreme Court. Their position is, that if there is at present dissatisfaction with appointment by the governor or the election of judges for terms for years, the plan of electing a Chief Justice for a short term and giving him the power to appoint associate judges to hold during good behavior, but subject to certain methods of retirement hereafter more particularly described, embodies the correct principle and gives promise of practical success. The following sections are appropriate to provide for the appointment of associate judges by the Chief Justice.

Section 16. Filling vacancies among Associate Justices.] When the office of an associate justice of the Supreme Court shall have become vacant,

1. A new justice may be appointed thereto

a. From among the first justices of the Supreme Court as organized under this Constitution, or

b. From among those eligible to hold said office as heretofore provided in section six (6) of this article.

2. Provided, however, that no Chief Justice shall appoint more than two justices from among the residents of each of the following districts:

[Here name the districts.]

3. Provided, also, that in case the power shall be conferred upon the Chief Justice to fill by appointment vacancies among the judges of any court or courts of general original jurisdiction in law and in equity and in any appellate tribunals other than the Supreme Court, the legislature shall have power to require the Chief Justice to make appointments to the Supreme Court from among those duly qualified according to the provisions of section six (6) of this article, who have served as judges at least one year in said court of general jurisdiction at law and in equity or in some division or branch thereof.

Section 17. Vacancies When deemed to exist.] No vacancies shall be deemed to exist among the associate justices of the Supreme Court until the number thereof shall have fallen below six.

SECTION 18. Salary of Chief Justice and Associate

2 Justices.] From and after the adoption of this Consti

3 tution the Chief Justice shall receive a compensation of

4

dollars per annum, and each associate justice of

5 the Supreme Court a compensation of

dollars

6 per annum, payable monthly, until otherwise provided

7 by law.