State v. Hudspeth

The opinion of the court was delivered by Dixon, J. The mandamus contained in this record is a peremptory writ in form, but it was treated in the Supreme Court and on argument here as an alternative writ, and therefore will be now so regarded. The defendant filed a demurrer to it, and the relator having joined in the demurrer, the Supreme Court gave final judgment for the defendant. The first question to be considered is whether, upon such a judgment, error will lie. At the common law a peremptory writ of mandamus was always awarded or denied on the return to the alternative writ. If the return was, on its face, insufficient, it was — 528 — quashed and a peremptory writ was awarded. If the return was, on its face, sufficient, a peremptory writ was denied, unless the relator, by a separate action against the defendant to recover damages for making a false return, obtained a final judgment that the return was false aud so vindicated his right to a peremptory writ. On an award of the writ in-such proceedings error would not lie. King v. Dean and Chapter of Dublin, 1 Str. 536; S. C. on error, 1 Bro. P. C. 73. The reasons for this rule, which are given only in the King’s Bench report, were partly technical and partly substantial—technical, in that the proceedings contained no formal judgment (ideo consideratum est); substantial, in that the right was not there adjudicated, but either was confessed by the defendant in his return or had been established in the action for a false return. The same rule holds in New Jersey, when the common law procedure is followed. Layton v. State, 4 Dutcher 575; American Transportation Co. v. New York, Susquehanna and Western Railroad, Co., ante p. 156. So, also, did it in New York. People v. Brooklyn, 13 Wend. 130. But the statute of 9 Anne, c. 20, did away with the reasons for this rule, in the cases which it covered, by providing' that the relator might plead to or traverse the material facts contained in the return, and that the person making the return should reply, take issue or demur, and thereupon such further proceedings should be had as if the relator had brought his action for a false return, and the relator might have judgment for damages and costs or the defendant might have judgment for costs. Under this statute there was a real determination-of the rights of parties and a formal judgment for the successful litigant, and accordingly Blackstone says that in cases within the statute the proceedings are in the nature of an action, and a writ of error may be had thereupon. 1 Bl. Com. 265. To the same purport is the editor’s head-note in 1 Bro. P. C. 73. So, also, Littledale, J., in Rex v. Mayor, &c., of London, 3 Barn. & Ad. 255, 281. — 529 — On December 2d, 1794, a statute was passed in New Jersey extending to all cases the procedure prescribed in 9 Anne, o. 20. Gen. Stat., p. 2000. A like statute was also passed in New York. Under these laws a somewhat different practice obtained in this country from that pursued in England. There the words of the act were very closely adhered to, and as they do not in terms authorize a demurrer to the return or to the alternative writ, the practice was to challenge their sufficiency in law, not by a formal demurrer, but on a con-cilium., which was in the nature of a demurrer. Rex v. Margate Pier Co., 3 Barn. & Ald. 220; Rex v. London, 3 Barn. & Ad. 255, 279; Rex v. Oundle, 1 Ad. & E. 283; Regina v. St. Saviour, 7 Id. 925; Regina v. Ledgard, 1 Q. B. 614. Whether the determination of the court on such an argument was reviewable by writ of error seems doubtful, the negative apparently being assumed in Rex v. Margate Pier Co., supra, and in Rex v. Oundle, supra, and the affirmative in Regina v. St. Saviour, 7 Ad. & E. 936, and in Regina v. Kendall, 1 Q. B. 366. Afterwards the statute 6 and 7 Vict., c. 67, authorized a demurrer to the return and expressly gave a writ of error in any case within the acts. But in New York and New Jersey the practice of demurring to the return always prevailed. People v. Champion, 16 Johns. 60; Ex parte Jennings, 6 Cow. 518, 536; Silverthorne v. Warren Railroad Co., 4 Vroom 173; S. C., Id. 372; Munday v. Rahway, 14 Id. 338, 348; Gallagher v. Board of Public Works, 16 Id. 465. And in both states the practice was commended as one enabling either party to review the judgment by writ of error. Per Spencer, J., in 16 Johns. 65 (1819), and per Beasley, C. J., in 4 Vroom 178 (1868). See, also, Commercial Bank v. Commissioners, 10 Wend. 25. Erom all these authorities it appears to be beyond doubt that, when the proceedings for mandamus take the form of pleadings in personal actions, so that the rights of the parties are presented for determination therein and a final judgment is rendered, a writ of error lies according to the principles of the common law. The statute of March 17th, 1870 (Gen. — 530 — Slat, p. 2001), expressly sanctioning such writs of error, was merely declaratory of an existing right. A still wider departure from the letter of the statute of 1794 has taken place in this state, viz., the practice of demurring to the alternative writ itself. Fairbank v. Sheridan, 14 Vroom 82; Rader v. Township of Union, Id. 518; Hopper v. Freeholders, 23 Id. 313; Wilbur v. Trenton Passenger Railway Co., 28 Id. 212. This practice is justified on the ground that it tends to simplicity without in the least jeopardizing any right, and is in harmony with the modern idea, which likens the application for a mandamus to a personal action and the alternative writ to a declaration therein. As a demurrer to the return opens for examination the contents of the writ itself (Belvidere v. Warren Railroad Co., 5 Vroom 193, 195), and final judgment thereon is subject to review by writ of error, there is no reason why the same matter may not be considered on a demurrer directly aimed at the writ, or why the judgment on that matter so determined should not be similarly reviewed. For these reasons we think the present writ of error should be sustained. Consequently, we come to the merits of the question decided below, which is whether the relator was entitled to exercise the functions of a judge of the Court of Common Pleas in the county of Hudson. This question turns upon the validity of the act of March 26th, 1896 (Pamph. L., p. 149), which enacted that after March 31st, 1896, there should be but one judge of that court in each county; that he should be the president law judge then in office and his successors, and that the terms of office of all other judges of said court should end on March 31st, 1896. The relator contends that, under the constitution of this state, the legislature has no power to reduce the number of judges in this court, and therefore the act is invalid. The pertinent provisions, as found in the constitution of 1844, are these: Article 6, section 1—“The judicial power shall be vested in — 531 — 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.” Article 6, section 6—“ 1. There shall be no more than five judges of the Inferior Court of Common Pleas in each of the counties in 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. “ 2. The commissions for the first appointments of judges ■of said court shall bear date and take effect on the first day of April next, and all subsequent commissions for judges of .said courts shall bear date and take effect on the first day of April in every successive year, except commissions to fill vacancies, which shall bear date and take effect when issued.” Article 7, section 2—“2. Judges of the Courts of Common Pleas shall be appointed by the senate and general assembly in joint meeting. They shall hold their offices for five years, but when appointed to fill vacancies, they shall hold for the -unexpired term only.” Article 6, section 6, and article 7, section 2, taken together, seem to indicate that the number of judges in this court for -each county was fixed at five. This is the natural purport of the provisions that one judge, and no more, for each county, shall be appointed every year; that the commissions of judges of this court shall take effect on the 1st day of April in every successive year, and that they shall hold their offices for five years. While the first clause of article 6, section 6, that there shall be no more than five judges in each county, may be thought to contain an implication that there might lawfully be less, yet this implication is hardly clear enough to countervail the express provisions before mentioned. The language of that clause is readily accounted for by the fact .that the number had previously been large and indefinite. — 532 — But article 6, section 1, expressly authorizes the legislature to alter or abolish this court, and of course due effect must be given to these words. Indisputably, the abolition of the court must end the functions of the judges, and if the legislature should exert its power to abolish the court, there could not remain five or any persons authorized to act as judges thereof. But the alteration of the court need involve no such consequence. The power to alter the court could have reasonable scope without including the power to change the number of judges. If, therefore, this were res integra, my interpretation of the constitution would be that, so long as the legislature left the Court of Common Pleas in existence, its judges must be five in each county, one appointed every year, and holding his office for the term of five years, except when appointments were made to fill vacancies, but that the legislature could at any time abolish the court, and thereby end the functions and terms of the judges. This, I think, would accord due force to every word of the organic law on this subject. But the matter is not res integra. On February 9th, 1855, the legislature passed an act to reduce the number of judges in the Court of Common Pleas to three and empowering justices of the Supreme Court to sit as judges in the lower court. This act was approved by the governor. It contravened the above intérpretation of the constitution, and also the apparent purport of the clause which required judges of the Common Pleas to be appointed by the two houses in joint meeting for a term of five years, for justices of the Supreme Court were appointed by the governor and senate for a term of seven years. Since that statute many others have been enacted changing the number of judges in this court. See Pamph. L. 1859, p. 421; Id. 1868, pp. 363, 580; Id. 1869, pp. 105, 306, 681; Id. 1871, p. 925; Id. 1878, pp. 315, 533; Id. 1880, pp. 240, 397; Id. 1885, p. 414; Id. 1889, pp. 492, 495. It is thus seen that for a period of over forty years, beginning shortly after the adop — 533 — tion of the constitution, the legislature has claimed the power to alter the number of judges and to determine who shall compose the Court of Common Pleas. Not only have the executive and judicial departments acquiesced in this claim, but whenever the matter has been presented to either of them the claim has received their sanction. Tims, in 1875, an amendment of the constitution transferred the power of appointing the judges to the governor with the consent of the senate, and since that time he has appointed, not one every year, but only so many as the statutes required. Since the passage of the act of February 9th, 1855, the justices of the Supreme Court have sat as members of the Common Pleas under this legislative authority only, and whenever questions as to the composition of the Court of Common Pleas have been raised, the higher courts have always had recourse to the statutes, not to the constitution, for their solution. Thus, every department of the government has, for more than a generation, gathered from the constitution a meaning which confers upon the legislature power to alter the Court of Common Pleas in the respects stated. This uniform construction, begun so soon after the fundamental law was framed and continued so long, must be regarded as settling the meaning of that instrument in clauses which are of themselves somewhat contradictory. The authorities for resorting to this practical construction in the exposition of the organic law are presented with such fullness by Mr. Justice Depue’s opinion in State v. Wrightson, 27 Vroom 126, 206, that they need not be here collated. Other cases may be found cited in 23 Am. & Eng. Encycl. L. 340, and a very recent decision is Commonwealth v. Reeder, 33 Atl. Rep. 67; S. C., 33 L. R. A. 141. It is further insisted that, even if this long-continued usage controls, yet, as the legislative practice has been to retain the judges in office until their terms ended by lapse of time, the act of 1896 was unwarranted in its attempt to deprive the judges of their functions before their prescribed terms had expii’ed. But in this position due regard is not given to the force — 534 — of the usage. Its proper effect is to define the scope of the clause which empowers the legislature to alter the court so as-to make it inclusive of the power to change the number of the judges. If we then ask, when may such an alteration of the court take place? the words of the constitution furnish the-answer: The legislature may alter the court “ as the public-good shall require.” Such words, annexed to a legislative-power, confer upon the legislature the absolute authority to determine when its exercise shall take effect. If the legislature enacts that the change shall occur at once, the courts-cannot adjudge that it shall occur only as pending terms expire. The fact that heretofore the legislature has thought the public good required changes to be made in the number of judges, only in consonance with the reasonable expectations-of the then incumbents, cannot prevent the legislature from now forming a different opinion as to the present requirements-of the public service, nor confer upon the courts any right to-supervise the discretion of the legislature. Our conclusion, therefore, is that on and after March 31st,. 1896, the relator was not entitled to sit as a judge of the-Court of Common Pleas of Hudson county, and the judgment of the Supreme Court should be affirmed. Magie, J. I vote to affirm the judgment in this, case upon the grounds stated by Mr. Justice Depue in his opinion-in the Supreme Court, with which I entirely concur. For affirmance—The Chancellor, Dixon, Garrison,. Lippincott, Magie, Barkalow, Dayton, Hendrickson, Krueger, Nixon. 10. For reversal—None.