ionally sit as circuit judges, he pointed to practice and
acquiescence contemporaneous with the Constitution as an interpretation
too strong and obstinate to be shaken or controlled.

Abolition of the Commerce Court

Since 1802 Congress has many times exercised its power to constitute
inferior courts, but not until 1913 did it again abolish a court. This
was the unfortunately launched Commerce Court from which so much was
expected and so little came. Again, as in 1802, there was a
constitutional debate on the power of Congress to abolish courts without
providing for the displaced judges, but unlike the act of 1802 the act
of 1913[99] provided for the redistribution of the Commerce Court judges
among the Circuit Courts of Appeals and the transfer of its jurisdiction
to the district courts.[100]

COMPENSATION

The prohibition against the diminution of judicial salaries has
presented very little litigation. In 1920 in Evans _v._ Gore[101] the
Court invalidated the application of the Income Tax as applied to a
federal judge, over the strong dissent of Justice Holmes, who was joined
by Justice Brandeis. This ruling was extended in Miles _v._ Graham[102]
to exempt the salary of a judge of the Court of Claims appointed
subsequent to the enactment of the taxing act. Evans _v._ Gore was
disapproved and Miles _v._ Graham in effect overruled in O'Malley,
Collector of Internal Revenue _v._ Woodrough,[103] where the Court
upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a))
which extended the application of the Income Tax to salaries of judges
taking office after June 6, 1932. Such a tax was regarded neither as an
unconstitutional diminution of the compensation of judges nor as an
encroachment on the independence of the judiciary.[104] To subject
judges who take office after a stipulated date to a nondiscriminatory
tax laid generally on an income, said the Court, "is merely to recognize
that judges are also citizens, and that their particular function in
government does not generate an immunity from sharing with their fellow
citizens the material burden of the government whose Constitution and
laws they are charged with administering."[105]

Diminution of Salaries

The Appropriations Act of 1932 reduced "the salaries and retired pay of
all judges (except judges whose compensation may not, under the
Constitution, be diminished during their continuance in office)," by
8-1/3 per cent if below $10,000, or t