UNITED STATES v. WILL ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
Argued October 13, 1980
Decided December 15, 1980 *
[ Footnote * ] Together with No. 79-1689, United States v. Will et al., also on appeal from the same court.
An interlocking network of federal statutes fixes the compensation of high-level federal officials, including federal judges, and provides for annual cost-of-living adjustments in salary determined in the same way as those for federal employees generally. In four consecutive fiscal years (hereafter Years 1, 2, 3, and 4), Congress, with respect to these high-level officials, enacted statutes to stop or reduce previously authorized cost-of-living increases initially intended to be automatically operative under that statutory scheme. In Years 2 and 3, the statutes became law before the start of the fiscal year, and in Years 1 and 4 became law on or after the first day of the fiscal year. A number of United States District Court Judges (appellees) filed class actions against the United States in District Court, challenging the validity of the statutes under the Compensation Clause of the Constitution, which provides that federal judges shall receive compensation which "shall not be diminished during their Continuance in Office." The District Court granted summary judgments for appellees.
BURGER, C. J., delivered the opinion of the Court, in which all other Members joined, except BLACKMUN, J., who took no part in the decision of the cases.
Acting Solicitor General Geller argued the cause for the United States. With him on the briefs were Assistant Attorney General Daniel, Mark I. Levy, Anthony J. Steinmeyer, Neil H. Koslowe, and Mark N. Mutterperl.
Kevin M. Forde argued the cause for appellees. With him on the brief was Richard J. Prendergast.Fn
Fn [449 U.S. 200, 202] Briefs of amici curiae urging affirmance in both cases were filed by Leonard F. Janofsky, John A. Sutro, Francis R. Kirkham, and C. Douglas Floyd for the American Bar Association; by Richard William Austin and John F. McCarthy for the Chicago Bar Association; and by Nancy Y. Bekavac and Richard Coleman for the Los Angeles County Bar Association.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
These appeals present the questions whether under the Compensation Clause, Art. III, 1, Congress may repeal or modify a statutorily defined formula for annual cost-of-living increases in the compensation of federal judges, and, if so, whether it must act before the particular increases take effect.
Congress has enacted an interlocking network of statutes to fix the compensation of high-level officials in the Executive, Legislative, and Judicial Branches, including federal judges. It provides for quadrennial review of overall salary levels and annual cost-of-living adjustments determined in the same fashion as those for federal employees generally. In four consecutive fiscal years, Congress, with respect to these high-level [449 U.S. 200, 203] Executive Branch, Legislative, and Judicial salaries, enacted statutes to stop or to reduce previously authorized cost-of-living increases initially intended to be automatically operative under that statutory scheme, once the Executive had determined the amount. In two of these years, the legislation was signed by the President and became law before the start of the fiscal year; in the other two years, on or after the first day of the fiscal year.
The salaries of high-level Executive, Legislative, and Judicial officials are set under the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 642, as amended, 2 U.S.C. 351-361 (1976 ed. and Supp. III). The Salary Act provides for a quadrennial review, starting in 1969, of these officials' compensation. A Commission on Executive, Legislative, and Judicial Salaries periodically examines the salary levels for these positions in relation to one another and to the General Schedule (GS), the matrix of grades and steps that determines the salaries of most federal employees. Its recommendations are submitted to the President, who in turn submits that report with his recommendations to Congress in the next budget. Each House of Congress must vote on the President's proposal within 60 days. If both Houses approve, the adjustment takes effect at the start of the first pay period beginning 30 days thereafter. 1
In 1975, Congress adopted the Executive Salary Cost-of-Living Adjustment Act, Pub. L. 94-82, 89 Stat. 419. The Adjustment Act subjects the salaries covered by the Salary Act to the same annual adjustment made in the General Schedule under the Federal Pay Comparability Act of 1970, 5 U.S.C. 5305-5306. The Comparability Act requires that each year the President designate an agent to compare federal salaries to data on private-sector salaries compiled by [449 U.S. 200, 204] the Bureau of Labor Statistics. The agent must undertake certain steps in his investigation and, ultimately, submit a report to the President recommending adjustments as deemed appropriate to bring federal employees' salaries in line with prevailing rates in the private sector. A separate Advisory Committee on Federal Pay then reviews that report and makes its own independent recommendation. Thereafter, the President issues an order adjusting the salaries of federal employees and submits a report to Congress listing the overall percentage of the adjustment and including the reports and recommendations submitted to him on the subject. If the President believes that economic conditions or conditions of national emergency make the planned adjustment inappropriate, he may submit to Congress before September 1 an alternative plan for adjusting federal employees' salaries. This alternative plan controls unless within 30 days of continuous legislative session either House of Congress adopts a resolution disapproving of the President's proposed plan. If one House disapproves, the agent's recommendation governs. The increases take effect with the start of the first pay period starting on or after the beginning of the federal fiscal year on October 1.
This complex web of base salaries adjusted annually for civil service employees and again quadrennially for higher-rank positions has led to the following statutory definition of a United States district judge's compensation:
In October 1975, GS salaries were increased by an average of 5% under the terms of the Comparability Act. Federal judges and the other officials covered by the Adjustment Act received similar increases. In each of the following four years, however, Congress adopted a statute that altered the application of the Adjustment Act for the officials of the three branches subject to it. To avoid the confusion generated by a fiscal year's having a number different from the calendar year in which it begins, we refer to these as Years 1, 2, 3, and 4. We turn now to the specific actions taken for each of the four years in question.
In March 1977, Members of Congress, federal judges, and high-ranking employees in the Executive Branch received raises pursuant to the quadrennial review under the Salary Act. The salary of a United States district judge, for example, increased to $54,500; circuit judges and special appellate judges, to $57,500; Associate Justices of the Supreme Court, to $72,000. 42 Fed. Reg. 10297 (1977). 3
On February 7, 1978, 13 United States District Judges filed an action (No. 79-983 in this Court) in the District Court for the Northern District of Illinois. The complaint, which named the United States as defendant, challenged the validity of the statutes in Years 1 and 2 under the Compensation Clause, U.S. Const., Art. III, 1. 6 The plaintiff judges were certified as representatives of two classes of Article III judges, the classes defined with reference to Years 1 and 2. 7 The Government, while not opposing certification of the classes, defended the validity of both statutes.
In an opinion filed August 29, 1979, the District Court granted summary judgment for the plaintiffs, appellees here. 478 F. Supp. 621. A corresponding judgment order was entered September 24. On appeal by the Government, we postponed decision on jurisdiction to the hearing on the merits and directed the parties to address the effect of 28 U.S.C. 455, if any, on the jurisdiction of the District Court and this Court. 444 U.S. 1068 (1980).
No. 79-1689 comes to us from a similar complaint filed in the United States District Court for the Northern District of [449 U.S. 200, 210] Illinois on October 19, 1979, after the District Court had entered judgment in No. 79-983. At issue this time were the statutes in Years 3 and 4. The same 13 judges, joined by one other, again sought to represent two classes of Article III judges defined by the years. 8 The United States is defendant. The case was referred to the same member of the District Court who had presided over the proceedings in No. 79-983.
On January 31, 1980, the District Court entered an order certifying the classes and granting summary judgment for the plaintiffs, appellees in No. 79-1689. Based on its decision in No. 79-983, the court held that the statute in Year 3 violated the Compensation Clause. The court noted with respect to Year 4 that the relevant statute referred only to "executive employees." It then held that while it was doubtful Congress intended the statute to apply to judges, the statute would be unconstitutional if Congress did so intend. In either case, the Adjustment Act increase for Year 4 took effect. Judgment for appellees was formally entered February 12. On the Government's appeal to this Court, we postponed consideration of jurisdiction to the merits and consolidated this case with No. 79-983 for briefing and oral argument. 447 U.S. 919 (1980).
In federal courts generally, when an individual judge is disqualified from a particular case by reason of 455, the disqualified judge simply steps aside and allows the normal administrative processes of the court to assign the case to another judge not disqualified. In the cases now before us, however, all Article III judges have an interest in the outcome; assignment of a substitute District Judge was not possible. And in this Court, when one or more Justices are recused but a statutory quorum of six Justices eligible to act remains available, see 28 U.S.C. 1, the Court may continue to hear the case. Even if all Justices are disqualified in a particular case under 455, 28 U.S.C. 2109 authorizes the Chief Justice to remit a direct appeal to the Court of Appeals for final decision by judges not so disqualified. 13 [449 U.S. 200, 213] However, in the highly unusual setting of these cases, even with the authority to assign other federal judges to sit temporarily under 28 U.S.C. 291-296 (1976 ed. and Supp. III), it is not possible to convene a division of the Court of Appeals with judges who are not subject to the disqualification provisions of 455. It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common law that, as Pollack put it, "although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise." F. Pollack, A First Book of Jurisprudence 270 (6th ed. 1929).
The Rule of Necessity has been consistently applied in this country in both state and federal courts. In State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652 (1943), the Supreme Court of Kansas observed:
The concept of the absolute duty of judges to hear and decide cases within their jurisdiction revealed in Pollack, supra, and Philadelphia v. Fox, supra, is reflected in decisions of this Court. Our earlier cases dealing with the Compensation Clause did not directly involve the compensation of Justices or name them as parties, and no express reference to the Rule is found. See, e. g., O'Malley v. Woodrough, 307 U.S. 277 (1939); O'Donoghue v. United States, 289 U.S. 516 (1933); Evans v. Gore, 253 U.S. 245 (1920). In Evans, however, an action brought by an individual judge in his own behalf, the Court by clear implication dealt with the Rule:
We therefore hold that 455 was not intended by Congress to alter the time-honored Rule of Necessity. And we would not casually infer that the Legislative and Executive Branches sought by the enactment of 455 to foreclose federal courts from exercising "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
Originally, these same protections applied to colonial judges as well. In 1761, however, the King converted the tenure of colonial judges to service at his pleasure. 21 The interference this change brought to the administration of justice in the Colonies soon became one of the major objections voiced against the Crown. Indeed, the Declaration of Independence, in listing the grievances against the King, complained:
Madison's notes of the Constitutional Convention reveal that the draftsmen first reached a tentative arrangement whereby the Congress could neither increase nor decrease the compensation of judges. Later, Gouverneur Morris succeeded in striking the prohibition on increases; with others, he believed the Congress should be at liberty to raise salaries to meet such contingencies as inflation, a phenomenon known in that day as it is in ours. Madison opposed the change on the ground judges might tend to defer unduly to the Congress when that body was considering pay increases. [449 U.S. 200, 220]
The concern for the ravages of inflation is revealed in Madison's comment:
The four statutes now before us present an issue never before addressed by this Court: when, if ever, does the Compensation Clause prohibit the Congress from repealing salary increases that otherwise take effect automatically pursuant to a formula previously enacted? We must decide when a salary increase authorized by Congress under such a formula "vests" - i. e., becomes irreversible under the Compensation Clause. Is the protection of the Clause first invoked when the formula is enacted or when increases take effect?
Appellees argue that we need not reach this constitutional question. They contend that Congress intended these four statutes do no more than halt funding for the salary increases under the Adjustment Act. If, as appellees contend, the statutes are appropriations measures that do not alter substantive law, the increases in all four years nevertheless are now in effect and the Government is obliged to pay them; it has simply to authorize that payment. Accordingly, appellees submit, these congressional actions violate the Compensation Clause regardless of whether Congress could have rescinded increases previously passed.
As a general rule, "repeals by implication are not favored." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). See also TVA v. Hill, 437 U.S. 153, 189 (1978), and Morton v. Mancari, 417 U.S. 535, 549 (1974). This rule applies [449 U.S. 200, 222] with especial force when the provision advanced as the repealing measure was enacted in an appropriations bill. TVA v. Hill, supra, at 190. Indeed, the rules of both Houses limit the ability to change substantive law through appropriations measures. See Senate Standing Rule XVI (4); House of Representatives Rule XXI (2). Nevertheless, when Congress desires to suspend or repeal a statute in force, "[t]here can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise." United States v. Dickerson, 310 U.S. 554, 555 (1940). "The whole question depends on the intention of Congress as expressed in the statutes." United States v. Mitchell, 109 U.S. 146, 150 (1883). See also Belknap v. United States, 150 U.S. 588, 594 (1893). 23
In the cases now before us, we conclude that in each of the four years in question Congress intended to repeal or postpone previously authorized increases. In the statute for Year 2, Congress expressly stated that the Adjustment Act increase due the following October "shall not take effect." Pub. L. 95-66, 91 Stat. 270. Thus, the plain words of the statute reveal an intention to repeal the Adjustment Act insofar as it would increase salaries in October 1977. This reading finds support in the House Report on the bill, which repeatedly uses language such as "eliminate the expected October 1977 comparability adjustment." See H. R. Rep. No. 95-458, pp. 1, 3 (1977). The floor remarks of Senators and Representatives confirm that this construction was generally understood. 24 [449 U.S. 200, 223]
The statutes in Years 1, 3, and 4, although phrased in terms of limiting funds, see supra, at 205-206, 207, 208, nevertheless were intended by Congress to block the increases the Adjustment Act otherwise would generate. Representative Shipley introduced the rider in relation to Year 1 to "preven[t] the automatic cost-of-living pay increase . . . ." 122 Cong. Rec. 28872 (1976). 25 Floor remarks in both Houses reflected this view. 26 In Year 3, the House Report characterized the statute as a "change [in] the application of existing law," H. R. Rep. No. 95-1254, p. 31 (1978), and described its effect as creating a one-year "pay freeze," id., at 35. The Senate Report [449 U.S. 200, 224] stated that the statute would "continu[e] . . . the so called `cap'" on salaries for the next fiscal year. S. Rep. No. 95-1024, p. 50 (1978). Floor debate once again expressed agreement with this construction. 27 The House Report on the statute for Year 4 characterized it as "reduc[ing] Federal executive pay increases from the mandatory entitlement of 12.9 per centum to 5.5 per centum." H. R. Rep. No. 96-500, p. 7 (1979). The Report referred to the bill as a change in existing law. See id., at 3. Later the Conference Report stated that the statute "restricts Cost-of-Living increases to 5.5 percent" for the fiscal year just begun. H. R. Conf. Rep. No. 96-513, p. 3 (1979). The floor debates also confirm this understanding. 28
These passages indicate clearly that Congress intended to rescind these raises entirely, not simply to consign them to the fiscal limbo of an account due but not payable. The clear intent of Congress in each year was to stop for that year the application of the Adjustment Act. The issue thus resolves itself into whether Congress could do so without violating the Compensation Clause.
The Government contends that Congress could reduce compensation as long as it did not "discriminate" against judges, as such, during the process. That the "freeze" applied to various officials in the Legislative and the Executive Branches, as well as judges, does not save the statute, however. This is quite different from the situation in O'Malley v. Woodrough, 307 U.S. 277 (1939). There the Court held that the Compensation Clause was not offended by an income tax levied on Article III judges as well as on all other taxpayers; there was no discrimination against the plaintiff judge. Federal judges, like all citizens, must share "the material burden of the government . . . ." Id., at 282. The inclusion in the freeze of other officials who are not protected by the Compensation Clause does not insulate a direct diminution in judges' salaries from the clear mandate of that Clause; the Constitution makes no exceptions for "nondiscriminatory" reductions. 30 Accordingly, we hold that the statute with respect to Year 1, as applied to compensation of members of the certified class, violates the Compensation Clause of Art. III.
We are unable to agree with the District Court's analysis and result. Our discussion of the Framers' debates over the Compensation Clause, supra, at 219-220, led to a conclusion that the Compensation Clause does not erect an absolute ban on all legislation that conceivably could have an adverse effect on compensation of judges. 31 Rather, that provision embodies a clear rule prohibiting decreases but allowing increases, a practical balancing by the Framers of the need to increase compensation to meet economic changes, such as substantial inflation, against the need for judges to be free from undue congressional influence. The Constitution delegated to Congress the discretion to fix salaries and of necessity placed faith in the integrity and sound judgment of the elected representatives to enact increases when changing conditions demand.
Congress enacted the Adjustment Act based on this delegated power to fix and, periodically, increase judicial compensation. It did not thereby alter the compensation of judges; it modified only the formula for determining that compensation. Later, Congress decided to abandon the formula [449 U.S. 200, 228] as to the particular years in question. For Year 2, as opposed to Year 1, the statute was passed before the Adjustment Act increases had taken effect - before they had become a part of the compensation due Article III judges. Thus, the departure from the Adjustment Act policy in no sense diminished the compensation Article III judges were receiving; it refused only to apply a previously enacted formula. 32
A paramount - indeed, an indispensable - ingredient of the concept of powers delegated to coequal branches is that each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches. To say that the Congress could not alter a method of calculating salaries before it was executed would mean the Judicial Branch could command Congress to carry out an announced future intent as to a decision the Constitution vests exclusively in the Congress. 33 We therefore conclude [449 U.S. 200, 229] that a salary increase "vests" for purposes of the Compensation Clause only when it takes effect as part of the compensation due and payable to Article III judges. With regard to Year 2, we hold that the Compensation Clause did not prohibit Congress from repealing the planned but not yet effective cost-of-living adjustment of October 1, 1977, when it did so before October 1, the time it first was scheduled to become part of judges' compensation. The statute in Year 2 thus represents a constitutionally valid exercise of legislative authority.
We are satisfied that Congress' use of the phrase "executive employees," in context, was intended to include Article III judges. The full title of the Adjustment Act is the Executive Salary Cost-of-Living Adjustment Act, but it is clear that it was intended to apply to officials in the Legislative and the [449 U.S. 200, 230] Judicial Branches as well. 34 The title does not control over the terms of the statute. The statutes in the three preceding years undeniably applied to judges, and we can discern no indication that the Congress chose to single them out for an exemption when it was including Executive and Legislative officials. Most important, both the Conference Report and the Chairman of the House Appropriations Committee, speaking on the floor, made explicit what already was implicit: the limiting statute would apply to judges as well. See H. R. Conf. Rep. No. 96-513, p. 3 (1979); 125 Cong. Rec. 27530, 27532 (1979) (remarks of Rep. Whitten). 35
Having concluded that the statute in Year 4 was intended to apply to judges as well as other high-level federal officials, we are confronted with a situation similar to that in Year 1. Here again, the statute purported to revoke an increase in judges' compensation after those statutes had taken effect. For the reasons governing the statute as to Year 1, we hold that the statute revoking the increase for Year 4 violated the Compensation Clause insofar as it applied to members of the certified class.
The District Court has not yet calculated the precise dollar amounts involved in Years 1 and 4, the years in which we hold the statutes violated the Compensation Clause. Further proceedings are required to resolve these questions. Accordingly, the judgment of the District Court in No. 79-983 [449 U.S. 200, 231] is affirmed in part and reversed in part, the judgment in No. 79-1689 is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
[ Footnote 2 ] See 28 U.S.C. 5 (the Chief Justice and each Associate Justice of the Supreme Court); 28 U.S.C. 44 (d) (circuit judges); 28 U.S.C. 173 [449 U.S. 200, 205] (Court of Claims); 28 U.S.C. 213 (Court of Customs and Patent Appeals); 28 U.S.C. 252 (Court of International Trade (formerly Customs Court)).
[ Footnote 3 ] These amounts exceeded the levels these salaries would have achieved had Congress left in effect the 4.8% increase from October 1, 1976. Therefore, appellees' complaint in No. 79-983 challenged the statute in Year 1 only insofar as it affected judicial compensation from October 1, 1976, to March 1, 1977. See n. 6, infra.
[ Footnote 4 ] See also 123 Cong. Rec. 7126 (1977) (remarks of Sen. Scott) ("prevents people . . . from receiving two pay raises in 1 year"); id., at 21121 (remarks of Rep. Solarz) ("individuals who have already received one increase during the course of the current year should not be entitled to receive a second increase as well"); infra, at 222, and n. 24.
[ Footnote 5 ] The 7% increase was computed on the salary levels as they stood after the addition of the 5.5% increase deferred from Year 3. The compounding of the two increase means that the employees affected felt a combined increase of 12.9%. This explains the additional 0.4%.
[ Footnote 6 ] The plaintiffs challenged the statute in Year 1 only insofar as it applied to compensation earned from October 1, 1976, until March 1, 1977, the date the quadrennial increase under the Comparability Act took effect. See n. 3, supra.
[ Footnote 7 ] For Year 1, the class was defined as all Article III judges serving during part or all of the period October 1, 1976, to March 1, 1977, the date the quadrennial increase under the Comparability Act took effect. See n. 6, supra. For Year 2, the class was defined as all Article III judges taking office prior to July 11, 1977, the date the statute was passed, and continuing in office after October 1, 1977, the date the Adjustment Act increase was due to take effect.
The case was referred to a newly appointed member of the District Court who had taken office after October 1, 1977, and thus was not a member of either class.
[ Footnote 8 ] For Year 3, the class was defined as all Article III judges in office on October 1, 1978, the date of the scheduled Adjustment Act increase, and continuing in office thereafter. For Year 4, the class was defined as all Article III judges in office on October 1, 1979, the date the Adjustment Act increase took effect, and continuing in office through October 12, 1979, the date the Year 4 statute was signed.
[ Footnote 9 ] This section provides in part:
[ Footnote 10 ] This provision confers on the district courts and the Court of Claims concurrent jurisdiction over actions against the United States based on the Constitution when the amount in controversy does not exceed $10,000. The complaints in both No. 79-983 and No. 79-1689 state that the claims of individual members of the classes do not exceed $10,000, an allegation the Government has not disputed. See App. 9a, 62a.
[ Footnote 11 ] This section provides in relevant part:
[ Footnote 12 ] See, e. g., ABA, Code of Judicial Conduct, Canon 3 (C).
[ Footnote 13 ] Section 2109 provides, in relevant part:
The original version of this section was designed to ensure that the parties in antitrust and Interstate Commerce Commission cases, which at that time could be appealed directly to this Court, would always have some form of appellate review. See H. R. Rep. No. 1317, 78th Cong., 2d Sess., 2 (1944). Congress broadened this right in the 1948 revision of Title 28 to include all cases of direct review. H. R. Rep. No. 308, 80th Cong., 1st Sess., A175-A176 (1947).
[ Footnote 14 ] Rolle's Abridgment summarized this holding as follows:
[ Footnote 15 ] For example, in Mooers v. White, 6 Johns. Ch. 360 (N. Y. 1822), Chancellor Kent continued to sit despite his brother-in-law's being a party; New York law made no provision for a substitute chancellor. See In re Leefe, 2 Barb. Ch. 39 (N. Y. 1846). See also cases cited in Annot., 39 A. L. R. 1476 (1925).
[ Footnote 16 ] E.g., Moulton v. Byrd, 224 Ala. 403, 140 So. 384 (1932); Olson v. Cory, 26 Cal. 3d 672, 609 P.2d 991 (1980); Nellius v. Stiftel, 402 A. 2d 359 (Del. 1978); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A. 2d 125 (1976); Wheeler v. Board of Trustees of Fargo Consol. School [449 U.S. 200, 215] Dist., 200 Ga. 323, 37 S. E. 2d 322 (1946); Schward v. Ariyoshi, 57 Haw. 348, 555 P.2d 1329 (1976); Higher v. Hansen, 67 Idaho 45, 170 P.2d 411 (1946); Gordy v. Dennis, 176 Md. 106, 5 A. 2d 69 (1936); State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N. W. 2d 52 (1954); State ex rel. West Jersey Traction Co. v. Board of Public Works, 56 N. J. L. 431, 29 A. 163 (1894); Long v. Watts, 183 N.C. 99, 110 S. E. 765 (1922); First American Bank & Trust Co. v. Ellwein, 221 N. W. 2d 509 (N. D.), cert. denied, 419 U.S. 1026 (1974); McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361 (1915); Alamo Title Co. v. San Antonio Bar Assn., 360 S. W. 2d 814 (Tex. Civ. App.), writ ref'd, no rev. error (Tex. 1962).
[ Footnote 17 ] E. g., Atkins v. United States, 214 Ct. Cl. 186, 556 F.2d 1028 (1977), cert. denied, 434 U.S. 1009 (1978); Pilla v. American Bar Assn., 542 F.2d 56 (CA8 1976); Brinkley v. Hassig, 83 F.2d 351 (CA10 1936); United States v. Corrigan, 401 F. Supp. 795 (Wyo. 1975).
[ Footnote 18 ] O'Malley cast doubt on the substantive holding of Evans, see n. 31, infra, but the fact that the Court reached the issue indicates that it did not question this aspect of the Evans opinion.
[ Footnote 19 ] In another, not unrelated context, Chief Justice Marshall's exposition in Cohens v. Virginia, 6 Wheat. 264 (1821), could well have been the explanation of the Rule of Necessity; he wrote that a court "must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them." Id., at 404 (emphasis added).
[ Footnote 20 ] See Act of Mar. 3, 1911, ch. 231, 20, 21, 36 Stat. 1090 (current version at 28 U.S.C. 144, 455 (1976 ed. and Supp. III)). This statute applied only to district judges, but its existence demonstrates that the Rule of Necessity has continued in force side by side with statutory disqualification standards.
[ Footnote 21 ] See, e. g., W. Carpenter, Judicial Tenure in the United States 2-3 (1918).
[ Footnote 22 ] The rejection of Madison's suggestion of tying judicial salaries to the price of some commodity may have arisen from colonial Virginia's unsatisfactory experience with a similar scheme for paying the clergy with a set amount of tobacco. See generally L. Gipson, The Coming of the Revolution, 1763-1775, pp. 46-54 (1954); Scott, The Constitutional Aspects of the "Parson's Cause," 31 Pol. Sci. Q. 558 (1916). Although ultimately the tobacco statutes and the subsequent cases are more important as indications of early dissatisfaction with the Crown, the widespread publicity surrounding them surely made the Framers wary of indexing salaries by reference to some commodity.
[ Footnote 23 ] Indeed, in both Mitchell and Belknap, the Court held that provisions in appropriations statutes funding certain officials' salaries at amounts below those established under previous statutes operated to repeal the relevant provisions of those statutes and set new salary levels.
[ Footnote 24 ] See, e. g., 123 Cong. Rec. 7095 (1977) (remarks of Sen. Byrd) ("salaries . . . shall not be increased . . . thus obviat[ing] the effect of the comparability pay provisions"); ibid. (remarks of Sen. Baker) ("forgo and rescind that adjustment"); id., at 21121 (remarks of Rep. Solarz) [449 U.S. 200, 223] ("knock[s] out the comparability increase for this year"); id., at 21125 (remarks of Rep. Ammerman) ("deny the October 1 cost-of-living pay increase").
[ Footnote 25 ] Representative Shipley's original amendment applied only to Members of the House of Representatives. The provision was expanded to cover all officials subject to the Salary Act. See 122 Cong. Rec. 28877 (1976). The Senate Committee studying the bill recommended the provision be deleted altogether, see S. Rep. No. 94-1201, p. 2 (1976), but the Senate ultimately passed a version applying the freeze to all Members of Congress, see 122 Cong. Rec. 29132-29133 (1976). The Conference Committee recommended that the freeze apply to all Salary Act positions, see H. R. Conf. Rep. No. 94-1559, p. 3 (1976). This recommendation prevailed.
[ Footnote 26 ] See, e. g., 122 Cong. Rec. 28865 (1976) (remarks of Rep. Armstrong) (a "freeze of the salaries"); ibid. (remarks of Rep. Yates) ("freeze the salaries"); ibid. (remarks of Rep. McClory) ("effectively eliminate the . . . cost-of-living increases"); id., at 28870 (remarks of Rep. Derwinski) ("freezing . . . pay at its current level"); id., at 28871 (remarks of Rep. Miller) ("stopping the pay raise"); id., at 28879 (remarks of Rep. Anderson) ("block a cost-of-living pay increase"); id., at 29132 (remarks of Sen. Taft) ("effectively freeze those salaries - the employees would not be given a cost-of-living raise on October 1, or a salary increase"); id., at 29164 (remarks of Sen. Allen) ("freezing the compensation"); id., at 29172 (remarks of Sen. Allen) ("denied the upcoming increase"; "salaries frozen at the September 30, 1976, level"); id., at 29372 (remarks of Sen. Bartlett) ("automatic pay raises . . . eliminated"); id., at 31892 (remarks of Rep. Shipley) ("no October cost-of-living increases would be made"; bill "proscribe[s] . . . the October cost-of-living pay increase[s]"); id., at 31896 (remarks of Rep. Riegle) ("elimination of the cost-of-living raise").
[ Footnote 27 ] See, e. g., 124 Cong. Rec. 17603 (1978) (remarks of Rep. Shipley) ("pay freeze"); id., at 17604 (remarks of Rep. Armstrong) ("automatic cost-of-living increases will not be permitted"); id., at 24375 (remarks of Sen. Sasser) ("freeze, during fiscal year 1979, the pay").
[ Footnote 28 ] See, e. g., 125 Cong. Rec. 27532 (1979) (remarks of Rep. Whitten) ("sharply decreas[es] such automatic increases"); id., at 27533 (remarks of Rep. Jacobs) ("rollback of the automatic 12.9-percent salary increase"); id., at 28019 (remarks of Sen. Byrd) ("put a cap on that pay increase"); id., at 28020 (remarks of Sen. Magnuson) ("this is in the nature of a cap, a limitation"); id., at 28108 (remarks of Rep. Conte) ("reduces from 12.9 to 5.5 percent the increase in pay").
[ Footnote 29 ] The Government asks us to invoke the rule that the law does not recognize fractions of a day, see, e. g., Lapeyre v. United States, 17 Wall. 191 (1873); it is argued that we should treat the President's assent as having been given at the start of October 1, the same time the Year 1 increase was to take effect. It is correct that "the law generally reject[s] all fractions of a day, in order to avoid disputes." 2 W. Blackstone, Commentaries [*]141. Here, however, the Government acknowledges that the statute was signed by the President after the Year 1 increase had taken effect. This Court, almost a century ago, stated:
In Burgess v. Salmon, 97 U.S. 381 (1878), this Court was required to look to the time of day when a statute was enacted as compared to another and related event. This Court held that, notwithstanding the general rule, a person could not be subjected to a civil fine for violating a statute passed on the same day he engaged in the conduct but after that conduct had occurred. To impose a penalty on an act innocent when performed would render the statute an ex post facto law. Id., at 384-385. Thus Burgess dealt not so much with benefits and penalties as it did with constitutional limitations on the legislative authority of Congress and the Executive. In the context of periodic increases, the Compensation Clause, like the Ex Post Facto Clause of Art. I, 9, places limits on Congress and the President. Because of the constitutional implications, the logic of Burgess applies to the statute for Year 1 and requires us to look to the precise time the statute became law by the President's action.
[ Footnote 30 ] We need not address the question of whether evidence of an intent to influence the Judiciary would invalidate a statute that on its face does not directly reduce judicial compensation. See Evans v. Gore, 253 U.S. 245, 252 (1920).
[ Footnote 31 ] In O'Malley v. Woodrough, 307 U.S. 277 (1939), this Court held that the immunity in the Compensation Clause would not extend to exempting judges from paying taxes, a duty shared by all citizens. The Court thus recognized that the Compensation Clause does not forbid everything that might adversely affect judges. The opinion concluded by saying that to the extent Miles v. Graham, 268 U.S. 501 (1925), was inconsistent, it "cannot survive." 307 U.S., at 282 -283. Because Miles relied on Evans v. Gore, O'Malley must also be read to undermine the reasoning of Evans, on which the District Court relied in reaching its decision.
[ Footnote 32 ] United States v. More (CC DC 1803), writ of error dism'd for want of jurisdiction, 3 Cranch 159 (1805), is not to the contrary. Congress had enacted a system of fees for compensating justices of the peace in the District of Columbia but subsequently abolished the fees. The Government brought an indictment against a justice of the peace who had continued to charge the fees, and the defendant demurred. The Circuit Court for the District of Columbia held that the compensation of justices of the peace in the District of Columbia was subject to the Compensation Clause and that a statute diminishing (here, abolishing) the fees violated the Constitution. Id., at 161, n. In More, the fee system was already in place as part of the justices' compensation when Congress repealed it. Here, by contrast, the increase in Year 2 had not yet become part of the compensation of Article III judges when the statute repealing it was passed and signed by the President.
[ Footnote 33 ] Indeed, it would be particularly ironic if we were to bind Congress to an indexing scheme for salaries when the Framers themselves rejected an indexing proposal. See supra, at 220. Of course, indexing techniques have improved since 1787. Nevertheless, Congress' repeated rejections of specific adjustments indicates some dissatisfaction with automatic adjustments according to a predetermined formula, even if not with the formula itself.
[ Footnote 34 ] Most positions covered, of course, are in the Executive Branch, which may explain the limited title.
[ Footnote 35 ] Several Members of Congress acknowledged the potential constitutional problem with rolling back the salary increase already in effect for judges. See 125 Cong. Rec. 27529-27530 (1979) (remarks of Rep. Latta); id., at 27531-27530 (remarks of Rep. Whitten); id., at 27533 (remarks of Rep. Jacobs); id., at 28022 (remarks of Sen. Stevens). Representative Whitten, the Chairman of the House Appropriations Committee, stated that "the courts will have to make a final determination regarding this issue." Id., at 27532. [449 U.S. 200, 232]