Citation Numbers: 144 A. 169, 106 N.J.L. 62, 21 Gummere 62, 1928 N.J. LEXIS 180
Judges: Walker, White
Filed Date: 12/13/1928
Status: Precedential
Modified Date: 11/11/2024
The county of Hudson having applied to the Supreme Court for a judgment declaring the rights, status and legal relation of the inhabitants of that county under an act entitled "A supplement to an act entitled ``An act to regulate elections [Revision of 1920, passed May 5th, 1920] and the amendments and supplements thereto,' which supplemental act was passed October 9th, 1928" (Pamph. L., ch. 291); and the nine justices of that tribunal sat in banc and heard the argument on October 22d, and rendered its decision October 25th, and entered its judgment October 26th, 1928, denying the application. Thereupon the county of Hudson filed in the clerk's office of the Supreme Court an appeal to this court on October 29th, and on that date, October 29th, 1928, requested this court to place the appeal on the present October term (1928) calendar, and expedite its hearing instanter, on the ground that a question of great public interest was involved.
Counsel for the county of Hudson gave notice to the adversary parties thereto, and the motion was heard by the full court in the presence of counsel representing both sides. Concededly, the question is one of great public importance.
As what follows concerns largely the construction of the constitution, it is well to remark in limine that in the main the general practice governing the construction of statutes applies also to the construction of constitutions. 12 C.J. 690. And in State v. Kelsey (Supreme Court),
By having sat in banc and decided this cause in the court below, the nine justices of the Supreme Court, who are constituent members of this court, are disqualified to sit here as members of the Court of Errors and Appeals and take part on the hearing and determination of the appeal in this cause. And this was conceded. It is pertinent, however, to cite the disqualifying part of the constitution, which is as follows:
"When a writ of error shall be brought, no justice who has given a judicial opinion in the cause in favor of or against any error complained of, shall sit as a member, or have a voice on the hearing, or for its affirmance or reversal; but the reasons for such opinion shall be assigned to the court in writing."Constitution, Art. VI, § 2, ¶ 6.
And it is pertinent also to cite Gardner v. The State,
The present application being a motion to put the appeal on the list of causes for the present term and advance its argument, not being a hearing of the appeal on the merits involved, the justices of the Supreme Court are not disqualified from sitting with their brethren and voting for or against *Page 66
the motion. All the justices may sit and vote on the argument of preliminary motions. Gardner v. State, supra, and on collateral motions. Engle v. Cromlin,
The question now arises, Can a constitutional quorum of this court be assembled for the purpose of hearing the appeal in question? If so, the matter being one of great public importance, it should be put upon the list and the hearing advanced at once. If, however, by reason of the disqualification of the justices of the Supreme Court to sit and participate on the hearing of the meritorious question involved, the numerical strength of this court is reduced below a quorum as provided in the constitution, then, obviously, it would be useless to set the case down and order the hearing thereof, as there would be no court to hear and decide it at this time. That part of the constitution creating this court provides:
"The Court of Errors and Appeals shall consist of the Chancellor, the justices of the Supreme Court, and six judges, or a major part of them." Constitution, Art. VI, § 2, ¶ 1.
By the mere reading of this article it is plainly apparent that the constitution means that only a majority of all the judges named to this court can hold a session thereof or transact any business therein. The language is that the court shall consist of "the Chancellor, the justices of the Supreme Court, and six judges, or a major part of them." Let it be observed that after "the Chancellor" is a comma, after "justices of the Supreme Court," a comma, and after "six judges," a comma. Then follows the phrase, "or a major part of them," which must refer back to all of the antecedents, namely, the members provided for in the article. And there is nothing whatever to indicate that it refers only to a part.
On the particular question here involved, namely, what constitutes a quorum of the Court of Errors and Appeals under the constitution of 1844, there is no reported decision (except thedictum in Donohue v. Campbell,
Gibbons v. Ogden,
Counsel for petitioner-appellant urges that the words "or a major part of them" immediately following the words "and six judges" apply only to the six judges, the object being to maintain in the court at least four "lay" votes representing the purpose of the convention that framed the constitution, to perpetuate in this court the desire of natural equity, to control, or at least affect, the technical tendency of the judges trained in the law, who constitute the other part of the court. And in support of this, reference is made to the proceedings of the convention that framed the constitution, and the compromise said to have been effected as to this court. The judges are referred to throughout the argument of counsel as "lay judges." But there is not a word in the constitution that requires any of the members of this court to be lawyer or layman. It is a fact that for many years the majority of the six *Page 68 judges were laymen, and sometimes all of them have been laymen. But there is nothing controlling in that. The judges are either law or lay accordingly as they are lawyers or laymen, and the bench of judges almost always has had upon it both classes. Just fifty years ago (1878) the six judges of this court were composed of two lawyers and four laymen. It is now composed of four lawyers and two laymen. The lawyers in that class (1878) were Amzi Dodd, before and after that a vice chancellor, and Caleb S. Green, an eminent member of the legal profession. See 40 N.J.L. vi. Although there is no qualification for Chancellor or Chief Justice under the constitution of 1844, nevertheless, they have always been appointed from the ranks of the lawyers. And during the period from 1776 to 1844 the Governor was Chancellor, but there was no layman chosen governor, nor was there any lay Chief Justice; although one or more justices of the Supreme Court were laymen during that period.
It certainly never could have been intended by the constitution creating this court — all of whose members might be lawyers and none laymen — that the six judges, or a major part of them, should always be required to sit on errors at law and appeals from Chancery — not even in cases where an actual majority of the whole membership was disqualified. That would indeed be holding the court by less than a quorum in direct violation of the constitutional mandate. And this leads to some observation upon the Supreme Court sitting in banc; for, clearly, when the judges divide themselves into parts, say three each, as is now the rule, and only three would be excluded on appeal in ordinary cases, then there would be a constitutional quorum to hear the cause in the court above.
In Wood v. Fithian,
Thus it appears that when the court divided itself it was for the purpose of expediting common business, and it follows that for the hearing of the merits of causes it sat in banc in all cases. And, as seen, where the questions involved were difficult and complicated, the court might order argument of common business to be heard before all the judges, when the counsel on either side desired it. And by later statute (Rev. 216, § 18) it was provided that the Supreme Court might be held by the Chief Justice or any one of the justices; and this is not restricted to the hearing of common business, but is general in its scope and refers to all business; and then follows the provision to divide for the transaction of common business; and so it is in the present act. Comp. Stat., p. 1711.
Now, it appears that the constitution having provided for but one Supreme Court, that the justices may at any and all times sitin banc, but may divide themselves for the convenient transaction of business, errors or common; and while *Page 70
this division is made by statute and rule of court, nevertheless, it appears to be an inherent power. And we are not without a guide-post as to this, for in Gray v. Bastedo,
Again, in Brown v. Street Lighting District,
If, as we have seen, the power of the Supreme Court to designate less than its whole number to sit for the transaction of business, and that the constitution creates but one Supreme Court, which may sit in banc when it chooses, the language of Mr. Justice Van Syckel, speaking for the Supreme Court, inTraphagen v. West Hoboken,
And this court cites Traphagen v. West Hoboken with approval in East Orange v. Hussey,
From the preceding it appears that the question always has been as to the right of the Supreme Court to divide itself into branches for the hearing of causes, and not that it might sit together in banc; the latter was always its inherent right.
It is true that at the time of the adoption of the constitution in 1844 the Supreme Court consisted of five members, the Chief Justice and four associates, and that when a writ of error was brought in the Court of Errors and Appeals, there were constitutionally able to sit in review seven judges, namely, the Chancellor and the six appointed judges, and this assumes that all five members of the Supreme Court were disqualified by having sat in banc, or otherwise.. But the constitution did not contemplate that the Supreme Court would always consist of five members, as is manifest, for it also provided as follows:
"The Supreme Court shall consist of a Chief Justice and four associate justices. The number of associate justices may be increased or decreased by law, but shall never be less than two."Constitution, Art. VI, § 5, ¶ 1.
So that it was just as clearly within the intent of the makers of the organic law (that with the increased population and business) the Supreme Court might be, as it has been, extended into such a number of members as that they would form a majority of the Court of Errors and Appeals, and, consequently, that all or enough of such members being disqualified for any valid reason, there might exist no constitutional quorum to hear an appeal, at least not until by changes in membership of the court of a sufficient number of judges might be assembled for the purpose. And so it is here. An appeal has been taken in this matter, and if at any time in the future the personnel of the court should so change as to make a majority of all the members of the Court of Errors and Appeals *Page 72 able to consider and pass upon it, that may be done; and there are several cases in which this very thing has occurred.
The right of appeal is not given in our constitution. And inPennsylvania Railroad Co. v. National Docks Railway Co.,
Counsel for appellant urges that the constitutional convention of 1844 made the six judges represent the survival of the council, which, with the governor, was the Court of Appeals under the constitution of 1776, the purpose being, as he already says, to control by natural equity the tendencies of the justices trained in the law by and through the votes of those six judges. And this is said in a brief which concedes that the number of Supreme Court justices was likely to increase (as in fact it has, now increased under the terms of the constitution); that the words "or a major part of them" immediately following the words "and the six judges" apply only to the six "lay judges" representing the purpose of the convention to perpetuate control or at least affect the tendency of the justices trained in the law who constitute the other members of the court. If that were so, and if it had that tendency, the convention had ample opportunity to effect that in the most practical way, namely, by saying so in unmistakable terms, which, significantly, was not done. And, besides, no such tendency exists.
In considering the structure of this court, it was moved in the convention to strike out the words "justices of the Supreme Court," which was defeated by a vote of eighteen ayes to thirty-five nays. Journal of Convention, p. 115. Then motion was made to strike out the words "and six judges," which was disagreed to (no vote taken); then it was moved to strike out the words "six" before the word "judges," and insert "ten." And on this motion there were ten ayes and forty-three nays. Ibid. 116. Then motion was made to strike out the words "six judges" and insert "members of the senate," and on this question there were eleven ayes and *Page 73 forty-three nays. Ibid. 118, 119. So it will be seen at a glance that the proceedings in the convention do not support, but are directly contrary to, the contention of counsel. The question of "lay" judges has been referred to above. There are none provided. And, besides, the council was not a strictly lay body. As there are lawyers in the senate to-day, there were lawyers in the council between 1776 and 1844. A glance at the record shows that there were many members of the legal profession in the council from time to time, who were eligible to then sit in the Court of Appeals. And some of them were, or became, very eminent lawyers. In the first council (1776) there were thirteen members exclusive of the governor, who was a lawyer, two of which members were lawyers, namely, William Paterson and John Cleve Syms, the latter having been a member of the New York bar. And there is nothing in the convention to show that a compromise was effected. All attempts to change the membership of this court as reported being defeated by overwhelming majority.
The language under discussion is so obvious in its meaning that there is no occasion for exploring the intention of the draftsmen of the constitution. In fact it is not permissible. It is quoted only because counsel refers to it.
The Supreme Court In re Murphy,
And the Supreme Court, in Sooy ads. State,
In Donohue v. Campbell,
It is contended that the constitution of 1776, wherein it provides in Article IX "that the governor and council [seven whereof shall be a quorum] be the Court of Appeals in the last resort in all causes of law as heretofore," gave jurisdiction in errors and law only and not appeals from Chancery (the latter being given by statute of June 13th, 1799); and it was argued that that court (the governor and council) consisted of laymen and not justices; and it appears to be the argument that it was the intention of the constitutional convention of 1844 to continue the lay feature of that court. In characterizing that court as one composed of laymen, counsel is in error. William Livingston, the first governor of New Jersey, and member of the Court of Appeals, was a distinguished lawyer. And two of the members of council were lawyers. So the argument about the "lay" membership of that court falls of its own weight.
In Harris v. Vanderveer's Exrs.,
There is another doctrine which is dispositive of the case subjudice. It is that of practical, contemporaneous construction. Said Chief Justice Gummere, speaking for this court in Com. RoofCo. v. Riccio,
In State v. Kelsey, cited above, Chief Justice Beasley, speaking for the Supreme Court, after stating the facts, said (atp. 21): "Under this condition of affairs, as this case is to be tried by the court upon its merits as well as the law, this court is obliged to find, and does find, as a matter of fact, that the legislation in question has received a practical construction to the effect stated for a period of time in excess of fifty years. Therefore, to consider the question as to the proper meaning of that legislation as an open one would, in my opinion, be utterly opposed to public policy, precedent and the admitted principles of law. The legal rule is succinctly expressed in the maxim of the civil law, ``contemporanea exposito est fortissima.' The doctrine has such prevalence that it is applicable not only in the exposition of statutes, but in the interpretation of constitutions of governments. Its antiquity with respect to the English law is evidenced by the comment of Lord Coke, who says: ``Great regard ought, in construing a statute, to be paid to the construction which the sages of the law who lived about that time, or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time the law was made.'" *Page 76
That the Supreme Court has repeatedly sat in banc is amply exemplified in the reports. State v. Rogers (1894),
An act was passed in 1873 providing for decreeing and making known that certain laws and joint resolutions have become inoperative and void. It provides that when the governor shall have reason to believe that any law or joint resolution was not duly passed or approved as required by the constitution, he may direct the attorney-general to prosecute the facts in the Supreme Court and pray that the law or joint resolution may *Page 77 be decreed to be null and void, and the court, after hearing, if satisfied that the law or joint resolution was not duly and constitutionally passed or approved, should have jurisdiction and power to decree the same or any part thereof to be null and void, provided that the final hearing shall take place before the Chief Justice and at least three of the associate justices of said court; and that two or more citizens, within the time mentioned, might present a petition, and the court should thereupon proceed in the same manner. Comp. Stat., p. 4978, §§ 43, 44, 45. Here is a direct legislative recognition of the fact that the Supreme Court may sit in banc, and the act requires the sitting of at least four members of the court. It would, of course, be satisfied with all.
Under this act there have been numerous prosecutions before the court in banc — the Chief Justice and three associate justices being required to sit, and all might, of course, sit in such cases.
Reported cases will be found as follows: In re Public UtilityBoard (1912),
Finally, it may be said that in all the reported cases under the act of 1873, above mentioned, it did not appear that any counsel objected to the court sitting in banc, and whether or not counsel requested the hearing and decision of the full court, or that being ordered by the court without such request, if no protest or objection was made, consent thereby was tacitly given, and surely no one not objecting could complain. Consent is manifested by action, or by inaction, or by silence, from which arises an inference that consent has been given. *Page 78 Bouv. Dict. (Rawle 3d Rev.) 611. This is the law and is constantly applied by the courts. In Laure v. Singer,
Upon this whole matter we are clearly of opinion that the Supreme Court properly exercised its prerogative of sitting inbanc upon the hearing of the appellant's application in that court, and that, because a majority of the Court of Errors and Appeals is therefore now disqualified from participating on the hearing and determination of the appeal, a constitutional quorum of this court cannot be convened at this time to hear and determine it; and, therefore, the cause on appeal should not now be listed and ordered for argument.
Although on a motion no vote is taken, but the decision only is announced; nevertheless, I am authorized to say that the entire court concurs in the decision reached in this case; Judge White differing on certain views of the law, as stated in his opinion filed herewith.
Gualano v. BD., ESTIMATE OF ELIZABETH SCHOOL DIST. , 72 N.J. Super. 7 ( 1962 )
Imbrie v. Marsh , 3 N.J. 578 ( 1950 )
Greenan v. Braca , 18 N.J. 361 ( 1955 )
Board of National Missions of Presbyterian Church in the ... , 9 N.J. 349 ( 1952 )
New Jersey Pharmaceutical Ass'n v. Furman , 33 N.J. 121 ( 1960 )
Town of West Orange v. Jordan Corp. , 52 N.J. Super. 533 ( 1958 )
State v. Musto , 187 N.J. Super. 264 ( 1982 )
Schierstead v. City of Brigantine , 29 N.J. 220 ( 1959 )
New Jersey Association on Correction v. Lan , 80 N.J. 199 ( 1979 )
TRUSTEES OF RUTGERS COLLEGE IN NJ v. Richman , 41 N.J. Super. 259 ( 1956 )
Hill v. City of Summit , 64 N.J. Super. 522 ( 1960 )
State v. Clark , 15 N.J. 334 ( 1954 )