In re Vice Chancellors

• Decision Date: 17 January 1930
• Parties: In re VICE CHANCELLORS.
• Court: New Jersey Court of Chancery

148 A. 570

In re VICE CHANCELLORS.

Court of Chancery of New Jersey.

Jan. 17, 1930.

(Syllabus by the Court.)

In the matter of the appointment of Vice Chancellors, their powers and duties.

WALKER, Chancellor. So many persons have of late years observed that the Legislature has control of the manner of appointing Vice Chancellors, that the Chancellor, in whom the power has always been lodged, can be divested of that power and that it can be bestowed upon the Governor, with or without the consent of the Senate; nevertheless, no real attempt has been made to do this; but, the suggestion being so often put forth, it seems that the facts have only to be stated to show that the Chancellor alone is the single functionary who may constitutionally make such appointments.

It is sometimes said that as the Governor appoints the Associate Justices of the Supreme Court, and as the office of Vice Chancellor is created solely by act of the Legislature, therefore the Legislature can designate the appointing power; but this is fallacious, as will hereafter appear. As much as it may be desired that the appointing power be lodged in the Governor by and with the advice and consent of the Senate, it will require a constitutional amendment to accomplish it.

The reason why the Governor appoints the Justices of the Supreme Court is that the Constitution of 1844 requires it. It provides in article 7, § 2, par. 1, that the Governor shall appoint, by and with the advice and consent of the Senate, the "Chancellor" and the "Justice of the Supreme Court." And that, of course, includes the Chief Justice. At the time of the adoption of that Constitution the Supreme Court already consisted of five justices,—a chief and five associates. Donohue v. Campbell, 98 N. J. Law, 755, 762, 121 A. 700; In re Hudson County (N. J. Err. & App.) 144 A. 169. Up to the time of the adoption of the Constitution of 1844 and after the passage of Governor Franklin's ordinance, the Court of Chancery consisted of the Governor, but was made by that instrument (Constitution of 1844) to consist of a single individual appointed by him, as shown above.

There are two ways in which this matter may be exploited, one is, to take the present posture of the court, trace it back to the beginning; the other, to go back to the beginning at once and follow it down to the present time. The latter is the more logical, so I shall begin with the institution and construction of the court.

New Jersey consisted of two provinces, Bast and West Jersey from 1676 until 1702, when each being dissatisfied with the government thereof, they surrendered the two provinces of Bast and West Jersey to Queen Anne, April 15, 1702. Grants and Concessions, Learning and Spicer, p. 609. The Queen accepted the surrender (Ibid. p. 617), and appointed Edward Hyde, Lord Cornbury, to be Governor of Nova Caesarea or New Jersey (Ibid. p. 647), namely, the divisions of East and West Jersey, which had thought fit to reunite into one Province and settle under one entire government. The Queen issued her commission to his Lordship December 5, 1702. Ibid. p. 647. The commission provides as to courts, etc. Ibid. p. 651. No Court of Chancery had been created in either province of East or West Jersey, although in the former, equitable principles had been administered in the Court of Common Right; and it is said that the law was equitably administered in the courts of West Jersey; but after the surrender the courts of the United Province were established by ordinance (by and with the advice and consent of the Council) of the royal Governor and later royal Governors. The Courts of New Jersey, Clevenger and Keasbey, p. 81 et seq. Full power and authority was given to Lord Cornbury by his commission as Governor, by and with the advice and consent of the Council, to erect, constitute and establish courts of judicature in the Province for the hearing and determining of all causes, according to law and equity. And similar authority was given all succeeding governors. Field, Provincial Courts of New Jersey, p. 41. In 1704 Lord Cornbury adopted an ordinance constituting a Supreme Court of Judicature (Ibid. p. 44), which is our Supreme Court today; and in 1705, he passed an ordinance by and with the advice and consent of the Council, for the erection and establishment of a High Court of Chancery in the Province of New Jersey. Ibid. p. 113. The pertinent parts are:

"An Ordinance

For the erecting and establishing a High Court of Chancery, in Her Majesty's province of Nova Caesaria, or New Jersey, in America; whereas, it is absolutely necessary that a Court of Chancery be established in this province, that the subject may find remedy in such matters and things as are properly cognizable in the said court, in which the common law, by reason of its strict rules, cannot give them release, His Excellency Edward Lord Viscount Cornbury, Captain General and Governor as aforesaid, by and with the advice and consent of Her Majesty's council for this province, * * * doth ordain and declare, and it is hereby ordained and declared, that His Excellency Edward Lord Cornbury, or the Governor or Lieutenant Governor for the time being of this province, and Her Majesty's council for this province, * * * or any three of them together, with the Governor or Lieutenant Governor, shall be, and are hereby empowered to be, the High Court of Chancery of this province, and, as such, to hear and determine all causes and suits in the said court, which, from time to time, shall come before them, in such manner or as near as may be according to the usage and custom of the High Court of Chancery in the kingdom of England; * * * it is hereby ordained, that there shall be commissionated and appointed, during pleasure, two masters of the said court, a Register, who shall also be Examiner and Purse bearer or seal bearer and sealer of writs, * * * two clerks and one seargant-at-arms and one messenger, and no other officer or officers whatsoever," etc. Appendix, 19 N. J. Eq. pages 578, 579; Field, Provincial Courts of New Jersey, p. 113.

This ordinance continued in force until Governor Franklin's administration; although Governor Hunter is said to have sat alone as Chancellor without the Council in 1718, claiming the right to do so, but no ordinance to that effect appears to have been adopted. Courts of New Jersey, Clevenger and Keasbey, p. 121. This was thought an undue exercise of authority, but met with the approbation of the King, and it appears that the Governor continued to act as Chancellor thereafter until 1770 (Ibid. p. 121) from which time the Governor was Chancellor alone, until the Constitution of 1844 created a separate Chancellor to be appointed by the Governor, and since then we have had but a single judge as Chancellor. Ibid. p. 121.

In that year (1770), by virtue of the powers and authority given him in his commission, and with the advice and consent of the Council, Governor Franklin adopted an ordinance in reference to the Court of Chancery, the pertinent parts of which are as follows:

"An Ordinance

For the better establishing a High Court of Chancery in the province of New Jersey, and for appointing the Chancellor or Judge thereof, by His Excellency William Franklin, Esq., Captain General, Governor, and Commanderin-Chief, in and over his Majesty's province of New Jersey and territories thereon depending, in America, and Vice Admiral of the same, &c, in council, this twenty-eighth day of March, in the tenth year of his Majesty's reign, annoque domini, one thousand seven hundred and seventy.

"Whereas, There always hath been a Court of Chancery held in the province of New Jersey, and the same at present requires regulation, His said Excellency, the Governor, by and with the advice and consent of his Majesty's council for the said province, and by virtue of the powers and authorities to him given by his Majesty's letters patent, under the Great Seal of Great Britain, bearing date the ninth day of September, in the second year of his present Majesty's reign, hath thought fit to ordain and declare, and by and with the advice and consent of his said Majesty's council, doth hereby ordain and declare, that his said Excellency William Franklin, Esq., is hereby constituted and appointed Chancellor and Judge of the High Court of Chancery or Equity in this colony, and impowered to hold the said court, and in the same to hear and determine all causes, from time to time, and in such manner as heretofore hath been usual, and, as nearly as may be, according to the usage and custom of the High Court of Chancery in that part of Great Britain called England. * * *

"And it is hereby further ordained and declared, that his said Excellency William Franklin, Esq., shall and may, and he is hereby authorized and impowered, from time to time * * * to nominate, constitute, appoint, and commissionate so many masters, clerks, examiners, registers, and other necessary officers as shall be needful to the holding the said court, and doing the business therein," etc. Appendix, 19 N. J. Eq. pages 580, 581, 582; Field, Provincial Courts of N. J. pp. 124, 125; Griffith's Register, N. J. p. 1183.

The ordinance of Governor Franklin is clearly intended to prescribe the only rule which should govern the Court of Chancery, and therefore repeals Governor Cornbury's ordinance. Said the Supreme Court in O'Neill v. Johnson, 99 N. J. Law, 317, 318, 123 A. 538: "Every statute must be considered according to what appears to have been the intention of the Legislature, and even though two statutes relating to the same subject be not, in terms, repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the earlier act." And the Court of Errors and Appeals in State v. Cortese, 104 N. J. Law, 312, at page 315, 140 A. 440, 442, cited the case of O'Neill v. Johnson, supra, with...