These cases are here on certificates from the Court of Claims. They involve the same questions, were argued together at the bar, and may well be disposed of by the same opinion.
Daniel W. O'Donoghue is an associate justice of the Supreme Court of the District of Columbia, having been duly appointed to that position by the President, by and with the advice and consent of the Senate. He duly qualified as such justice on February 29, 1932, and has ever since been engaged in the performance of the duties of the office. At the time of his appointment and entry upon his duties, his salary was fixed by act of Congress (chapter 6, 44 Stat. 919 (D.C. Code 1929, T. 18, § 42)) at the rate of $10,000 per year, which was paid to him until June 30, 1932.
William Hitz is an associate justice of the Court of Appeals of the District of Columbia, having been appointed on December 5, 1930, by the President, and later confirmed by the Senate. On February 13, 1931, he duly qualified as such associate justice and has ever since been engaged in performing the duties of his office. By the act of Congress already referred to, his salary was fixed at the rate of $12,500 per year. This amount he received until June 30, 1932.
By the Legislative Appropriation Act of June 30, 1932 (chapter 314, 47 Stat. 382, 401 (5 USCA § 673 note)), Congress provided as follows:
'Sec. 105. During the fiscal year ending June 30, 1933-* * *
'(d) In the case of the following persons the rate of compensation is reduced as follows: If more than $1,000 per annum but less than $10,000 per annum, 8 1/3 per centum; if $10,000 per annum or more, but less than $12,000 per annum, 10 per centum; if $12,000 per annum or more, but less than $15,000 per annum, 12 per centum; if $15,000 per annum or more, but less than $20,000 per annum, 15 per centum; if $20,000 per annum or more, 20 per centum. * *
*'Sec. 106. During the fiscal year ending June 30, 1933, the retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office) and the retired pay of all commissioned and other personnel (except enlisted) of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, Lighthouse Service, and the Public Health Service shall be reduced as follows: If more than $1,000 per annum but less than $10,000 per annum, 8 1/3 per centum; if $10,000 per annum or more, but less than $12,000, 10 per centum; if $12,000 per annum or more, but less than $15,000 per annum, 12 per centum; if $15,000 per annum or more, but less than $20,000, 15 per centum; if $20,000 per annum or more, 20 per centum. This section shall not operate so as to reduce any rate of retired pay to less than $1,000 per annum.
'Special Salary Reductions
'Sec. 107. (a) During the fiscal year ending June 30, 1933-* * *
'(5) the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office), if such salaries or retired pay are at a rate exceeding $10,000 per annum, shall be at the rate of $10,000 per annum.'
In July, 1932, the Comptroller General of the United States held that the Court of Appeals and the Supreme Court of the District of Columbia are 'legislative' courts and not 'constitutional' courts whose judges are entitled to the protection of article 3, § 1, of the Constitution, which provides: 'The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 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.'
Thereupon the disbursing officer of the Department of Justice, pursuant to the ruling of the Comptroller General, reduced the annual compensation by 10 per cent. in the case of Justice O'Donoghue, and by 20 per cent. in the case of Justice Hitz, and over their protest paid to them for the months of July to December, 1932, inclusive, their compensation at this reduced rate.
On January 19, 1933, suits were brought in the court of Claims to recover the amount of the deductions which had been made and enforced up to that time.