Vreeland v. Byrne

VREELAND, JR., AL., ET PLAINTIFFS-RESPON JAMES P. BYRNE, DENTS, T. GOVERNOR OF v. HON. BRENDAN JERSEY, AL., ET DEFENDANTS-APPELLANTS. NEW ASSOCIATION, AL., ET TAXPAYERS MORRIS COUNTY WILEY, PLAINTIFFS-RESPONDENTS, v. STEPHEN B. DEFENDANT, BYRNE, T. AND BRENDAN GOVERNOR AL., JERSEY, ET DEFEND OF STATE OF THE NEW ANTS-APPELLANTS. February Argued 11, 1977. November 1976 Decided STcillman, General, argued Attorney Assistant Mr. Stephen Attorney Hyland, William F. (Mr. cause for appellants Mr. of counsel Slcillman attorney; Jersey, General of New brief). and on the Sheridan, Jr., cause respond- P. argued

Mr. John Yreeland, Jr., et al. P. ents, James Fucetola, III, Mr. argued the cause for Ralph respondents, Morris County Association, et al. Taxpayers delivered opinion the court was J. This appeal presents question

Mountain, constitutionality of the nomination of B. Stephen Wiley to the office of New Supreme Associate Justice Court of The trial Jersey. ruled that un- judge nomination was as being violation of Const., Art. 4, 5, 1, which as reads follows: § ¶ Assembly, during member of No the Senate or General term elected, nominated,

for which he shall been have shall be or elected appointed position, profit, civil or State office which shall by law, have been created or the emoluments whereof shall have been by law, during provisions para- increased such term. The of this graph prohibit any person shall not the election or Governor Assembly. as a member of the Senate General Const., 5, [N. J. Art. 1] ¶ The facts are Wiley was dispute. elected to the New November, State Senate in Jersey took office January 8, 1974. His term will four-year expire January 10, 1978. In 1974 the New Jersey Legislature passed and alia, law, there was enacted which, into inter statute in- creased the annual salaries of Associate Justices the Sut $45,000 preme $48,000. Court L. c. effec- tive June 1974.1 The enactment contains the following provision: salary provided ap The in increases for in this shall be act not present plicable any Assembly member of the Senate or General diu-ing the for which term he shall been have elected should such appointed

member hereаfter be offices in enumerated section 1 of J. [N. :1A-8] this act. S. A. 2A will It noted that one the offices enumerated in section 1 is “Associate Justice of the Court.” Supreme seq.

1 The A. act now J. S. 2A :1A-6 et 1975, W. Hall March Associate Justice Frederick On in the office creating vacancy retired from the bench Supreme September Court. On Associate Justice of office Wiley Senator nominated Byrne 1976 Governor vacancy. Jersey New to fill this of Associate Justice votes. five dissenting the nomination with Senate confirmed ensued, Senator which immediately Because of the litigation Justice, as an Associate has the oath of office Wiley not taken duties. any judicial nor he has undertaken Wiley actions challenging Tavo declaratory judgment Law Court, filed the Superior nomination were promptly tax- by was first, County, brought Morris Division. Governor Byrne, Senator Wiley, payer groups against and the Gen- Attorney HeAV Senate Jersey President of the second, members County eight eral. The filed in Mercer and the State Senate, the Governor Jersey joined New as Both suits charged of New defendant. Jersey parties he for which ineligible, Senator term Wiley during Senator, vacancy had nominated to fill the been elected Court, the emoluments of that office because Supreme his senatorial had been law term. during increased There no dis consolidated. being The two actions were fact, Schoch, argument, after hearing issues of Judge puted 30, 1976, on September holding an oral opinion rendered Const., of N. J. Art. the nomination invalid as violation above. ¶1, quoted §5, Di- filed notices to the appeal Appellate Defendants then this Court for direct cer- vision and moved before for an accelerated Both tification and motions argument. immediately granted. were oral sua

Shortly argument, Court, after hearing sponte, parties supplemental upon directed to file briefs issue, raised, to whether N. J. A. as S. theretofore does, N. 2A:1A-6 J. S. A. 2A: containing et seq., Const., above, in violation of N. Art. 1A-8, set forth states that: 9(5), ¶ special pass any private, Legislature or local laws: shall not The *(cid:127) * * * # decreasing emoluments, increasing Creating, or (5) term or Const., any public employees. rights [N. Art. J. officers tenure 4, 7, 9(5)] § ¶ this are the view that of this Court Eour members which form, is statute, special legislation in present its to 4, 7, Art. All Const., 9(5). parties N. violates J. ¶ § N. A. 2A: for S. concede that were not J. the litigation in of N. J. would violation 1A-8, clearly nomination concluded Const., 4, 5, majority Art. 1. Since have § ¶ salary 2A :1A-8 of N. J. S. A. renders that the presence in application legislator-ap unconstitutional its statute therefrom, excised it follows must and hence pointees, nomination cannot stand. with furthermore, agree members of the majority, Three the statute allowed stand the trial even were court would nonetheless violence to intact, the nomination do 5, N. Art. 1. Const., J. ¶ §

I issue, first to the resolution of We address the L. c. now whether majority agreement, there A. form, is, J. S. 2A:1A-6 et seq. special its present the emoluments officers legislation increasing public Const., 9(5). hence N. J. Art. prohibited ¶ final argument of centers upon course section act, which, convenience, we restate here: ap- salary provided not be increases this act shall plicable Assembly present any General member the Senate or during the such term for which he shall have been elected should appointed member hereafter be offices enumerated section 1 of act. :1A-8] 2A A. [N. S. — emoluments the statute increases It disputed no other and deals with no purpose indeed it other has — subject nor that Associate Justice of the Supreme Cоurt ais officer. public Thus it seems conceded subject matter of the enactment falls within one of the of categories legislation that can be constitutionally enacted only by then, law. general The only issue, question is whether the statute constitutes or special general legisla- tion.

The constitutional provision certain subjects identifying eligible for treatment only by of way general legislation became of part the' Constitution of 1844 by amendment 1875. It adopted in was carried into the Constitution of 1947 without substantial change. Similar provisions to are in most, found all, but not of the constitutions of the Sutherland, other states. Statutory Construction (4th ed. 40.01. 1973) The behind law purpose special prohibitions has been stated thus: judicial processes developed along and [have] dif- legislative process safeguards ferent lines . . . lacks the of due process impartiality and the tradition of which restrain the courts using powers special dispense their to favors. Over course time, result, propensities legislatures of indulge as a to through special legislation developed major favoritism into a abuse governmental power. special grew, As the bulk of laws demands for reform in- became sistent, prohibitions and constitutional were enacted to limit practice special enacting legislation greater and to achieve uni-

versality uniformity operation respect in the law in statute persons. all to [Id.]

In to seeking decide whether any particular legisla tion is general special, the initial must be inquiry determine the of the purpose subject enactment matter with which it is concerned. Vail Mutual Ass’n. Alfred v. Borough New Shrewsbury, 58 N. J. 48-49 (1971); Kervick, see also Roe v. 42 N. 233 (1964). While may sometimes difficult, it is not so here. The pur pose of L. c. 57 was simply and solely to adjust judi- of the act.2 only objeсt cial This was the salaries. one of the the salaries of most members dealt with Although it with are here concerned its only appli- we judicary, state Court. of the Supreme cation to salaries of Associate Justices next determined, appropriate having This been similarly situated persons whether there are inquire terms act, who, embraced within those relevant act, are from its operation. persons, excluded are the the act are embraced within who this inquiry, five in Court, presently Associate Justices of the Supreme terms of the number, salary by annual each whose $3,000. Excluded the terms statute increased who Legislature the act member of the (Section 8) any a on Court. Eor position succeed to the vacant might hav such legislator-appointee, of time prescribed any period in Justice, would receive this not ing become Associate Associate Justices each crement. would be five There thus $3,000 than would the salary more in annual receiving sustained, be this can somehow sixth. classification Unless course, test, succeed. The the attack on the statute must reasonable, arbitrary, not is whether the classification rational justifying can be to rest basis upon said some Hancock, 133, 66 Budd v. N. J. L. 135 distinction. Passaic, v. Freeholders 42 Ct. (Sup. 1901); Woodruff 533, N. J. L. Skinner v. Collec 1880); Ct. (Sup. cf. tor, N. 407, J. L. Ct. 1880). (Sup. has persons There been excluded from the class of Court, who, a member act one as to whom the applies, point should be recalled that under our Constitution no 2 It may pertain object. The enactment to than con more one provision stitutional reads as follows: improper intermixing may from To avoid influences result things proper in one and the act such as no relation same have other, every object, law embrace but and that each shаll one expressed paragraph This shall the title. shall not invalidate revision, adopting enacting compilation, consolidation, law or statutory parts rearrangement [N. or all J. or of the law. Const., 7, 4; emphasis added] § ¶ Art. would differ in no five As significant the other respect sociate Justices. It would be fatuous to that dis suggest tinctions exist Justices among the Associate of the Court such as justify salary differential. All perform same tasks and share the no responsibilities. same Indeed has been argument offered to any such distinction. support clearly It does not exist. Hence we must conclude that the classification which from an results of the application Brennan, statute is See arbitrary. Batistich 45 N. J. 535-36 (1965); Epstein v. N. Long, J. Super. cf. 599-600 Div. (Law 1975).

A further comment. point merits It has been argued classification created by Section should be sus- tained as valid because Legislature seeking, was there then to its avoid membership, of the in- effect eligibility provision Constitution, Const., Art. 1, discussed at in Part length II of this opinion, ¶ and that this purpose would sustain a valid classification. this to been Assuming intent, have the legislative which may or been may case, have it in no can way be said create valid classification within the framework of this legislation.

It above was noted this statute is concerned only with salaries. judicial effect, Its therefore, and hence its validity is to invalidity, as its gauged only impact may after, before, be observed not legislator-appointee aas member of the qualifies Court and as such becomes entitled to receive a judicial salary.

Plaintiffs that argue the classification above suggested would in itself be invalid since it must have had its aim the improper avoidance of constitutional prohibition. We need not and do not express any this opinion upon point since, seen, as- we have it is irrelevant. lookWe only the effect produced by statute upon the salary structure members of the Supreme Court. restated,

Briefly method of analysis is this: we discern the first and purpose object of the enactment. to the factual situation apply pre- then undertake to it We whether, re- as so applied, sented. we decide Finally rest rational upon classification can be said to sulting object and of the relevant to the purpose or reasonable basis cannot, we case, it reach Since, obviously act. this quite legislation. conclusion constitutes special that statute in This will to emanate result be seen in the salary adjustment clusion of J. S. A. 2A:1A-8 nearly more intent will be Believing act. that than realized this exscinding provision declaring this familiar unconstitutional, statute we direct entire excision State DeSan partial employed. be technique tis, 472-74, N. J. and authorities there cited. N. J. A. 2A:1A-8 will provision, S. henceforth

foregoing deleted from statute. This results a de deemed be invalid, the judg cision that the nomination is and this affirmed. must, of the trial court upon ground, ment II our decision rests the determination Although upon I forth in of this con majority opinion, as set Part we un singular nature and advisable, sider it because to discuss the issue case, upon doubted this importance the trial court rested This opinion judgment. its A. is, were N. J. S. 2A:1A-8 deemed not to spe issue the nomination be Justice supported? cial could legislation, Carton the writer of this Judge join opin Clifford in the belief that could not. ion A jurist American once said that some- great “[i]t than to more the obvious important emphasize times here. elucidate the obscure.”3 We believe that to be true It unusual nature vitally necessary permit we case its to obscure essential simplicity. Interpretation Dickerson, 3 Attributed to Justice Holmes. See Application Statutes, (1975 ) 7. with which we are provision pertinent concerned, 1, above,

here Art. which is is quoted ¶ view in To us devoid any not our sense it is ambiguous. uncertainty. trace It limits the any eligibility member of the as candidate for civil Legislature “any State or the term for which position, profit,” “during office he shall been elected.” have

The limitation is of a dual nature. The legislator, during “nominated, shall neither be proscribed period, elected or “civil office or appointed” position” shall law,” “have been (1) by either created “the emolu- (2) ments whereof have been shall increased law” during he term for which shall have been elected. He remains eli- term, his gible, during legislative as candidate for any within office or does fall either position He his two forbidden with categories. regains eligibility to the two respect proscribed categories office upon .the term for which he expiration shall have been elected.

It a familar of construction is rule phraseology where there is no room unambiguous judicial precise or for resort extrinsic interpretation materials. lan- itself, in our speaks where found State guage Con- is the voice of the language stitution the people. As twenty j^ears Court said some ago, tion or addition.” United States The Constitution words and clear there is no tinguished Ct. arrived at is that of the framed ^[*] (1957)] [T]he Constitution it, ^[*] but from the from technical phrases L. Ed. room was written 5}* were used in their normal and derives its for construction people (1931) people. meaning”; # .“to force, who ratified [Gangemi v. Sprague, not from the Convention which & understood and no excuse for “where ‍​‌​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌​​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​​‌‍it; Berry, and the intent ^[*] U. ordinary 25 N. J. S. intention ^[*] voters; interpola- to be dis- its S. mind, us With these let examine thoughts the facts term four-year before us. for which During Senator Senate, to the Wiley salary was elected of Associate — or position the civil office Court of the Supreme Justice — increased was nominated to he has now been which member, by then a which he was of of the Legislature, act. the that had All to concede $3,000. appear the sum of Legis- then State there, all members the matter stopped — — au- would have been Wiley Senator including lature dur- judicial appointment from this tomatically disqualified terms. legislative the balance their ing 2A:1A-8, A. of N. S. a consideration This us to brings above, which statute, twice quoted of the salary the section We pending appointment. the permit presently said to a member say that should this provision take salary-increase ap the statute which passed Legislature applies, to which the increase positions the pointed term for increase the “during not receive the would he have been elected.” which he shall clearly statutory “term” used in this phrase

The word as upon as Thus legislator. appointment term office means the would not enjoy legislator-appointee office the term the balance of the during legislative increase salary case of had been elected. In Senator for which he oath of day would extend Wiley, period this an Associate Court Supreme office as Justice when the term for January until administered that, will After expire. was elected Senator he which Justice, term as Associate he seven-year his balance of increase.3A salary receive the would paragraph applies said in if 3A What we have this Section 8 written. statute is read as it is now We note that our take y colleagues dissenting would from this delete section what refer the clause, “during as “limitation” which reads the term for elected,” 309, 331-333). (pp. been which he shall have The result deny legislator-appointee of such deletion would be to to a for an period perhaps forever, $3,000 salary of time and in indefinite colleagues on the crement his Court would meanwhile en he respect joying. dissenting brethren, all With due to our we would accentuating, diminishing, rather than view result “special” quality legislation. of this this. We cannot read Art. to permit Nothing ¶ in the Article increase in emolument disqualifying limits to those bal- otherwise be might enjoyed during the ance of office. term of legislative legislator-appointee’s No statement to that the provision. effect forms any part

As the for which worded, Article “the term the phrase he in two shall have been is significant elected” [legislator] time respects span no other. It and limits the fixes within if it is to be be taken action must dur- time span and and inhibiting, similarly fixes limits the It ing which the shall ineligibility persist. resulting relevant in sense. Specifi- no other it is used in no other way; it is not or non- cally, to the time clearly receipt related of an increase in receipt emoluments.

In Article, an important considering meaning of constitutional should not be over- principle interpretation looked. Not all are of ma- equal constitutional provisions Justice jesty. “great Holmes once referred to the ordinances of the in- Constitution.”4 Within this would be category clause, cluded the due clause, the process equal protection the free other speech clause, all or most of the sections the Bill of well as as certain other The Rights, provisions. task most if all of these ordi- interpreting “great nances” is an and evolving on-going process. history of the Eederal Constitution clearly teaches what may, instance, be due one decade or in one process genera- tion will fail to meet this test in the next. And this is аs it should be. ordinances” are flexible “great pronounce- ments constantly evolving the felt needs of responsively the times.

But there are other articles the Constitution of a differ- ent and less exalted quality. Such provisions set generally —(cid:127) — forth rather those details of simply governmental ad- 4 Springer Philippine Islands, 189, 209, 277 U. S. 48 S. Ct. (1928). L. Ed. ministration as are aof in the worthy place deemed organic document. Examples our own Constitution be might the clause in Art. that requires bills and reso- joint §4 ¶6 lutions read three times each house before final or the passage; provision Art. §5, declaring ¶3 a member upon a member of Legislature becoming Congress, his seat in the shall thereupon become Legislature vacant; or the set forth in Art. that the requirement §1, ¶2 Governor shall be not less of age. than thirty years

Such these, as and others like provisions them, be, important they as doubtless are set may entirely apart from the above, ordinances” “great mentioned and matter of constitutional should receive interpretation entirely different treatment. Where in the one case the underlying intent spirit, of the Article must purpose be sought as it applied may have relevance to problems day, in the other literal adherence to the words the clause is the that the only way will of expressed can people assured fulfillment.

AYesubmit that the clause quite ineligibility definitely into clearly this latter It announces category. falls no prin- ciple rather it government; upon touches the mechanics and administration of in the much as government, examples set forth above. Provisions such be as this should read lit- erally. process Mo of “interpretation” necessary appro- in priate. Only way this can the will of plainly-expressed the be carried out. people clarity

The with which thе clause is ineligibility expressed be, in both Federal and State in may Constitutions at part least, for the responsible fact neither the Supreme Court States nor this has United Court ever hitherto been to it.5 construe upon called 633, 1, Levitt, S. Ct. 82 L. Ed. S. 58 493 5 In Ex Parte 302 U. appointment Hugo (1937) L. to be Jus Black an Associate of the Supreme challenged ground on dur the of was

tice the Court ing been a statute had of United States Senator his term office as 306 that the “ineligibility” agreement matter of general

It ais the derives directly our State Constitution in clause States, of the United Constitution the provision similar latter was the result the viz, 1, 6, 2, clause Art. § the that characterized of of the several compromises one to word as how A brief of 1787. work of the Convention may pertinent. this evolved compromise Randolph of Virginia,6 Edmund Certain led delegates, urged that Federal power, expansive fearful of too generally eligible appointment should no of Congress member he for which term the during or federal office to state Other thereafter. year for one elected and should have been least, increased, arguably of this emoluments enacted which the petitioner’s lack the action office. Court dismissed because opinion, standing. Although an alternate of ground not mentioned in the clearly in the Court was for dismissal rested fact that the seeking jurisdiction to to the Petitioner was without invoke hear matter. original jurisdiction Supreme' since Ever Court. Marbury (1803), Madison, has L. Ed. it been v. 1 Cranch jurisdiction only original Supreme settled that has such Court Art. This as was to it under Constitution. § allocated reads, pertinent part, clause affecting public Ambassadors, In- other Ministers and all Cases Supreme Consuls, Party, and those which a shall be. a State original Court shall have Jurisdiction. Marburg Congress purporting enlarge held that an act of jurisdiction Supreme original beyond scope Court of Art. Beveridge, The See unconstitutional. John Life (1919) upon Marshall 101-156. Courts unusual silence point gone following has not unnoticed. Witness the di comment Ex rected Parte Levitt: Court, rejecting petitioner’s applica It seems curious that tion, point being original did not out ’that was asked to assume jurisdiction contrary Marbury Madison, to the decision in 1 Cr. (1803) [The S. Constitution Ct. the United States: Interpretation Analysis (Corwin 1953) ed. merits, 101] petitioner A decision which failed reach to- in which standing jurisdiction, obviously lacked and the lacked Court has no precedential Supreme value as the attitude of Court with respect ineligibility clause. 6 Randolph delegates was one five who in the end declined to ' sign the Constitution. delegates, Hamilton, Alexander including were opposed to any disqualification They feared whatsoever. imposing any kind of would result in able ineligibility men being unavailable for office. James Madison .public proposed compromise that was arrangement substantially adopted. There be no disqualification, he should suggested, except two respects: term he should have been during elected no member Congress might appointed “any civil under office Authority of States” United (1) “which shall created,” have been or (2). Emoluments “the- whereof shall have been .enereased” such term. during on debate this issue in the held Trenton Convention which produced our State Constitution of 1844 followed the same lines resulted in a substantially identical provision. The Constitutional Convention of 1947 the Article adopted from the Constitution 1844 with only few changes not here wording significant.

There three appear only out-of-state cases which the issue of has eligibility been under circumstances raised similar to In substantially those before us. each case а stat for a salary ute increase providing stipulated that it should not apply legislator-appointee during balance of his . is, course, term That the same situation we have here. In each found case court appointment be in violation of the state constitution. Anderson v. Chap man, 86 Wash. 2d 543 P. State rel. 2d ex (1975); v. Fla. Gay, Fraser So. 2d 901 State (1947); Wiseheart, rel. Fla. 267, ex Hawthorne 28 So. 2d (1946). members of the Court mentioned above there- would trial hold, judge,

fore as did the nomination con- Const., Art. N. J. §5, travenes ¶1. I am in complete agreement (concurring).

Sullivan, Part I of with which holds majority opinion in the statute salaries which provision increasing judicial legislator, to exclude a during the term for which purports elected, he was from he be salary ap- the increase should term, office class of pointed judicial to such is during Const., IV, Art. special interdicted legislation by §7, J. par. falls, the nomination 9(5). Wiley Once provision Const., inter IV, which, runs afoul of N. par. Art. §5, alia, for which he term prohibits the any legislator during emolu- the elected, nominated to a judgeship from being term. ments of which increased such during have been I on this ground, nomination is invalid Since Wiley consider, statutory it to were the provision find unnecessary whether not be legislation, held unconstitutional special IV, Art. the nomination would still violation of § 1. par. climate, its economic with

It well that in today’s may ero- in the constant inflationary trends persistent resulting IV, dollar, Art. salary sion of of the the purchasing power insofar as con- be reconsidered least par. should reflect economic condi- salary merely cerns increases that a merit the position tions. There is considerable term cost of increase enacted during legislator’s living dur- nomination or appointment bar him from ought How- such increase. by such term to an office aJSеcted ing of the substantial ever, require a modification this would province a matter beyond constitutional provision, this Court. invalidates J., today C. The Court dissenting.

Hughes, Senate, Governor, confirmed appointment Jersey. Court of New Supreme Justice of of an Associate action of the executive and overthrows It thus I consider that course un- wholly of government. branches and intrusive unwarranted constitutionally necessary from of the Court. judgment dissent I respectfully ade- are well and background procedural The facts and To it in the opinion majority. might stated quately the senatorial reference agreement be added only se, is per unexceptionable the appointment, plaintiffs its quality, of the mind and standpoint ability of integrity character of the the caveat appointee.1 Only its constitutionality advanced derogation appoint- ment. Hence the presumptive regularity challenged appointment that factual of its magnified by concession intrinsic in residue propriety, question only leaving its constitutionality. This important point, implicating of separation powers which is inherent in of system our gov- ernment,2 invokes the most careful and circumspect scrutiny. to the I

Proceeding examination of that first question, note the constitutional and which statutory provisions upon the trial court rested its decision invalidating appoint- of ment Senator B. of Stephen Wiley to be member Court. The 1974 statute of salaries all mem- increasing of bers the state to judiciary inflationary meet pressures included the provision: following salary provided ap Tlie increases for in this act shall plicable any present Assembly to member of the Senate or General elected, during term which shall have been should such he for appointed any

member herеafter be to of the offices enumerated (emphasis added)]. of this [N. section 1 act. J. S. A. 2A:1A-8 this latter By provision in- Legislature obviously with the by tended to Constitution comply avoiding any colleagues for 1 Counsel Senator Vreeland and his state in their brief, page 3: plaintiffs question Wiley’s integrity, These do not Senator in- telligence, legal ability any necessary qualification or other position Supreme of Associate of Justice The Court. sole complaint Wiley basis their is that the nomination Senator IV, Paragraph V, contravenes Article Section of the New Jer- sey Constitution. III, par. Jersey pro 2 Article 1 of the New Constitution vides : powers government among of the shall divided three branches, legislative, judicial. per- distinct executive and No persons belonging constituting or son or one branch ex- shall any powers properly belonging others, ercise of the to either of the except expressly provided in this Constitution. members for judicial its then office which of.

disqualification V, IV, par. Article by otherwise be required would per which Jersey provides the New Constitution part: tinent during Assembly, term the Senate No member of or General nominated, elected, elected

for’ shall be he shall have been which profit, position, appointed or or State civil office law, whereof shall the emoluments shall have been created law, during term. have been increased such to the above Eor I shall refer brevity, convenience and clause; to the “ineligibility” constitutional provision as the clause; the “exclusion” statute section mentioned as — the term statutory “during the underlined words shorten this (I have been elected” shall which he shall — clause. “limitation” term”) his as the “during meaning pur- here involve presented questions Constitution clause pose “ineligibility” clause amounts the “еxclusion” whether enactment of me.aning to an unconstitutional to circumvent that attempt legitimate legislative and or whether it purpose, represents faithful constitutional mandate. action to the our state Con The of our is government cornerstone state be ex All action whether it stitution. state governmental ecutive, must conform to this judicial organic is Even action governmental generally law. clothed though with a which is the judiciary, presumption legalitj7, means, strike final of what the Constitution must arbiter which offends a constitutional down action governmental provision. of a constitu- meaning particular

To ascertain true look beyond it often becomes provision necessary tional used. of constitutional polestar words particular of the is the intent and purpose particular construction ' “is to effect judiciary The function of the provision. give in adopting” particular intent the people 10 To Berry, 25 N. J. Gangemi (1957). provision.

311 that end history resort constitutional' pertinent often serves as a valuable “aid true and ascertaining the sénse Vermeulen, Lloyd v. used.” 22 meaning language . N. J. 200, 206 (1956) It has been said that if a constitutional or statutory pro s vision is plain and' face, on its there i no unambiguous room for construction and must be plain language given . full effect without Gan beyond the instrument. looking gemi v. Berry, supra. But rule general has its limitat Even' ions.3 its face though may on language appear and fact, examination, clear if in upon unambiguous, true intent of the Framers and the purpose people appear, then the should be read and language applied intent, with such accordance The United purpose. Court in United American Truck States v. States Supreme Ass’ns, ing 310 U. S. 60 S. Ct. 534, 543-44, 1059, 1064, L. Ed. held (1940), that: meaning words, ‍​‌​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌​​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​​‌‍When aid to construction of in the as used statute, availablе, certainly can be law” there no “rule of 3As stated Justice Frankfurter: Anything may problem meaning, present written judges construing legisla- that is the essence of business very problem They tion. derives from the nature of words. symbols meaning. symbols, are But unlike mathematical phrasing especially complicated document, enactment, of a seldom approximate precision. attains more than [“Some Reflections on Reading Statutes,” (1947)]. 47 Colum. L. Rev. generally Sutherland, Statutory Construction, “Legal See Com mentary Interpretation” Statutory (C. for Part V. Sands 4th ; 1974) Jones, Meaning ed. “The Plain Rule and Extrinsic Aids Interpretation Statutes,” ; Q. (1939) of Federal 25 Wash. L.U. Murphy, ‘Plain-Meaning “Old Maxims Never Die: The Rule’ and Statutory Interpretation Courts,” in the ‘Modern’ Federal 75 Colum. (1975) ; Nutting, Legislative L. Rev. 1299 “The Relevance of Inten by Evidence,” tion Established Extrinsic 20 B. U. L. Rev. 601 — (1940) ; Note, Statutory Interpretation “Extrinsic Aids to Jersey Rutgers View,” (1954). Although New 8 L. Rev. 486 these “plain meaning generally discussions statutory rule” have referred they construction, appropriate in are also the context interpretation. constitutional 312 appear however clear the words on may “superficial forbids its use, omitted). (footnotes

examination.” and rejects it the court sometimes “literal So is that Constitution for rea of the state reading grammatical” Vermeulen, v. Lloyd supra, noted Jacobs in son Justice 22 N. J. at 206: be had to [S]ince freely words inexact at resort best, may are tools in ascer- for aid pertinent history taining language meaning used. the true sense 40, (1956).

See also Richman v. 22 N. J. 44-52 Ligham, construction, following statutory Although referring of Justice Heher also assum- danger statement notes the natural alone best demon- conveyance of words ing their strates intended meaning: of it but the internal sense law, It is not “the words Eng. 2 Plowd. 695 Studd, 459, Rep. v. 75 Eyston makes law.” * * * emerges (1574). spirit policy The intention terms. particular [Caputo the literal sense the statute rather than (1955)]. 264 Inc., 259, v. 17 N. Foods, The Best Purthermore, “ineligibility” whether may question one un that construction is unambiguous clause so clear and have constitutional pro Almost half of the states necessary. have clause, and these provisions visions similar di with court decisions litigation, surfeit of generated provisions. of the particular as to the true meaning vided look helpful other courts have found And it is that so ineligibility history surrounding the abundant clauses See, Kauffman, Ky. Meredith v. g., ours. e. similar to and Comm’rs Mayor 395, 37, W. 2d 38-39 (1943); 169 S. Green, v. 403, Spears A. (1923); v. Md. Davis, 1966); Shields (Tex. W. 2d 398 S. Toronto, (1964). 395 P. 2d 16 Utah 2d “in- from the of problems arising

Judicial consideration as suggested not been so sparse clause has eligibility” 313 An many of courts majority. inability example interpretation such clauses to their upon construing agree in the exhaustive may be noted resulting application, ex v. State in Warwick cases the court compiled by list of Chance, rel. 384, 548 P. 2d 389 n. 17 (Alaska 1976).4 4 Compare pro eligibility despite upholding such office cases Justices, Opinion ; 38, (1964) Ala. 181 So. 2d 105 vision, 279 ; Myers, P. Carter v. Com (1961) 167, Ariz. State v. 2d 757 359 89 Appointments, 14 Cal. 2d 179, Qualifications Judicial on mission Mathews, (Fla. 156 So. 2d 515 ; Adams v. (1939) P. 2d 140 93 Governor, Opinion Advisory (Fla. So. 2d In re 1 ; 132 1963) Gray, (Fla. 1954) ; State ex rel. West v. So. 114 1961) ; State 74 2d Wiseheart, ; (1946) Fla. 267, v. So. rel. Hawthorne 28 2d 589 ex 158 Futch, ; 837, So. (1936) 122 Fla. ex rel. Landis v. State 165 907 Auth., Bldg. 575, 68 S. E. 2d Ga. School v. State 590 208 Sheffield Enomoto, Bulgo ; P. State 61, (1967) v. ; 50 Haw. 430 2d 327 (1952) Carter, Gooding, ; Redmond v. (1912) P. 791 128, Idaho v. 124 22 Kauffman, supra; v. ; Meredith (Iowa 1976) W. 2d 268 247 N. Harrington, 157, A. (1915) ; Md. v. Tax Comm’n State 126 94 537 Green, Schmahl, supra; Mayor rel. Benson v. State ex v. Comm’rs Scott, rel. ; ex Olson (1914) N. W. State v. 104, Minn. 794 145 125 Lyons Guy, v. State ex rel. (1908) ; 513, 117 N. W. 1044 Minn. 105 Lefor, 155, D. v. 1961); Baird (N. W. 2d 211 52 N. 201 D. N. 107 Ferguson, rel. Herbert v. 142 Ohio St. ; State ex (1924) N. 997 W. Dudley, Gragg 281, v. 143 Okl. ; (1944) N. E. 2d 980 496, 289 52 Grigsby Osteroot, 319, D. v. 75 S. ex (1930) ; State rel. P. 254 64 Spears Daniels, supra; Davis, Kothmann v. v. ; (1954) N. W. 2d 62 Toronto, supra; ; Shields v. App. 1965) (Tex. W. 2d 940 Civ. 397 S. Dubuque, P. 553, v. ex rel. O’Connell Wash. 2d 2d State 68 413 Hall, v. Wash. 2d ex rel. Pennick overruling State (1966), 26 972 Yelle, rel. Hamblen v. Wash. ; State ex (1946) P. 2d 172, 29 173 153 Reeves, ; ex rel. Todd (1947) State 68, 185 P. v. 196 2d 2d 723 Nye, rel. Johnson v. (1938) ; State ex 145, 82 P. 2d 173 Wash. 148 Ryan Boyd, (1912) State ex rel. v. 21 ; W. 659, Wis. 135 N. 126 Thomson, 1974), (Wyo. Brimmer v. (1866) ; Wis. 208 P. 2d 521 574 prohibited person holding with cases bar the constitutional Opinion Justices, 386, 244 Ala. So. 2d office, taking 13 Montgomery Enslen, 372, ex rel. 107 Ala. State (1943) ; v. 18 674 Heintzleman, Supp. (D. F. (1895) ; So. Kederick v. 132 582 157 Opinion Advisory Governor, re to the So. 2d 1955) ; In 225 Alaska Advisory Opinion Governor, 156 Fla. (Fla. ; 1969) 22 512 Dummit, Taylor v. ex rel. Bender, (1945) ; Commonwealth So. 2d 305 458 Ky. ; 73 Md. (1947) S. W. Kimble 992 202 2d ; Opinion Justices, A. (1938) Mass. 202 Justices, Opinion Mass. (1964) ; E. 2d In re including

Such-“ineligibility” provisions, our.Own 1844,' first in our Constitution were modeled appeared Constitution, I,' 6, after Art. 2 States clause of.the United § which provides: Representative shall, during No Senator or Time which for elected, appointed any Authority he was civil Office under States, created, of the United which shall have been or Emolu- the’ during time; ments whereof shall have been encreased such no holding any

Person States, Office under United shall a Mem- ¿is during ber of either House Continuance in Office. This clause of subject much debate at the Federal Convention of 1787. clause originally As proposed, would have made Senators '.and Representatives ineligible appointment office, national, or state their during term of office and for a period See I of time thereafter. Farrand, M. 1787, The Records the Federal Convention of of at 20-21 (1911). The primary reason the exclusion was to eliminate, to the extent possible, any bias considera tion of self-interest in the II J. legislator. Story, vote of Commentaries on the the United States Constitution 864, at 330-31 (1833). However, there were who be those lieved that such an exclusion would some disqualify country’s figures ablest from any other office public simply they because were participant and at the least legislators, Fyfe Mosher, ; 349, 21 N. v. N. (1939) E. 2d 149 Mich. 112 W. 551 Holm, 166, (1907) ; (1944) ; Miller v. Minn. 14 W. 2d N. 725 217 99 Erickson, 246, State ex rel. Anderson v. Minn. W. 230 180 637 N. Sutton, ; 147, (1930) ex v. Minn. State rel. Childs W. 262 65 N. 63 Shelby Alcorn, (1895) ; 273, Miss. (1858) ; v. 72 Am. Dec. 169 36 Short, 272, ; Baskin v. State ex rel. (1925) 107 Okl. P. 232 388 ; State, Baum, 78, (1898) Palmer v. D. 75 W. 818 Hall v. 11 S. (Tеx. 1970), appeal dismissed, 93, S. W. 397 U. 452 2d S. 699 90 Romney Barlow, 818, (1970) ; S. Ct. L. Ed. v. 24 Utah 2d 25 2d 79 Jugler Grover, 226, (1970) ; P. 2d 497 State ex rel. v. Utah 469 102 Chapman, 807, (1942) ; 125 P. ex rel. 2d State Anderson 86 (1975) Oceanographic P. 2d ; Wash. 2d Comm’n v. 229 O'Brien, (1968); 447 P. 2d 707 ex rel. Wash. 2d State Clausen, French v. (1919). 107 Wash. P. seeking talented from- legis- persons discourage'many might ' ’ n . office. lative abuse Sherman, prevent Roger seeking'to Delegate ad England, existed had power appointive seeking from legislators a total vocated disqualification and, Fair the federal II at 490. supra, Among other offices. Gor was Nathaniel favor of' eligibility delegates arguing clause’s Massachusetts, ap sought who strike ham of Pollitt, federal See office.. holding plication legislators Tneligibility and the Saxbe “Senator/Attorney-General Sep An Upon Constitution: Encroachment Clause’ He Rev. Powers,” (1974). 53 N. C. L. aration ar Wilson who Pennsylvania,- James was supported me to reasons “‘[s]trong disqualify must induce gued ” Id. level the same (On state man office.’ good Wurts, who, Alexander expressed by concerns were delegate others, re changes the constitutional that among argued al from the Legislature unchecked appointive power moving of necessity the of an bar to appointment leviated absolute New Constitu Proceedings Jersey the State legislators. of 1942) tional Convention at 306 ed. (Bebout [here of ex was Particular concern Proceedings]. after cited as 1844 of of judicial as to the availability legislators pressed appointment.5) fice as the Con- finally clause United States adopted

stitution Madi- by James represents compromise proposed son the to federal offices only that “disqualification apply those the legislator’s created the term or of which during had I Far- been increased such term.” during emoluments ap- Legislature you from the all the members of 5“[I]f restrict great injury. Suppose may pointments, the office suffer the state vacant, very on whom all and the man of should become Chancellor competent proper eyes to fill should fixed as one most were the fill look to either House The Governor cannot to in the Senate. pro- office, suffer. The same effect would be and the must the state vacancy or of if a occur in the office Chief' Justice duced should Proceedings Supreme 306]. of at [1844 Court.” Associate Justice the rand, supra, This mem- permitted at middle ground during bers the Senate and House of Representatives, elected, for which to to they time were be appointed offices so had long other as such offices not been created or their benefits enhanced appointee’s during Even term. offices which been created had or increased, emoluments of which had been the disqualifica- tion ended upon expiration term. legislator’s

Controversy “ineligibility” clause which surrounding in our 1844 first was not appeared Constitution unlike that Eederal .debates. to bar One member proposal any elected, the term Legislature, he during was from .appointment any other office was advocated as means eliminating any possible self-interest or collusion. on .'rejected This its ground that was much sweep broad too and that the most competent experienced per- sons would thus be precluded from appointment, to the State.6 detriment of the 1844 Convention ultimately adopted sim- proposal

ilar to the Madison compromise suggested in 1787 Convention, Eederal which in barred a effect member disqualification 6 A final total resulted in debate over a vote of 32 reject provision totally disqualifying legislators 16 to other offices. Records the debate indicate that the framers of the carefully arguments considered Constitution need prevent corruption outweighed qualified collusion need to make legislators positions: for other available Ewing thought go enough, Mr. the section far did but appoint- both Houses members of should be excluded from during same, by ments term and he their moved to amend the striking out all after the word “state” end to the of the section. Ryerson suggested competent Mr. Child Mr. the most might might and the men for best offices which become vacant preclude House, in either and this amendment would the Governor them, selecting they were, perhaps, very from when the best men station, any any vacancy for the had and who idea that would exist, they when were elected. Ewing again amendment, urged Mr. advocated the cor- ruption might subject, or ought collusion which arise on to prevented. Proceedings, supra, 518]. at his term of office appointment during the Legislature its been created or if such office had only another office to term. appointee’s legislative enhanced the during benefits IY, Art. As Proceedings, supra, approved, at 518. provided: 1 of Constitution Y, par. § Assembly shall, during the time member of tbe or General No Senate appointed by governor elected, be nominated or for which he was joint-meeting, by legislature to civil office under authority state, or the emolu- which shall have been created of this during increased, been such time. ments whereof shall have clause have been “ineligibility” broaden the Proposals New Jersey See Constitution the State intermittent. to be Amended the Constitutional Commission Proposed 1873, 9; Joint Constituted at Committee Under Legislative 19, No. Con. Res. Constitution Proposed (1942) Señale amended, 1844, 12; as Revised Constitution Proposed at 1944, Ill, However, Art. 3. the clause remained par. § Constitution, although until adoption unchanged even then. debates controversy persisted During the the committee on legislation, arguments calling before were See III Constitutional rejected. a broader provision 702-05, 851; at II id. 1064. Convention clause is substan- present “ineligibility” As adopted, the 1844 provision. identical tially case, courts, While New have Jersey prior instant IY, Y, Art. not been called upon interpret par. a situation somewhat to the case arose analogous instant in 1892 when Governor Abbett appointed George this State T. Werts Associate Justice Court. Supreme at the time was State Senator his term during Werts salaries of Court Justices increasing Supreme an act 1891, c. In 274). order to remove passed. (L. had been bar to Werts’ a bill re- appointment the constitutional increase How- both houses. salary passed pealing out, Law New Journal the re- ever, Jersey pointed as the had no to Werts and effect on only salaries applied pealer VII, of Art. the then office virtue justices any which provided 1 of Constitution II, (1844) 'par.- Court Supreme Justices of the compensation that: the term of their during appoint- be diminished “shall not J. 95-96 The appointment XV J. L. (1892). ments.” courts. challenged was not particular pro- of the history The foregoing, were not it clear that and intent purpose vision''’makes its Disqualifica- nomination to office. legislator’s a prohibit during created only. exists where the office was tion thereof in- or the term office emoluments legislator’s law disqualifica- such term. Even then the creased during exists only is not dur- appointment tion from absolute term of office. legislator’s ing to nomination right ap to'such term his Subsequent was is even office cre unquestioned, though the pointment increased nominee’s ated or its emoluments' during legis which the constitutional provision lativе term. The evil to e., self-interest, i. legislative possibility is directed that a be influenced in legislator newly- might voting an office or for compensatory existing created increase if he were to be office dur eligible appointed office motivations, With respect his- term. to such ing legislative ensues after appointment legisla where the end term, the on its face. tive Constitution indifferent thereto In other words the constitutional is that objective legis may vote, lator from his because profit directly of nom ination his term. N. J. A. 2A:1A-8 occurring S. during to- intended exactly accomplish “ineligibility” what (See Senate Committee Statement requires. Judicary clause L. 1974, Committee amendments to c. accompanying self-enrichment, place during Its was to 57.) purpose term, -of the mem beyond span power Legislature. of' the ber salaries was .judicial

In casé the act Wiley’s Increasing State Senator and would ordinar- his term as during passed the judi- emoluments of increase ily regarded-as'an Yet, act, involved.7 the of the very provisions cial offices office, judicial been to Wiley, having appointed may the salary increase in judicial during receive of the any part As him emoluments term. to balance his legislative increased, at least for the period have not been such offices I not consider elected. do of the term which-he was pur- the constitutional to circumvent to be an unlawful act be legitimate to a I that it was intended Rather find pose. the “ineligibility” consistent with fully legislative provision of the Constitution. clause to amounted that such provision trial court believed

.The “ineligibility” the constitutional an circumvent attempt of Senator appointment in aid of the and, considered clause during bench to the other appointed Wiley any legislator (or cause, un- for that itself, elected) the term for which believe, I on the contrary, ineffective. as judicial respect the highest the statute is entitled to that with the Consitu- to comply legislative attempt bona fide another matter. in so is of the statute doing tion. The effect “exclusion” that absent the without saying I think it goes enacted that 2A:1A, S. A. since legislation clause of state salaries within the in all judicial increase a general un clearly would Wiley system, appointment court words and within constitutional, directly as coming be noted It should clause. the “ineligibility” intendment of clause applies that the “ineligibility” parenthetically not,he whether voted for the statute legislator current Prom a judicial emoluments office. consti- increasing judicial suggested across-the-board It has an increase been period continuing nothing in a inflation more salaries made adjustment only cost-of-living to avoid the erosion seeks than judicial salary power purchasing and is not an increase of the Toronto, In Shields v. Utah 2d P. emoluments. 2d Supreme (1964), Court of Utah held that a modest across- salary officers the-board increase for state should treated adjustment cost-of-living and not increase emoluments within provision. meaning of its constitutional

tutional it is standpoint immaterial whether the legislator increase; voted his in the membership actor very Legislature is the factor. disqualifying I is in order. clause analysis

.Here the “ineligibility” which he shall believe the term for “during expression have be rele- been can elected” clause “ineligibility” of a vant par- two events: only specific (1) passage office, and (2) ticular statute emoluments of increasing office; such appointment of a participant legislator dis- else, period concerns a limited nothing including emol- qualification of such tо receive the increased appointee for the uments; that, so as well said Justice Mountain majority, “ineligibility” significant clause part — it way; two “it is relevant in no other only respects, in no is other sense.” used if that participant legislator made is argument of his the expiration after immediately let

appointed, say, us he knowledge that term had legislative previous (he having increased emolu- validly enjoy would be so appointed) might term, of that with perhaps very twilight ments voted in the to the There a surface plausibility his strenuous support. would in such case motivation that his self-interest theory where instant case from the distinguished be so evident (as pay raise routine, type judicial “good government” involved, the most coincidental causing legislation to stricture the of a legislator-appointee subjection innocent “limitation” clause that the clause) of the “ineligibility” legislative his of the increase “during the latter depriving norm. to meet constitutional term” might enough no two has of these cases comparison But the of the base, case post-term when one considers noted, indifferent Constitution wholly appointment, on the Constitution Story, Commentaries J. (II Tucker, I The Con- (1833); at 331 United States was in- ) and States 442-43 (1899) stitution the United have proposed the Eramers would to Otherwise so he. tended but unsuc- strenuously the proviso, adopted people and the for at eessfully convention, that the argued debarment from appointment should or at least permanent, a period of one after year expiration legislative term.

So, inevitably, emerges question of the legal and con- stitutional effect of the clause disqualifying legislator- from appointee the increase his “during legislative term.” If this “limitation” viable, clause is the statute would seem to me increase, аlbeit to be at a enjoyed time, later emoluments of office. Thus the will at some future appointee time the fruits of enjoy in whose legislation adoption he was in the sense. He would be participant above destined in- occupy office “the emoluments whereof [were] creased law” period sensitive during constitutionally of his be dis- term, for such reason he would qualified that office. the constitutional defect

Assiiming exists clearly under the statute as stands, the focal question is presented. Need the “limitation” of the “exclusion” segment clause be viable, in the of the immovably light primary purpose “exclusion” clause of the statute? While it does indeed rep- resent the will of the Legislature, larger legislative pur- was to pose qualify legislators appointment judicial office, increase. As salary has notwithstanding general can said, been that was a There be no doubt legitimate goal. intent was bona fide its such legislative purpose the with the Constitution comply by avoiding the set forth in clause. In disqualification “ineligibility” such case, must the vulnerable “limitation” provision necessarily main of section 8 of the doom the thrust and statute ? purpose The of American synthesis judicial thought would, times in our I history earliest with all suggest respect, contrary. indicate to the nature of a partible constitu act in tionally challenged legislative recognized Bank v. Lessee 27 U. S. Dudley, Hamilton (2 492, 526, Pet.) in 496, L. Ed. 508 which Chief 7 Justice (1829), Marshall stated:

322 provisions unconstitutional, of that part act be If part may of the given such as to disregarded, will be full effect be while ** repugnant *. Constitution are not In Court held: 1881, the Supreme part may be that the unconstitutional statute [I]t seems us [unobjectionable provision] left full force. stricken out and the necessarily by words, erasing may striking not but it out is provision, reading by disregarding and the stаtute the unconstitutional Schutte, provision R. [Florida as if was not there. R. Cent. v. (1881)]. L. Ed. 103 U. S. government Judicial for the other branches of has respect also the rule in New The former Court of Jersey. been &c., Church in St. John the Baptist, and Errors held Appeals Eq. Gengor, (1937): object constitutional, principal of the statute is Where objectionable impairment can be excised substantial feature without operative except general purpose, in so the statute is far as may fundamental contravene law. act of the judicial confronting This diffidence Legis it, and the reasons were lature, emphasized long ago by Ex Ran parte Marshall, Chief Justice at circuit sitting F. Cas. dolph, C. D. Va. 11,558) 1833): (No. (C. judicial brought questions greater legisla- No can tribunal of before delicacy constitutionality than those which involve the aof they indispensably necessary case, If become tive act. court must on them; may if and decide but meet case be determined points, just respect legislature requires, other that the obligation unnecessarily wantonly laws should its not be assailed. That restraint rule judicial as well New Jersey. v. Cunningham, Donadío 58 N. J. 309, 325-26 (1971). So it is that courts have confined themselves to measuring executive and action their sworn (as duty up- requires them to do) only hold Constitution on a consti- basis, tutional never politic themselves concerning

323 wisdom, with the or even the sense or justification, honesty of purpose of the act of other branch of government. That the other business of branch.8 It is the Constitu- tion that is the business the courts. ' The courts consider constitutionally germane questions such as these: Has the exceeded its constitutional Legislature Rothman, power (Rothman v. N. J. 65 219 New (1974); McCrane, & Jersey Sports Auth. v. 61 N. J. Exposition 1, dismissed, appeal 943, 270, U. S. Ct. 34 409 93 S. L. Ed. 2d Sills, 215 Burton v. 53 J. 86 (1972); N. appeal (1968), dismissed, 812, 394 U. 89 S. Ct. 22 L. 1486, S. Ed. 2d 748 ? (1969) ) Does the offend a statute constitutionаl provision Bank, v. South Nat’l right Jersey 66 N. J. (King 161 v. (1974); Rosenfeld, State 62 N. J. 594 West (1973); Sills, Morris Regional Bd. N. 464, den., Ed. v. 58 J. cert. 404 U. 986, 450, S. Ct. 92 S. 30 L. 370 2d )? Ed. ‍​‌​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌​​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​​‌‍(1971) Did executive action contravene a thus statute, invading the constitutional prerogative Legislature (Pascucci v. Vagott, 71 N. J. 40 ?) Does the (1976) statute measure Cahill, up to a plain imperative constitutional v. (Robinson DeSantis, 69 N. J. 449 State v. N. J. 462, 65 (1976); 473 Madewell, State v. N. (1974); J. ), and (1973) the like. The courts thus are to act within own careful their to the sphere, showing respect prerogatives the other branches government avoiding encroach upon ment any way. them

When it to assess a necessary does become statute from the standpoint constitutionality, recalled, of its our Court Kervick, v. 42 N. J. Roe “the (1964), long-estab- lished deference the will principle judicial of the law- men whenever reasonable differ as to might makers whether need public devised meet conform to the the means the equally-settled doctrine that Constitution [and] Clifford, (1975); Jersey 8 Avant v. 517 n. 19 New Sports Exposition McCrane, 1, 8, appeal & Auth. N. J. dis missed, (1972). S. S. Ct. 34 L. Ed. 409 U. 2d 215 324 valid, reasonably

means are and that conflict- presumptively doubts should be in favor of ing validity.” resolved obligations interpretation many including Courts have law, of statutes, and statutory of common application of of as trial justifying doing weighing proofs equity, or administrative actions scrutiny of executive judgment, tran- or the like. None claimed to be and arbitrary illegal, in and spring from) scends all are involved (although of enforce Con- specific uphold courts and obligation stitution. end, in the it

And is ineluctable although obligation Marshall suggested, must be Chief Justice approached, circumspection. utmost but with wantonly lightly of judicial purpose it thrust So has been the constant of in the adoption action to respect legislative responsibility or, seen, as will laws, poten- where are conformable they same is respect The to the Constitution. conformable tially here involved action, decision purposeful whose due executive of the Senate further action legislative was amplified Court’s decision here the appointment. confirming that of eventuality, very grave accomplishes governmental of two other branches govern- of the action nullification ment. as a constitutional exists, respon- such judicial power

That Madison, S. v. 5 U. (1 Marbury sibility, unquestioned. 60 such assumption 2 L. Ed. (1803). Cranch) v. Moyant clear. Jersey courts by New responsibility v. Newark Paramus, Schmidt Bd. N. 528 J. (1959); Whether the should power 9 N. J. 405 (1952). Adjustment, is no If there alternative matter. is another be exercised be. But Constitution, of course must with the consonant no there be exists, so that alternative an if such “wantonly of the Legislature the act compulsion Court, out then the Randolph, supra), parte (Ex assailed” of separation governmental principle respect That separation alternative course. take that should powers, enshrined, our is basic to form constitutionally of power, government, courts, to be observed ought scrupulously the final guardians Constitution.

Is there such alternative here? Courts have sought found such innumerable instances. have They “strained” to act. Justice uphold (then Judge) Pashman in New & Auth. Jersey Sports Exposition stated McCrane, N. J. Div. Super. (Law 1971), dismissed, U. S. aff’d, 61 93 S. Ct. appeal L. Ed. 2d 215 court (1972), duty “[t]he is to strain if it.” act, to save the not to necessary nullify The in courts have such as performed “judicial surgery” Zito, v. N. J. 206, State 54 218 in which Chief Jus (1969), in tice Weintraub said another for unanimous context a Court: important protection is statute instrument for of the in- dividual, likely Legislature and since the would want the statute to may, impediment remain to the extent no it we see to such judicial surgery bring will as the within statute the Constitution.

This manner statute, of in construction of a order given to conserve, within constitutional the permissible range, the clearly legislative will, discerned is therefore of one consti tutionally and judicially respect for the encouraged Legisla ture aas co-equal branch It of is sometimes government. called a to “judicially statute meet constitu salvaging]” DeSantis, tional requirements as in v. State 65 N. J. supra, at At 472. other times it called “judicial is as in pruning” Borough Collingswood Ringgold, N. J. 364 of dismissed, (1975), appeal U. S. S. Ct. L. Ed. 2d 826 in which this (1976), Court such “performed judicial as render the ordinance pruning constitutional,” [to] “excision,” or to whatever in referring infirmity such ordi nance as “might exposed judicial scrutiny, de fects we undertake to excise.” The effort to the preserve is legislative clear from the purpose our of Court language — in Ringgold, invalidate the ordinance as “[w]e [cer provisions but find remaining requirements tain] nor

are .neither undue and that discriminatory, con- [so * * * .” Id. ordinance survives 362. strued], under like com- and judicial purpose It for a similar is in the instant free ease feels majority pulsion clause. of the “exclusion” whole from the statute the excise applies weighing general principle The same interdiction. As of flexibility rigidity Highivay New Jersey Behnke v. Heher in Justice stated Auth., 25-26 : (1953) particular against of a exercise interdiction A constitutional power exception; of rule the settled of an and the nature jurisdiction legislative policy will judicial enactment that a repugnancy is so to the Constitution unless its not be declared void doubt. The limitation room for reasonable leave no manifest upon clear function must be the exercise of power upon imperative. restraint This constitutes basic nullify courts, state, con- a statute want federal * * *(cid:127) congruity. stitutional very inflexible in their nature limitations are While constitutional varying public oрinion, meaning and eco social and immune to- arising complexities modern call nomic needs life principle; applications Constitution would and the new purpose it insensitive to the demands essential were serve its * * * economy. principle changing society itself is unalter expressed except by people in the constitutional able the will mode, needs a violation but to new without accommodation principle the instru not contravene the intent of essence the does spirit limitation, in and ment. We are concerned with the provisions inquiry held in must be view. The true rule that of alone, related provision “is one of the Constitution construction consider all, contemplate therefore to limit but to and one conceded by naturally qualifications from the attribute those which result whole, by powers granted instrument, may so that other interpreted that the by spirit vivifies, by the and not letter which the which [quoting Bidwell, 244, 312, S. 21 killeth.” from Downes U. 770, 796-97, (White, J., (1901) S. Ct. 45 L. Ed. con omitted)]. added) (citations curring) (emphasis it, judicial

Similar and restraint respect, impelled by the should shown Executive who the makes appointment, it, which the Legislature the Senate confirms and in a law support. enacts its

32? Not does in only the exercise of judicial general restraint that we follow avert require these established precedents, destruction and of the solemn Exec Legislature act of the utive, the but strongest public reasons dictate policy course here as a I First must imperative. a note caveat to view that or respectful only “great dinances” the Federal Constitution process such as the due and clause in the equal protection and matters enshrined Bill of in constitu Rights counterparts their a (or state tion) are subject flexibility responsively so as evolve times; to the needs of the and all other con changing stitutional deal with mechanics provisions because they of government must be static, considered as so immovable dead, in a sense, that as to them the Constitution could not serve its essential purpose by to the demands responding a Loan Home and changing society economy. Building Blaisdell, Association v. U. S. S. Ct.

L. Co., Ed. 413 Euclid v. (1934); Ambler Realty U. S. 47 S. Ct. 71 L. Ed. 303 Justice (1926), cited Heher for this Court Behnke v. New Highway Jersey Auth., supra.

It must constitution, be remembered un state “[a] like Constitution, the Federal not a a but limita grant tion of function legislative power.” The of the Legislature is to exercise portion sovereign power residing the first in the instance im subject to people, limitations posed Federal Constitution and our as well own, those so fundamental in the compact social Anglo- Saxon of natural principles as to be im justice necessarily and in plied; determining the consti operative scope of tutional limitation courts are “to enjoined collect sense clause,” meaning to ascertain goal being “the intent of people restraint.” imposing particular Auth., Behnke v. New Jersey Highway 13 N. J. supra, at 24.

In considering flexibility con- application then, stitutional provision including one thus interdictory 328 not it does nature, to understand tlrat important it is will constitutional with, but is concordant

disparage, as a be considered for their Constitution to people — to be charter,9 ages to serve designed living times; this developing problems to adaptable age- fixed and any slightest way abandoning without interpretation, just Chief 9 To reach a fair and forget, that it is a “we must never Marshall stressed that Justice provisions argued expounding.” were that its constitution we are He consequently, and, ages come, to be for to “intended to endure Mary adapted crises human affairs.” M’Culloch v. to the various 601, land, 415, 579, (4 Wheаt.) 316, 407, L. 603 4 Ed. 17 U. S. (1819). government, continually operating charter The Constitution is States, 660, 667, 414, 424, Ct. v. United S. 64 S. 88 Yakus 321 U. Hirabayashi (1944) ; States, 834, v. S. L. United 320 U. Ed. 848 ; Opp (1943) 81, 104, 1375, 1387, 87 L. Ed. 1788 S. Ct. Administrator, 126, 145, Mills, 61 S. Ct. Cotton Inc. 312 U. S. pointed 524, 532, ; (1941) been L. Ed. and it has out that: greatest expounders Constitution, from John Marshall always strength Holmes, to Wendell have insisted that the Oliver vitality of the Constitution stem from the fact its adaptable principles changing Jackson, [R. are events. Struggle Supremacy (1941)]. Judicial Gompers States, Holmes v. United 233 U. S. Justice observed 604, 610, (1914) 34 S. Ct. 58 L. Ed. provisions are not mathematical the Constitution formulas having organic form; they living in- their in their essence are transplanted English significance soil. Their stitutions formal; gathered simply by taking vital not it by considering dictionary, origin words and but their and the growth. line of their adaptability vitality and that caused court It this sense of Exposition McCrane, supra, Jersey Sports say Auth. v. & in New Super., N. J. at 476: public say not consti- need was [I] t is no answer to Constitution, years ago. tutionally That with which envisioned 50 purposes,” “public im- was created to endure measures the law many adopted ages to be and was intended therefore generated changing needs and social of human affairs crises sensitivity them. demands for towards ought life “states or has such And because the Constitution hour, principles expanding passing for an for the but state not rules Gardozo, (1921). the Judicial Process 83 B. The Nature future.” con- which free by people agreed by less basic principles in their stitution to be bound together government. as those by of the discerned people, and intent

hopes in are paramount. It judge, whom they designated would fulfill judicial responsibility, this that I sense will of the so in the constitutional reposed by people. us also, I And is in this would believe sense aof clause, in constitutional the context “ineligibilty” it, should statute so intended to with obviously comply not vivifies, according “spirit considerеd concept letter which killeth.” This by ap- adaptability application particularly sense good here, “ineli- propriate considering relationship in clause to the current realities gibility” government New as with extant at the time Jersey, compared those the clause’s birth. are which we century half in

In this second by created government of the civil living, operation de- inflation, come to has Constitution, our because in- annual, “cost-of-living” almost pendent upon frequent, (although all employees State creases in compensation surely condition case of judges), more rarely 1947.10 These 1844, nor so even significantly extant occur, law, appro- course, supported increases then, stop, civil is to government bill. Unless priation adjust 10 Although war-related “bonuses were several there during which the 1947 Constitution ments” enacted decade across-the-board, general, adopted, 1940-1950, cost-of- there were no living salary passed. increases 1966-1976, general, Compare with that era the decade of where cost-of-living an annual increases have become almost event: — 1967, L. o. 63 5% — 1968, L. o. 119 5% — 1969, L. c. 71 5% — 1971, L. o. 6% — adjustment) (salary-range L. c. 73 2.18% — L. c. 188 5.50% — L. c. 58 6% — (approximately) L. c. 7% literal interpretation and unconditional application of the “ineligibility” clause, under all real- circumstances, would istically bring about the extreme unsuccessfully sought result by the Convention dissidents of namely the total exclusion of all legislators, term, their during appointive office, executive, administrative as well ju- dicial, to the clear Yet disadvantage the state. absurd result was not surely intended the Framers of the Constitution nor the who people adopted it. As has been noted, James Madison argued that of some the ablest would be found in the Legislature and it would be mis- take to thеm from disqualify this, office. And not for the sake of the appointee, but for that of the government and commonweal. The senatorial in plaintiffs case, this Ias have noted, concede the virtue and propriety of this ap- pointment as concern the character and of ability the ap- pointee, pointing only to the constitutional clause and its supposed inflexible and literal application, in of derogation the appointment. We are muqh thus confronted here not so with the of a fate specific with appointee as the interest of the State and its government, its judicial system and the evinced plainly legislative will, all inevitably concerned with the constitutional of validity this appointment.

Were it for the not “limitation” clause his “during legis term,” lative the effect of N. A. J. S. 2A:1A-8 would be to withhold the entirely benefit of generally increased emolu ments legislator-appointees, with the result that the “office” to which one of them would be would appointed not an “office” be whose emoluments were law increased by enacted during his In case, term. such without the “limitation” vulnerable clause the joints of “in the — clause would have eligibility” this much least play11 interpretation principles 11 “The of constitutional must not be too machinery government literal. We must remember that of the would joints.” play not work if it were allowed in a little its Oliver J., Holmes, Pinson, 499, 501, Wendell Bain Peanut Co. v. 282 U. S. 228, 229, (1931). 51 S. Ct. L. Ed. emoluments from statutory withholding that in negate logic would “office” to which was Wiley appointed office was increased of that compensation idea that the law. complicating to me clearly So does it seem needlessly “limitation” subvert hurtful clause would statutory section quoted, main legislative purpose as be surplusage ignored, it should considered in cited (in- as done mаny salutary precedents Court noted, majority the action cluding, in “exclusion” clause discarding case in very ap- to leave the result, would be my opinion, ioto). statute, basic section pointment, light construed, so valid in the constitutional sense. perfectly con-

Nor, construed, view, so should section my IV, law” in of Article sidered to be violation “special VII, operates upon of the Constitution. It par. identifiable and classified readily appropriately group, New other- all say, Jersey Legislature members All office. judicial wise eligible appointment office judicial such when state persons appointed 8 They to the terms of section of the statute. subject are increased, of their as to must emoluments forego part all members the statute. one judiciary, by other of the No who classification is is excluded should be included. This all excluding and arbitrary, including not unreasonable or joints Clause, play much in the of the Due Process “There is this respect demanding stop imposing rule of a with short more we prison disciplinary White, [in cases].” to witnesses documents McDonnell, 539, 2963, 2979-80, J., 567, S. Ct. v. 418 U. 94 S. Wolff 935, (1974). 41 Ed. 2d L. 957 provisions must constitutional be administered with caution. “Great joints machine, play must Some must be allowed for the and it legislatures guardians liberties be are ultimate remembered people quite degree great as as the courts.” and welfare a Railway Missouri, Company May, & Texas Texas v. 194 Kansas 639, 270, 638, 971, (1904), quoted 267, U. 24 S. Ct. 48 L. Ed. 973 S. Building Auth., v. N. J. Heher in McCutcheon State 13 Justice 46, (1953). who none are for eligible appointment bench. See Hancock, v. Budd N. J. L. Ct. (Sup. 1901). Nor, as viewing class, the relevant as does the majority, being judiciary, more specifically Associate Justices I Supreme Court, do consider ar such classification bitrary unreasonable. It true of that is that the members like judicial Court as perform duties, dо members other courts affected the statute. Yet the legislator-appointee receive, would at least for the time statutory (during of N. J. A. life S. 2A:1A-6), less than that compensation of his is not for an un colleagues. This so or arbitrary cause, but only reasonable because he would otherwise office, for a ineligible legitimate foundation for classi fication, all lest current legislators ineligible appoint office, ment to judicial drastic constitutional result never intended by the The classification people. then, my opin ion, is not based an upon or foun arbitrary unreasonable v. Essex Harvey Freeholders, dation. Bd. Cty. 30 N. Comm’rs, 389-91 Koons v. (1959); Atlantic Bd. City N. J. L. 332-33 1946), aff’d, Ct. 135 N. J. (Sup. L. Hancock, &(E. 1947); A. Budd v. supra, 135, 136- Parsons, 37; ‍​‌​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌​​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​​‌‍Van v. Riper 40 N. J. L. 8-9 Ct. (Sup. 1878). —

That foundation of course is viewable in aspects, two if deemed Constitution, as intended to circumvent ar- bitrary and and thus within the unreasonable ban. But seen in way, another as I see many it reasons stated, an honest attempt comply with Constitution, not nor arbitrary unreasonable and is thus constitutionally sound all It respects. evasion of a illegal constitutional provision or prohibition, accomplish result, desired lawful itself, by dis- covering following legal way to do it. Clayton Kervick, 52 N. J. 151-52 (1968).

And even if one were to entertain a reasonable doubt on this “it point, is the settled of judicial rule policy this jurisdiction that legislative enactment will not be de- to the is so its Constitution repugnancy void unless dared Behnke as leave no room reasonable doubt.” manifest Auth., 13 N. J. 25. Highway supra, v. New Jersey the decisions constitutional Many interpreting quoted, here, forswear a literal as and application such provision Mere- to ascertain true constitutional purpose. endeavor Green, Mayor and Comm'rs v. Kauffman, dith v. supra; Lyons Guy, State ex rel. v. 107 N. W. D. supra; (N. 2d Davis, Toronto, Shields v. Spears supra; 1961); supra. Con the same rule to our interpretation In applying noted, conclude, clause I would “ineligibility” stitution’s the “exclusion” of the increase provision judicial salary A. act S. is not an to circumvent (N. 2A:1A-8) attempt con the constitutional On the safeguard. contrary, as here strued to for the provide unconditionally withholding 2A:1A-6, of the emoluments increased appointee I deem the to be faithful basic constitutional statute in all with constitu consistent purpose respects tional requirement.

I would hold the nomination, therefore, free Wiley lawful statutory limitation, such to be and constitutional. Justices and Schkeiber authorize me to state Pashman this they join opinion. J.,

Pashman, with Chief dissenting. join Justice I Wiley that Senator concluding eligible appointment However, to this Court. I wish to emphasize my disagree- with Part I of majority’s opinion. ment The four-member section majority joins this opinion Court’s holds Senator Wiley’s appointment invalid for the reason that Act solely Salary Increase violates the laws N. J. Const. special provision, (1947), 9, cl. I believe IV, Art. its treatment (5). ¶ seriously distorts limited function of this question provision applies wholly test which This at odds with novel logic precedent. interpretation 334

would the Court to strike down whenever permit any statute it with the disagreed legislative purpose.

I Act, N. J. The that Increase majority' Salary finds law”; S. A. 2A:1A—6 et. is an unconstitutional seq. “special (salary law purportedly by excising eight saves the section Be act. from the exemption legislator-appointees) increase salary cause the decision ensures majority’s that the will thereby applicable appointed to any legislator judicial clause bars post, disqualification I believe that the initial link appointment. — chain of is a Increase Act reasoning Salary —law” conceived. “speсial erroneously law” the act is majority’s holding “special rests on two New that since all premises: justices (1) Court Jersey the same work and have Supreme perform same must be within the same responsibilities, they classified Act category salary purposes; Salary (2) had, had, have only could constitutionally single objective of the salaries of members of the Judici- increasing Neither is correct. ary. premise

-4 The majority’s statutory initial that the classifica premise, tion must result in all justices on the Court treated being alike, misconceives the concept special legislation. correct inquiry under that constitutional is whether provision persons prevented salary increase under receiving the act have some definable which characteristic makes their exclusion rational when measured in terms of the purposes which the Vail Mut. law seeks Assoc. accomplish. Alfred v. Bor. New Shrewsbury, 49 Roe v. (1971); Kervick, 42 N. J. Essex (1964); Harvey County Freeholders, Sutherland, N. J. 381, Bd. (1959); Construction ed. et Statutory 1973), rev. 40.01 (3 seq. sal Thus, classification in any is free to create Legislature structures, as are fur ary as the chosen long categories ther some If “conceivable interest of State. legitimate facts” clas state of exists which would support a statutory sification as reasonable the achieving means law will be sustained a that it purposes, against challenge Freeholders, v. Essex Harvey County Bd. is “special.” Branch, Wilson v. supra; 27 N. J. 360 cert. Long (1958), den. 358 U. S. Ct. L. Ed. S. 79 3 2d 104 (1958).

While explanations of what and what not con does does stitute special been legislation by have stated and restated courts, our it is well established it is not what a law includes that makes it Budd v. excludes. but it special, what Hancock, 66 N. J. L. 135 This (Sup. 1901). princi Ct. Board v. Essex Harvey was stated Court in County ple by Freeholders, supra: deciding general speсial, In whether an act is it is what is ex- ^ * * determining cluded that is factor not what is included. encompassed, general. If no one excluded who should be the law is 389; [30 N. omitted] citation J. And its v. Budd application explained the court Hancock: special general law, Within this a distinction between and a

question every appropriate object ease an is whether is excluded law, limitations, apply. only to which the for but its would If the legitimate limitation contained in jects, lawa is a classification of ob- its general Hence, object it is a law. if the of a law charac- have reasonably form, purpose legislated teristics so distinct as for the upon, by itself, general, notwithstanding oper- a class the law is upon single object only; general ates for a law is not because it operates upon every person state, every person in the but because brought predicament subject that can be operation. within its becomes to its [66 N. J. L. at 135-136] also, Comm., See Kline v. N. J. Racing 38 N. J. 117- Koons v. Bd. Comm’rs Atlantic City, (1962); N. L. J. 329 (Sup. N. J. L. 1946), Ct. aff’d o. b. & A.

(E. 1946).

But the fails to focus whether there majority upon characteristic of from receiving salary persons prevented exclusion, increase and instead which would such justify there are characteristics which emphasizes fact inclusion It attempts would their within the Act. justify classification statutory measure impact after Court, assumes a on the legislator-appointee position finding salary who would denied the increase any justice other would differ "in from the respect no five significant ante at 300. While nature Justices.” See Associate justices’ would have decision supported duties the same all associate within justices Legislature classify on that its focus fac- failure to category purposes, salary the act. down striking alone is not sufficiеnt reason tor Withers, Ass’n As the court Equitable stated Beneficial 1937) Div. : Eq. 134 (Ch. specified exempted legislature certain has [T]he mere fact the an operation act of would otherwise of what from the classes statute, general application, the to invalidate in itself sufficient is not arbitrary exemption lacking appears and an it such unless foundation. in a reasonable basis Eq. N. J. [122 at 138.] as Moreover, Chief ago Justice long Beasley con- rejected majority’s clusively approach of ascertaining a law had effect of whether creating disparities among extent, to some similar persons having, characteristics. He Parsons, in Van v. 40 N. noted J. L. 1 Riper (Sup. Ct. that a 1878) broad the words interpretation "special” and “local” terms of the effect or of a statute applicability render every “would almost at useful attempt legislation abortive.” [Id. 8]. in Harvey Court’s v. Essex Bd. analysis County

Freeholders, demonstrates the supra, foregoing principles. There the Court a statute reviewed a imposing mandatory retirement for court of 65 attendants. age Although all court attendants, statute applied generally exempted from the retirement requirement those who were persons not members of the county employees’ retirement system. claim in that ease presented the same as that argument which — .is IV, raised today that Art. cl. §7, ¶9, (5) prohibited the classification. The Court rejected the statute challenge even though the characteristic distinguishing in a (membership county retirement was unrelated system) to the tasks or duties of court attendants. Unanimously, we held: Legislature range It is has a well established that wide dis- determining pre- cretion in classifications and distinctions will be upon sumed to rest “if rational basis there conceivable support facts state of which would afford reasonable for them.” * * * facts,” reasonably assumed, A state “conceivable one although explicitly record, Legis- not stated in could be that lature decided to exclude from retirement those over 65 and not system

members of the retirement because the non-members would pension upon rely. have no which A classification based on the ground ability policy judgment of financial and a care oneself desirability limiting type as to those over haz- approaches problem ardous work reasonable are to a serious for the county. individuals concerned welfare of 390-91; [30 N. J. at omitted.] citations in Ervolini Camden County, J. L. Similarly, Ct. (Sup. 1941) upheld the court enactment which failed to classify to the work that according persons they performed. That case involved statute setting scales salary for constables and court attendants who performed same services in counties same class. The population court held that in salary upon differences whether or basing employed the individual county had adopted the Civil Service Act did not violate the special laws provi- sion, stating: equally upon general operate group all of a A law to must regard purposes objects which, having legislation, the to the are important sufficiently

distinguished by marked and characteristics to by themselves. make them class 475; emphasis [Id. added.] Accord, 8 N. Edgewater, Borough Lynch (1951). Court on the not whether all

Hence, justices the test is responsibilities, same assume the the same work and perform excluded rationally could have but whether Legislature the increase dur- salary the from receiving legislator-appointees the to uphold required Court is terms. The their ing elected state of conceivable “any if there classification the reason for statu- rational facts” which would suggest tory exemption. Act, the Increase the Salary these

Applying principles must, first, persons Court determine excluded whether marked salary from increase are characteris- receiving are them sufficiently tics which distinct to set apart class of who would receive the justices increase. general statutory exemption applies only legislator- Clearly, who elected office when the In- served appointees Salary Second, the must be passed. exemption Act was ration- crease the legislation. purposes related “conceiv- ally able state facts” justifying exemption precisely same as which prompted framers our Constitution the disqualification clause. That constitutional adopt pro- vision was intended to eliminate bias which personal might bill, affect vote on a increase with- legislator’s salary out entirely legislators from office dur- excluding appointive Hence, the their elected terms. ing compromise finally as our emerged present balanced two provision somewhat goals. related but conflicting Legislature, Bill, Increase has Salary rationally enacting exempted section order to legislator-appointees eight accomplish and to ensure that act would the same competing goals not be reasons. Hot improper is the passed only exemp- tion meet rationally section, tailored to purpose but it means is the which this only legislative purpose been could have accomplished.

B However, majority consider refuses whatever reasons the have had Legislature might enacting section eight. Mr. Justice Mountain only finds that the statute had one object, salaries, to raise judicial therefore, any and that classification must further ante at objective. sole See 298. He even states that if did have legislation corollary objective of the disqualification with comporting clause, this “in no classifi- can be said to create valid way cation within framework of this legislation.”

Initially, the factual Increase conclusion that Salary Act salaries, intended to only judicial nothing raise more, is erroneous. Committee amendments to the Salary Increase Act indicate that the act was with intent passed clause, with comporting disqualification the constitutional in- preventing legislator-appointees receiving crease. See Senate Committee Judiciary statement accom- L. 1974, committee amendments to what is panying now Moreover, c. 57. this Court is not into required inquire if motives there is any state of facts which would support a classification. Harvey Essex Bd. Free- County holders, Branch, Wilson v. supra; Long supra. Thus, Washington Court stated National Ins. Co. v. Bd. Re- view, 1 N. J. 545 (1949), that: Legislature ., may, degree having [T]he . make . distinctions basis; they presumed rational will if to rest on that basis any there be conceivable state of facts would afford reasonable ground for its action.

[Id. 552.] But the majority suggests attempt Legis- lature to draft Increase Act to Salary with the comport constitutional disqualification IY, clause would violate Art. ¶4, which cautions §7, against law more than embracing one object. Once the law again, does not support this con- clusion. IV,

Art. has never been held to the enact prevent §7, ¶4 ment of a statute because it included within its terms merely ir is exemption. provision simply That is controversy. to application relevant this entire Its true is intended made clear in numerous decisions that it holding and and to notice to the prevent public to “logrolling,” give which an act relates. See subject of the legislators Comm’n, Kline v. New Jersey Racing supra; e. g., Czarnicki, Zelinski, v. v. 33 N. State (1961); State J. Burlington v. 1940); Pennsyl N. J. L. 43 Ct. (Sup. vania, A. 1928). Thus, 104 N. J. L. & Sutherland (E. that: writes complied provisions if the various relate is with constitution general purpose carrying to, of an en- out the a means of and are ** * any grouping the If is reasonable basis there actment. public together, deceived, if the will and not matters various will be sustained. act [1A, Sutherland, supra § 17.03 6; omitted] at footnotes an act dealt courts, challenges in that considering

Most whether object, have focused simply upon one than with more notice sufficiently in of gave act question of the the title instance, Eor re- of legislation. purpose the general a statute embraced than that more challenges ferring same provision, of Mr. Justice violation object one Painter Court v. for a unanimous stated Mountain Painter: be noted, of title is intended often statute has been As * * * requirement satis- The constitutional index. not an and

label public Legislature gives and to the notice the title fied when way misleading. purpose general Act and is not of J.N. [65 206.] v. case Chalmers companion case, that In Chalmers, the Court held that a stat- N. J. 186 (1974), aof and dis- marriage both dissolution with dealing ute one within the object meaning assets tribution Art. 4. In IV, Chalmers case, Mr. Justice Sul ¶ livan wrote for the Court, the Constitution re noting quired only that statutes provisions gen relate to eral purpose legislation expressed adequately in the title. 65 J. at 195.

One think would this case would be easily covered by the rule in general General Public Di- Loan Corp. Taxation, Division rector 13 N. that: (1953), exceptions provisos objec- [in enactments] are they can no tionable unless it be shown that have con- reasonable purpose nection .... with the the statute [Id. 403.] Are we to believe provision restricting legislator- appointеe salary increase unrelated to receiving Act? Increase Salary

II There is conclusion nothing support majority’s a Increase Act is law. Salary special argument, Its based, in on the rule part, “one-object” wholly unper- is suasive, and to mind a entitled brings passage article Law Than “No Shall Embrace More One Subject”: one-subject purely pragmatic from When the rule is examined point appears advocate, of view of the a rule as weak unde- pendable quiver. emerges a arrow in most remarkable fact investigation that, the rule invoked while has been only cases, hundreds of held handful cases the courts have subject. justify an act to embrace more than one This seems argument courthouse lore to that an based sub- one on effect desperate ject argument rule is who lacks advocate often sufficiently persuasive sound and one. supra Sutherland, 523; emphasis [1A added.] I would Senator Wiley’s appointment hold in all respects. Hughes

Chief Justice and Justice Schheibeb ‍​‌​‌‌‌​​​​‌‌​‌‌‌‌‌​​‌​​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​​‌‍join this dissent. Mountain,

For Clif- Sullivan affirmance—Justices Carton —4. and Judge ford Hughes For Justice and Justices Pash- reversal —Chief man and Sohreiber —3. JERSEY, PLAINTIFF-APPELLANT,

STATE OF NEW ABRAMS, BARRY DEFENDANT-RESPONDENT. February Argued 1977. 1976 Decided November Vaarsi, General, Attorney argued Mart Deputy Mr. Hyland, William F. Gen- Attorney (Mr. for appellant cause Jersey, attorney). eral New Klein, Defender, Paul M. Assistant Public Deputy Mr. Ness, Van Stanley O. (Mr. the cause respondent argued Defender, attorney). Public substantially affirmed judgment

Per Curiam. Di- in the opinion Appellate the reasons expressed vision.

Clifford, The issue before J., concurring dissenting. direc- is skewed slightly the Court this case Powers, N. J. 346 decided also (1977), tion State there I saw it was whether day. question the declarant inculpatory statements were hearsay him that but liability far to criminal exposing sense of so have made. would not been for their truth the declarations they conclusion that judge’s view was the trial My

Case Details

Case Name: Vreeland v. Byrne

Court Name: Supreme Court of New Jersey

Date Published: Feb 11, 1977

Citation: 370 A.2d 825

Court Abbreviation: N.J.