59 N.J.L. 320 | N.J. | 1896
The opinion of the court was delivered by
The relator was commissioned a judge of the Inferior Court of Common Pleas of Hudson county on the 1st day of April, 1892, for the full term of five years. He duly qualified and entered upon the duties of his office. His term of office, in virtue of his appointment, would have continued until the 1st day of April, 1897.
By an act entitled “An act to reduce the number of judges of the Inferior Court of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery, Orphans’ Courts, Courts
The appointment to a public office is not a contract the impairment of the obligation of which is forbidden by the federal constitution. Butler v. Pennsylvania, 10 How. 402. An appointment to office is neither a contract nor is the office or its prospective emoluments the property of the incumbent. Upon general principles of law the office itself and its emoluments are within the control of the government, and the legislative branch of the government, whenever, in its judgment, public policy requires it, may declare the office vacant or transfer its duties to another officer, although the effect may be to remove the officer before the expiration of the term for which he was appointed. City of Hoboken v. Gear, 3 Dutcher 265; Conner v. Mayor, 1 Seld. 285; People v. Warner, 7 Hill 81; S. C., 2 Denio 272; Smith v. Mayor, 37 N. Y. 518; Taft v. Otis, 3 Gray 126; Thr. Pub. Off., § 19; Mech. Pub. Off., §§ 463-465; 8 Rul. Cas. 266, and cases cited. If there be any limitation upon the power of the legislative department of the government over the tenure of public offices, it must be found in a constitutional inhibition, arising from the fact that by constitutional prescription the tenure and term of office are put beyond legislative control.
Section 1 of article 6 of the constitution, under the title of “Judiciary,” ordains that “The judicial power shall be vested iin 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,
To overcome and set aside the force and effect of the express grant of power to the legislature over these courts, the counsel of the relator invoke section 6 of article 7 and section 2 of article 7 of the constitution. The first of these sections provides (1) that “there shall be no more than five judges of the Court of Common Pleas in each county of this state, after the terms of the judges of said court now in office shall terminate. (2) One judge for each county shall be appointed every year, and no more, except to fill vacancies for the unexpired term only. (3) 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 forjudges of said court shall bear date and take effect on the first day of April in every successive year, except com
On those constitutional provisions the relator’s counsel contend that the legislature cannot alter this court so that one judge shall not be appointed every year; nor so that the commission of a judge shall not bear date and take effect on the 1st day of April in each successive year; nor so that the judges appointed shall not hold their office for five years. These contentions are within the terms of the two constitu - tional provisions on which they rest. But it will be observed that if these two sections are to have a dominating effect upon the subject there would always be five judges of this court in office by constitutional mandate, and the power granted to-the legislature by section 1 of article 6 would become nugatory. In that situation, there being always five judges in office with the constitutional mandate to keep up the number by annual appointments for the prescribed terms, these courts-could never be abolished by the legislature. In that view the framers of the constitution, in one article, granted to the legislature power to abolish these courts, and by other articles so fixed the tenure of the judges that the power to abolish was abrogated.
I am unwilling to concur in a construction that leads to-such a result. The power is conferred upon or reserved to-the legislative department of the government. It relates to. a subject which, under our form of government, lies within the-domain of the functions of a legislature. It is expressed in terms as comprehensive as language furnishes—“ to alter or abolish ”—and excludes all limitations upon the exercise of' the power by the prescription that the power may or may not be exercised, “ as the public good may require.” So long as-
As early as 1854 a joint resolution was passed by the legislature authorizing the appointment of commissioners to report amendments of the judicial system of this state. Pamph. L.,' p. 544. These commissioners made report to the legislature of 1855 of a series of acts making extensive and radical' changes in our judicial system and course of procedure. The first of the series of acts in their report is an act entitled “An act to reorganize the courts of law.” The fourth'section of the act provided that the justices of the Supreme Court should be ex officio judges of the Inferior Court of Common Pleas;, and by the fifth section it was provided that after the 4th of July then next there should be no more than three judges of the Inferior Court of Common Pleas in each county, exclusive of the justices of the Supreme Court. This act was passed by the legislature February 9th, 1855. Pamph. L., p. 17. The two sections quoted have been in force since the act was passed. They appear in the revision of 1875 as section 42, page 219, and section 59, page 221. These sections contain radical changes in the constitution of the court. By this act the number of judges of the Inferior Court of Common Pleas was reduced from five to three, and the appointment of one judge in every year became impracticable. The alteration effected by this legislation can be vindicated only under the legislative power over these courts.
The commissioners by whom the act of 1855 was reported and recommended were Joseph F. Randolph, previously a justice of the Supreme Court; Martin Ryerson, subsequently a justice of the Supreme Court, and John P. Stockton, the present attorney-general. Of the eminence of . these commissioners in their profession, and their familiarity with the
We have in the action of these commissioners, of whom two were members of the constitutional convention which framed the constitution, what may. be considered a contemporaneous construction. And for upwards of forty years justices of the Supreme Court have sat in the Common Pleas and performed the duties of judges of that court. We have, therefore, contemporaneous construction and long usage, approved by the legislative and judicial departments of the government, in exposition of these several constitutional provisions. The terms in which the power of the legislature over these courts is expressed are so explicit that when the power is exercised by the legislature other constitutional prescriptions relating to the tenure and terms of office of the incumbents, which would otherwise restrain or embarrass the exercise of such power, must give way. If there be any doubt on that subject, contemporaneous exposition and long usage must resolve that doubt. In the recent case in this court in which the power of the legislature to deprive the executive of his prerogative of ¿ppointing the judges of these courts was involved, the power of the legislature to reduce
The public policy sought to be accomplished by this legislation was the exclusion of what is known as the lay element from these courts, constituting the courts of law judges. The act of 1855 retained the judges who were in office when the act was passed until the expiration of the terms for which they were appointed. The legislature, in passing the present act, appears to have deemed it proper to vacate the offices of the lay judges who were then’ in commission, in order to effectuate the policy upon which this legislation was founded. With the justice and expediency of this feature of the act of 1896 we can have no concern. The power of the legislature in the premises is the sole issue that is committed to the judiciary. We have seen that an appointment to and acceptance of an office is not a contract; that neither the office nor its emoluments are property in the incumbent, and that it is competent for the legislative department of the government to remove the incumbent from his office before the expiration of the term for which he was appointed or elected, unless such legislation is interdicted by force of some constitutional prescription. The act of 1891, which removed the judges of the District Courts of this state from office, is a recent example of the exercise of this power by the legislature. Gen. Stat, p. 1264. It appears from the state of the case that the term of office for which the relator was commissioned would not expire until April, 1899, and that the terms of other judges of this class in the state would expire in 1897, 1898
The rule to show cause should be discharged.