Lloyd v. Vermeulen

• Decision Date: 31 May 1956
• Docket Number: No. A--461,A--461
• Citation: 123 A.2d 21,40 N.J.Super. 301
• Parties: Frank T. LLOYD, Jr., Plaintiff-Appellant, v. Abram M. VERMEULEN, Director of the Division of Budget and Accounting andState Comptroller, Department of the Treasury of the State of New Jersey,Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 301

40 N.J.Super. 301

123 A.2d 21

Frank T. LLOYD, Jr., Plaintiff-Appellant, v. Abram M. VERMEULEN, Director of the Division of Budget and Accounting andState Comptroller, Department of the Treasury of the State of New Jersey,Defendant-Respondent.

No. A--461.

Superior Court of New Jersey Appellate Division.

Argued May 28, 1956.

Decided May 31, 1956.

Leon S. Milmed, Newark, for plaintiff-appellant (Milmed & Rosen, Newark, attorneys).

David D. Furman, Trenton, for defendant-respondent (Grover C. Richman, Jr., Atty. Gen.).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This action in lieu of prerogative writ was brought in the Superior Court, Law Division, to compel the defendant to restore plaintiff's name to the payroll of the State as a Judge of the Superior Court. His name had been removed from the payroll on January 17, 1956. Summary judgment was granted in defendant's favor below, and plaintiff appeals to this court.

There is no controversy as to the facts. At the general election held November 4, 1947, the voters of this State adopted a new Constitution, containing a Judicial Article which for most purposes became effective September 15, 1948 (Art. 11, Sec. 4, Par. 14 of that Constitution).

On December 15, 1947, the Governor nominated plaintiff as a Judge of the Circuit Court 'for the term prescribed by law' and on the same day the Senate confirmed the nomination. The term prescribed for that office by the applicable statute was seven years (N.J.S.A. 2:5--4); however the new Constitution, by abolishing the Circuit Courts as of September 15, 1948 (Art. 11, Sec. 4, Par. 3), necessarily limited the office itself to a period of ten months after the appointment.

Also on December 15, 1947 the Governor nominated a Chief Justice and six Associate Justices of the new Supreme Court (Art. 11, Sec. 4, Pars. 1, 14); and on the same day the Senate confirmed these nominations.

Some attention perhaps should be given to the precise sequence of these matters--that is, of the nominations, the confirmations to office and the issuance of the commissions of the Chief Justice, the six Associate Justices and the plaintiff, respectively. As plaintiff agreed at the oral argument before us, the nominations of the seven Justices and the plaintiff were all submitted to the Senate on December 15, 1947; later the same day, and after the eight nominations had been so submitted, they were confirmed by the Senate; thereafter, and following all these confirmations, commissions were issued to these Justices and the plaintiff (see Art. 5, Sec. 1, Par. 12, fourth sentence, of the Constitution).

In fact two commissions were then issued to the plaintiff, both dated December 15, 1947, one as a Judge of the Circuit Court and the other as a Judge of the Superior Court. According to the terms of the latter instrument, he was commissioned to hold office as a Judge of the Superior Court

'for and during legal time prescribed in Paragraph 3, Section VI, Article VI of the State Constitution adopted November 4, 1947.'

It was indicated on the oral argument that under date of December 15, 1947 commissions were issued, not only to the members of the new Supreme Court, but also to all persons holding office on November 4, 1947, whom the Attorney General concedes to have been constituted Judges of the Superior Court by Art. 11, Sec. 4, Par. 1, second sentence, of the 1947 Constitution; however these commissions, it was said, refer to this paragraph of the Constitution, and not (as in the case of plaintiff's commission) to Art. 6, Sec. 6, Par. 3. We find nothing in the record dealing with the terms of any commissions other than those issued to the plaintiff, and hence will ignore the point.

On June 28, 1948 the Governor nominated the plaintiff as a Judge of the Superior Court 'for the term prescribed' by Art. 6, Sec. 6, Par. 3 (again no reference was made to Art. 11, Sec. 4, Par. 1); and on that date the Senate confirmed this nomination for the term thereby prescribed. Thereupon another commission was issued to him as a Superior Court Judge, authorizing him to hold office under Art. 6, Sec. 6, Par. 3.

Under date of September 15, 1948 a third commission was issued to plaintiff as a Superior Court Judge to hold office 'for and during legal time.' It was said by plaintiff's counsel on the argument that under that date like commissions were issued to all Judges of the Superior Court.

In the above recital of the facts, we have not adverted to the oaths of office taken by the plaintiff as follows: on December 18, 1947 as a Judge of the Circuit Court; and on September 13, 1948 as a Judge of the Superior Court. We find it unnecessary (as will appear herein) to determine whether his failure to take an oath of office as a Circuit Court Judge on December 15, 1947 prevents him from 'then being' a Circuit Court Judge within the contemplation of the first sentence of Art. 11, Sec. 4, Par. 1 of the Constitution. Cf. State v. Goodfellow, 111 N.J.L. 604, 606, 169 A. 279 (E. & A.1933).

Plaintiff bases his claim to tenure on the following argument. He maintains that his appointment to the Circuit Court on December 15, 1947 brought him within the class described in the first sentence of Art. 11, Sec. 4, Par. 1, as 'the persons Then being the * * * Circuit Court Judges.' For he contends that the word 'then' has reference to December 15, 1947, since that was the day on which the Justices of the new Supreme Court were nominated and their nominations confirmed. Furthermore he claims that as a member of the class stated, he was constituted, by operation of the second sentence of that paragraph, a Judge of the Superior Court on the same day.

At this point, plaintiff's argument becomes whole claim to tenure (as indeed he must) though he became a Judge of the Superior Court on December 15, 1947, nevertheless he could not continue in that office after September 15, 1948 because Art. 11, Sec. 4, Par. 1, first clause of the third sentence, does not allow him to 'hold office'; that in order to continue therein, a reappointment to that court was necessary. This reappointment, made June 28, 1948 as above stated, allegedly gives him tenure under Art. 11, Sec. 4, Par. 1, second clause of the third sentence.

The argument is without any merit. Under the constitutional scheme a Judge of the Superior Court may receive tenure of office either as provided in Art. 6, Sec. 6, Par. 3, first sentence, or as provided in Art. 11, Sec. 4, Par. 1, the last clause of the third sentence. Plaintiff rests his whole claim to tenure (as indeed he must on the latter paragraph, which reads:

'Subsequent to the adoption of this Constitution the Governor shall nominate and appoint, with the advice and consent of the Senate, a Chief Justice and six Associate Justices of the new Supreme Court from among the persons then being the Chancellor, the Chief Justice and Associate Justices of the old Supreme Court, the Vice Chancellors and Circuit Court Judges. The remaining judicial officers enumerated and such Judges of the Court of Errors and Appeals as have been admitted to the practice of law in this State for at least ten years, and are in office on the adoption of the Constitution, shall constitute the Judges of the Superior Court. The Justices of the new Supreme Court and the Judges of the Superior Court so designated shall hold office each for the period of his term which remains unexpired at the time the Constitution is adopted; and if...