Johnson v. State

• Decision Date: 16 July 1897
• Citation: 37 A. 949,59 N.J.L. 535
• Parties: JOHNSON v. STATE.
• Court: New Jersey Supreme Court

37 A. 949

59 N.J.L. 535

JOHNSON

v. STATE.

Court of Errors and Appeals of New Jersey.

July 16, 1897.

Error to supreme court.

Jacob S. Johnson was convicted of murder in the first degree. From a judgment of the supreme court (35 At!. 787) affirming the conviction, he brings error. Affirmed.

Steele & Meehan, for plaintiff in error.

Nelson Y. Dungan and James J. Bergen, for the State.

DEPUE, J. The prosecutor was indicted for murder, for causing the death of Sarah Ann Rogers. The indictment was found in the court of oyer and terminer of the county of Somerset at the term of September, 1895. On the traverse of this indictment the prosecutor was tried before said court, and convicted of murder in the first degree, and sentenced to death. The writ of error places under review the following assignments of error:

First, that the court before which the defendant below was tried and convicted had no legal existence; having been abolished by the act of 1895, commonly called the "County Court Act." By an act of the legislature passed June 13, 1895, the inferior courts of common pleas, the courts of oyer and terminer and courts of quarter sessions of the several counties of the state were abolished, and a county court established in each of the counties of the state, to be known and designated as the "[name of county] County Court," with the same jurisdiction, civil and criminal, as the courts which were abolished previously possessed. The act provided for one judge for each county, to be elected by the qualified voters of the county. It further provided that any county court might be held by any justice of the supreme court, or by any judge of a county court, or by such justice and judge sitting together, with a proviso that a justice of the supreme court should preside in the trial of indictments for crimes punishable by death. P. L. 1895, p. 807. Under the judicial system in existence prior to the act of 1895, a judge of the court of common pleas, as such a judge, sat as an associate in the oyer and terminer, and as a judge of the court of common pleas he sat in the quarter sessions. These judges were appointed and commissioned as judges of the court of common pleas. The appointment of a judge as judge of the court of oyer and terminer or court of quarter sessions was a thing unknown. The judges of the court of common pleas sat in the oyer as judges of the court of common pleas, just as the justice of the supreme court presided in that court,— not as a judge of the oyer and terminer, but in virtue of his commission as a justice of the supreme court. By the constitution as amended in 1875 the prerogative of appointing the judges of the court of common pleas was conferred upon the governor, with the advice and consent of the senate. The act of 1895 did not create a new court with a new jurisdiction. It simply created a court by a new name, and invested it with all the jurisdiction and functions exercised by the old court, and took from the executive the power to appoint its judges, and delegated it to a popular election. The power of the legislature to alter or abolish the court of common pleas as the public good may require is indisputable. Kenny v. Hudspeth (N. J. Sup.) 36 Atl. 662; same case (in this court) 37 Atl. 67. This power has been vindicated to the extent of permitting the legislature to vacate the commissions of those judges who were in office when the legislature intervened. But the capacity of the legislature to alter or abolish is not involved at this time. A court consists in its jurisdiction and functions, and not its title or name. The legislature in the act of 1895 carefully preserved the jurisdiction and functions of the old court in everything which is the essential quality of a court, gave the tribunal a new name, and transferred the selection of the incumbents of the judicial office from the executive to a popular election. The court of common pleas, as a court, and all its concomitants, such as the right of its judges to sit in the oyer and sessions, were retained by the act of 1895 precisely as they existed before. All that was done was a change of name and the mode of selecting the judges who were to officiate in the court. The constitution having conferred upon the governor the prerogative of appointing, with the advice and consent of the senate, these judicial officers, it was not competent for the legislature by a subterfuge to divert this prerogative right to another source. When the constitution prescribes the manner in which an officer shall be appointed or elected, the constitutional prescription is exclusive, and it is not competent for the legislature to provide any other mode of obtaining or holding the office. State v. Wrightson, 56 N. J. Law, 127, 141, 28 Atl. 56. That is precisely what the act of 1895 purported to accomplish,— to leave these courts with a change of name, and the executive shorn of his prerogative of appointment. It was on this ground that the supreme court in Schalk v. Wrightson, 58 N. J. Law, 50, 32 Atl. 820, decided that the act of 1895 was unconstitutional and void. That decision is approved by this court. It is contended by counsel that, although the act of 1895 is unconstitutional with respect to the judges of the court of common pleas, it may be sustained with respect to the judges of the oyer and terminer and court of quarter sessions; these courts being without any constitutional protection or regulation, and the selection of the judges being wholly a matter of legislative discretion. The theory on which the argument proceeded was that the statute consisted of two parts, one of which, being unconstitutional, might be rejected, and the other retained. It is undoubtedly elementary law that the same statute may be in part constitutional and in part unconstitutional, and, if the parts are wholly independent of each other, that which is constitutional may stand, and that which is unconstitutional will be rejected; but if the different parts of the act are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent upon each other must fail. As was said by Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S. 270, 304, 5 Sup. Ct 903, 931: "it is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void because unconstitutional; but these are cases where the parts are so distinctly separate that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one which they may never have been willing, by itself, to enact." Spraigue v....