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Status: Needs Review


908 MICHIGAN LAW REVIEW

governmental confiscation is not to be so interpreted as to entitle
"a host of sinecurists" to retain office regardless of the public need;
"it is impossible to believe that such a condition of affairs ever was
contemplated by the framers of our organic or statute law."103
Should the good-behavior clause be read in a more absolute sense?
Should it be given a scope and effect which it did not have at common
law and which ignores the need for efficient public service?
Surely the good-behavior tenure clause should not be so construed.104

To sum up this discussion of legal and constitutional questions:
It is submitted that the Constitution imposes limits upon the removal
of judges in just three respects. The first limitation relates
to the method of removal; it is derived from the doctrine of separation
of powers. It amounts in effect to a prohibition of the removal
of judges by executive action or by legislative action except as Congress
is expressly authorized to remove them by impeachment. The
second limitation relates to the causes for which judges may forfeit
their office. It is derived from the good-behavior tenure clause.
'That clause means that judges are removable in the strict sense,
only for misbehavior. The third limitation relates to compulsory
retirement of judges for disability, a cause which involves no fault
The limitation is derived from the good•behavior
on their part. The limitation is derived from the good-behavior
clause, from the clause which guarantees judicial income against reduction
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103Crenshaw v. United States, supra at 107.

104Even 'if one were to assume that a good-behavior tenure office is in
the nature of property, the result should not be different. Property rights
and franchises may be condemned when public need requires. (As to condemnation
of franchises, see Monogahela Nav. Co. v. United States, 148 U. S.
312; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685). One can
draw an exact parallel between retirement in such case and the condemnation
of private property for public use. The taking for public use is here represented
by compulsory retirement; the public necessity, by the judge's inability
to perform his functions; and the compensation for private interests appropriated,
by the pension.
While the constitutional protection to property rights would be completely
satisfied by retirement on full-pay pension, retirement on this basis may appear
superficially as a great public expense. In reality it is no additional
expense at all because the disabled judge is never retired in practice unless
a substantial pension is given him. The disability pension is a practical prerequisite
to removal for disability regardless of any queestion of constitutional
requirements. There is therefore little if any difference in public expense
whether the disabled judge remains in or is retired from his office.

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