State ex rel. Schalk v. Wrightson

The opinion of the court was delivered by Vaht Syckel, J. The relator, who is one of the judges of the Court of Common Pleas of the county of Essex, asks for a mandamus commanding the clerk of Essex county to disregard the act of the legislature, passed March 14th, 1895, known as the County Court act. A supplement was passed to the act, March 22d, 1895 (Pamph. L., p. 647), and on the 13th of June, 1895, the act embodying the supplement was again passed. Pamph. L., p. 807. The relator claims that the act is unconstitutional, and bases his right to the mandatory writ upon that ground. It is admitted that this is the proper proceeding, on the part of the relator, to test that question, and we are thereby relieved of the consideration of any technical question of procedure. A case of such public importance, involving the powers of — 79 — a co-ordinate branch of the state government, as well as the due administration of public justice, is one which should not, under any urgency, be hastily decided. The questions involved have, therefore, received careful and deliberate consideration. The act which is assailed provides that the Inferior Courts of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery, and Courts of General Quarter Sessions of the Peace, in and for the several counties of this state, be and they are thereby abolished, and that a County Court be established in each of the counties of this state, to be known and designated as the “ County Court.” The judges of the court are to be members of the bar of this state, and are to be elected by popular vote. The justices of the Supreme Court of this state, together with the judges to be elected under this act, are to be judges of the County Courts, and any County Court may be held by any justice of the Supreme Court, or by any judge of any of the County Courts, or by any such justice and judge sitting together. . . The following are the provisions of the state constitution which bear upon the case: “There shall be no more than five judges of the Inferior Court of Common-Pleas in each of the counties of this state, after the terms of the judges of said court now in office shall terminate. One judge for each county shall be appointed every year, and no more, except to fill vacancies, which shall be-for the unexpired term only.” Const., art. 6, § 6. Article 7, section 2, is as follows : “Judges of the Inferior Court of Common Pleas shall be appointed by the senate and assembly in joint meeting.” This was changed by an amendment to the constitution in 1875, as follows: “ Judges of the Inferior Court of Common Pleas shall be nominated by the governor and appointed by him, with the advice and consent of the senate.” Article 6, section 1, is as follows: — 80 — “The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes as heretofore, a Court for the Trial of Impeachments, a Court of Chancery, a Prerogative Court, a Supreme Court, Circuit Courts, and such inferior courts as now exist and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish as the public good shall require.” In view of these provisions of the fundamental law of the state, it is contended by the relator that it is not within the power of the lawmaker to deprive the governor of the right, under the constitution, to appoint, by and with the advice and consent of the senate, the judges of the County Court established by the act of 1895. The case of Engeman v. State, 25 Vroom 247, does not control this controversy. All that the Engeman case decided is, that a justice of the Supreme Court was qualified to preside in the trial of an indictment in the Passaic Quarter Sessions. The fourth section of the act of 1855 expressly provides that justices of the Supreme Court shall be ex officio judges of the Common Pleas, Orphans’ Court and Quarter Sessions. The decision in the Engeman case was put upon the ground that the act of 1855 expressly provided that justices of the Supreme Court should be judges of the Quarter Sessions; that that provision was not superseded or repealed by any subsequent legislation; that its validity had been conceded by a continued course of practice since 1855, recognized by the executive, legislative and judicial departments of the government, and unchallenged by the bar, and that it was not open to controversy under the rule which had been applied by the Supreme Court of the United States in an early case, in which an effort was made to start a question as to the jurisdiction of the United States Circuit Courts. What was said in the opinion of the court with respect to the Common Pleas, the judge who delivered it was careful to qualify in the following language: — 81 — “ The constitution of the state provides no mode of selecting judges of the Court of General Quarter Sessions, nor does it fix their tenure of office; the clause relied on by the defendants relates only to judges of the Common Pleas. The power of the legislature, therefore, over the controverted subject is unrestrained by the fundamental law, and- the lawmaker in that respect is supreme.” It was not necessary to the decision of that case to consider whether a justice of the Supreme Court could, .by an act of the legislature, be constituted a judge of the Court of Common Pleas. Conceding that he could not, there was no infirmity in the act of 1855, so far as it expressly provided that he should be, ex officio, a judge of the Quarter Sessions. I entertain now no doubt whatever that the Engeman case was well decided. Nor can there be any question that the Court of Common Pleas may be altered in two respects—-first, as to the number of its judges; and secondly, as to the qualifications of those judges. If it is admitted that the legislature may extinguish that court, whenever, in its discretion, it deems that the public good requires it to be abolished, yet, in my judgment, so long as the court is substantially in existence, the provision of the constitution that “judges of the Inferior Court of Common Pleas shall be nominated by the governor and appointed by him, with the advice and consent of the senate,” stands as an insurmountable barrier to the election of those judges by the people, or to their appointment in any way other than that thus prescribed. The question in that case to be determined will be whether, according to the rule which should be applied to the exposition of the constitution, the Court of Common Pleas has lawfully been abolished by the “ County Court ” act. In Warner v. People, 2 Denio 272, the Court of Errors of New York held that when the constitution provides for the appointment to an office in a particular manner, the legislature has no power to create a new office for the performance of the — 82 — same or the principal part of the same duties, and to direct the appointment to be made in another manner. The constitution of New York required local officers to be elected by local constituencies. In People v. Draper, 15 N. Y. 532, the Court of Appeals declared that “ it is. not enough to take the case out of this provision of the constitution, that the names of the offices existing when the constitution was adopted are afterwards changed by an act of the legislature, or that their functions are colorably modified. The constitution regards substance, and not mere form.” In People v. Raymond, 37 N. Y. 428, the rule was strongly stated. In that case the constitution required city officers to be elected by the people.' The legislature passed an act to authorize the governor to appoint commissioners to review taxation. The court found that the duties charged on the new commissioners were substantially the same as those which, at the adoption of the constitution, had been performed by city assessors, and that it was not enough that the name of the officer was changed or his powers enlarged, to authorize the legislature to confer such power of appointment upon the governor, and, therefore, the act was held to be futile. In People v. Albertson, 55 N. Y. 57, Mr. Justice Allen, who delivered the opinion of the court, said: “ The constitution cannot be evaded by a change in the name of an office, nor can an office be divided and the duties assigned to two or more officers under different names, and the appointment to the offices be made in any manner except as authorized by the constitution ,• and courts will scrutinize acts of the legislature, and see that the constitution is not evaded, and its intent frustrated by a mere colorable change in the designation and title or the duties of an officer, when the appointment is taken from the locality, and will hold the act void, unless the change is real and substantial.” 117 Mass. 603; State v. Brunst, 26 Wis. 412, and State v. Leonard, 86 Tenn. 485, are like authorities, broadly upholding the same rule. The rule to be extracted from these cases is wise, and it — 83 — will at once appear to laymen as clearly as to those learned in the law that it is absolutely essential to give any stability to constitutional guarantees. The provision which the people embodied.in their written constitution to secure permanency in the mode adopted by them for the appointment of these judges is impotent, if it' can be evaded by changing the name of the court, or by altering or adding to the powers of its judges. The substance of the court is not its name. It is individualized, and will be recognized by its jurisdiction and the powers its judges may exercise under the constitution and laws of the state. It will be instructive, therefore, in the discussion of this case to compare the powers heretofore exercised by the judges of the Common Pleas with those granted to the judges to ;be elected under the County Court bill. The Courts of Oyer and Terminer, Courts of Common Pleas and Courts of Quarter Sessions were in existence long prior to the adoption of the constitution. The first constitution of this state, adopted in 1776, provided that judges of the Court of Common Pleas should be appointed by the council and assembly, and hold their office for the term of five years. No mode is prescribed in the constitution for appointing judges of the Oyer and Terminer and of the Quarter Sessions, and-no judges have ever been chosen to sit exclusively as judges in either of these courts. Long before the adoption'of the constitution of 1844, the legislature provided by statute that the judges of the Court of Common Pleas should be the judges of the Quarter Sessions, and that they should also be judges of the Oyer and Terminer. To constitute the latter court, the presence of a Supreme Court justice was necessary. These statutes are still in force; they have never been repealed. When the constitution was last amended, the judges of the Common Pleas sitting in the Quarter Sessions had power to try all criminal cases except treason, murder and'man84 slaughter, and more recently the jurisdiction of the Sessions, in counties having a law judge, has been extended to cases of manslaughter. By the sixth section of the act of June 13th, 1895, it is provided “ that the County Courts in the several counties in the state shall have jurisdiction and cognizance of all crimes, misdemeanors and offences whatsoever which by the laws of this state are or shall be of an indictable or presentable nature, and which have been or shall be committed, doné or attempted within the counties respectively, and of causes of civil and penal action arising therein; and the said County Courts shall have, and they and each of them are hereby invested with and may exercise all the jurisdiction, powers and authority heretofore conferred upon or lawfully exercised by any and all of the courts mentioned in the first section of this act (which are the Oyer and Terminer, Common Pleas and Quarter Sessions), both by way of original jurisdiction and on appeal; and for the purpose of properly hearing and determining the matters and causes of action committed to said County Courts in and by this act, and to facilitate the administration by said courts of the laws applicable to such matters and causes of action, it shall be lawful for said courts to proceed in the manner and according to the methods, rules and practice heretofore provided, established and prevailing in any of the courts hereby abolished, until such methods or practice shall be changed by rules, as provided in this act or otherwise, according to law; and all proceedings and acts had and taken before such County Courts shall be of the same validity, force and effect as if the same were had and taken prior to the passage of this act before the several Courts of Oyer and Terminer, General Quarter Sessions of the Peace and the Courts of Common Pleas of the state; and every judge of a County Court shall have and may exercise all the rights and powers which have heretofore been vested in or exercised by any judge or law judge or president or presiding judge, or by the judges of any of the said courts acting or sitting together, and shall perform all duties heretofore imposed on or required of any such judge — 85 — or judges; provided, that a justice of the Supreme Court shall preside at the trial of any presentment or indictment for a crime punishable with death.” The fifth section provides that the ministerial officers of the courts declared by the act to be abolished shall be the ministerial officers of said “ County Court.” The eighth section provides that all suits and proceedings pending in the courts abolished, at the time the “County Court” assumes jurisdiction, shall be continued in the “ County Court ” as if originally commenced therein. Erom this recital it appears that the jurisdiction and power committed by this act to the “ County Court ” differs in no substantial respect from that hitherto exercised by the judges of the Court of Common Pleas. The infirmity in this legislation, according to the doctrine established by the cases cited, in my judgment, consists in the' fact that it does not (notwithstanding the declaration to that effect in its first section) abolish the courts therein specified, but leaves the judicial machinery, except in name, substantially unaltered, while it provides a mode of electing the judges, inimical to the paramount law. In fact, the bill with admirable care and circumspection preserves and perpetuates the existing status of our judicial system, so far as these courts are concerned, except as to mere form and name, and the current business in each court declared to be abolished flows smoothly on, without a ripple, under the new name of the court as if the act had not been passed. The authorities to which reference has been made establish the doctrine that the legislature cannot, by adding to or subtracting from the duties of a given office, or by uniting one office to another, acquire the right to appoint in a manner' other than that prescribed by the supreme law. Admitting this, which the judiciary has so often asserted to be a sound and salutary doctrine, to be the law of this ease, how can the fact that the Common Pleas is merged with the Sessions, confer upon the legislature the power to disregard the constitution in the mode of appointing judges? If it — 86 — does, then the legislature might create a new inferior court, and thereafter, by declaring that it should be merged with the Common Pleas under a new name, arrogate to. itself the right to select its own mode of appointing the judges. The right, to appoint judges of the Common Pleas was at first lodged by the present constitution in the senate and assembly in joint meeting, and no way was known in which that power could be withdrawn, except by a constitutional amendment, which in 1875 transferred it to the governor, and it is now one of his prerogatives. The constitution furnishes slight support to it in his hands, if it can be wrested from him by such legislation. If the legislature should provide that the Common Pleas shall, in addition to its present functions, have all the juris-, diction now exercised by the Quarter Sessions, could it.be successfully maintained that legislation could change the method of creating its judges ? In what respect would the case differ, if the legislature declared that the jurisdiction of the Common Pleas should be transferred to the Sessions, and that the two jurisdictions should be exercised under the name of the Quarter Sessions ? . If we regard substance and not mere form, in neither case could judges, appointed in contravention of the provision of the fundamental law, be qualified to act. . The “ County Court ” bill would produce substantially the same results, except as to the mode of selecting the judges, if it consisted of a single section providing, that hereafter there shall be but one judge of the Court of Common Pleas, who shall be a member of the bar of this state, and he may hold, the Quarter Sessions and Oyer and Terminer, with or without the presence of the Supreme Court justice, in all cases except those punishable with death. Under such a bill the three courts would severally retain their names; under, the “ County Court ” bill they are embraced under a single name. That is simply form and not substance. The judges would be the same, the jurisdiction the same, the ministerial officers — 87 — the same, and the mode of procedure the same. The conspicuous difference would be an elective judiciary. An attempt to engraft that feature upon an act drawn in the form suggested would unhesitatingly be condemned as an encroachment upon the organic law. The two bills would produce almost identical conditions, and if the sphere within which legislation is admissible is not circumscribed in the one case, it cannot be in the other; if it is in the one case, it must be in the other. The provision authorizing the legislature to alter or abolish the inferior courts must be read with the clause prescribing the mode of appointing judges of the Common Pleas. If we concede that the Court of Common Pleas may be abolished, then, in my judgment, the true interpretation of the language used, in order to give due significance to both of said clauses, is that the legislature may alter the Court of Common Pleas by reducing the number of its judges to any number less than five, and by prescribing the qualifications of such judges, and when the legislature shall conceive that there is no longer a requirement for the exercise of the judicial functions which have been committed to that court, it may pass an act declaring that the court is abolished, and then it will cease to be a part of our judicial system. But so long as the constitution remains unchanged, and so long as the jurisdiction vested in that court, at the time of the adoption of the constitution and its amendments, is preserved for the benefit of the people, it must be exercised by a court, the judges of which are appointed as heretofore. It was intended not merely to protect the name of the court, but to shield from successful assault by legislation the jurisdiction designated or characterized by the name of the court at the time the constitutional guarantee was adopted, so far at least as to forbid such jurisdiction to be transferred bodily, as it has been in this case, to be exercised by judges not appointed as the constitution prescribes. If to this limited extent there is not a restraint upon hostile legislation, these provisions are without the dominant quality of constitutional — 88 — guarantees, leaving the legislature free to do by indirection what it cannot do directly. The right, to abolish gives absolute control, and these provisions are useless if our construction is not accepted. Thus far this discussion has proceeded upon the assumption that the existence of the Court of Common Pleas has no stable foundation in the organic law of the state, a proposition which I cannot concede. The language of the first section of article 6, above recited, is unquestionably broad enough to embrace the Common Pleas within the power given to the lawmaker to alter or abolish, and, if that section stood alone, no other interpretation could well be given to it. But when we remember that there were, at the time the constitution was adopted, inferior courts other than the Common Pleas, to which that section clearly refers, namely, the Oyer and Terminer and the Quarter Sessions, and in that connection read two other clauses of the constitution, a very different question is presented. The two clauses referred to are as follows: First. “There shall be no more than five judges of the Inferior Court of Common Pleas in each of the counties of this state, after the terms of the judges of said court now in office shall terminate. One'judge for each county shall be appointed every year, and no more, except' to fill vacancies, which shall be for the unexpired term only.” Second. “Judges of the Inferior Court of Common Pleas shall be nominated by the governor and appointed by him, with the advice and consent of the senate.” Here we have provisions relating exclusively to the Common Pleas, providing the mode of appointing judges, their maximum number and their tenure of office, not susceptible of' change by the legislature, and at the same time authority granted by clear implication to the legislature to reduce the number of judges and to say what their qualifications shall be These specifications, designating clearly in what respects the Court of Common Pleas is above and' beyond the read — 89 — of legislation, and in what particulars it may be altered by legislation, justify and lead to the inference that it was not intended to be classed with the inferior courts, which the legislature has a general and unlimited power to alter .or abolish under the first section of article 6. The Common Pleas is placed on a higher plane than the other inferior courts, and it was the purpose of-t-he constitution to give it a permanency, and stability not secured to the Oyer and Terminer or the Quarter Sessions. Why the provision pertaining to the Common Pleas alone was incorporated in the first constitution and preserved with additional sanctions in 1844, and why it was deemed necessary to resort to amendment of the constitution, in 1875, to alter it, unless it was intended and understood that.the court had a basis so deeply and securely laid in the supreme law that it could not otherwise be successfully assailed, I have been unable to perceive after most mature reflection. If my judgment is at fault, a striking want of sagacity has been displayed by the framers of the constitution and the able jurists who have hitherto construed it. For a century and a quarter this exposition of the constitution has been universally, acquiesced in, so far that no attempt has, until the present time, been made by the legislature to assert its right, either to abolish the Court of Common' Pleas or to change the method of selecting the judges who are to exercise the jurisdiction which resides in that court. So pronounced has been the opinion of jurists that legislation in this respect is absolutely interdicted, that when the constitution was amended in 1875, and the clause giving to the governor the appointment of these judges was adopted without striking out the clause giving the power to the joint meeting of the legislature, the constitution was again attempted to be amended, to get rid of the earlier provision. It was not even suggested that the time and expense necessary to cure this omission could be saved by an act similar to the one now in question. ' Under the view which has been taken of this subject, it — 90 — is not. deemed necessary to discuss the question whether the Common Pleas judges now in office can be legislated out of office before the expiration of the term for which they were appointed. In my opinion, the act of 1895 is unconstitutional and void. The relator, who legally holds the office, of judge of the Common Pleas of the county of Essex, is entitled to the mandatory writ of this court to restrain an illegal attempt, under the color of law, to elect a judge to supersede him. Mr. Justice Lippincott concurs in this opinion.