Richman v. Ligham

• Decision Date: 13 June 1956
• Docket Number: No. A--136,A--136
• Citation: 123 A.2d 372,22 N.J. 40
• Parties: Grover C. RICHMAN, Jr., Attorney General of New Jersey, Plaintiff-Respondent, v. Chester K. LIGHAM, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 40

22 N.J. 40

123 A.2d 372

Grover C. RICHMAN, Jr., Attorney General of New Jersey, Plaintiff-Respondent, v. Chester K. LIGHAM, Defendant-Appellant.

No. A--136.

Supreme Court of New Jersey.

Argued May 7, 1956.

Decided June 13, 1956.

Benjamin C. Van Tine, Long Branch, for appellant.

Harold Kolovsky, Asst. Atty. Gen., for respondent (Grover C. Richman, Jr., Atty. Gen., Attorney).

Walter H. Jones, Hackensack, amicus curiae for the Senate and General Assembly of the State.

The opinion of the court was delivered by

JACOBS, Justice.

The State Rent Control Act of 1953 was approved by the Governor on July 7, 1953 and was to terminate on December 31, 1954. See L.1953, c. 216; N.J.S. 2A:42--14 et seq., N.J.S.A. It created the State Rent Control Office within the Department of Conservation and Economic Development and provided that it shall be headed by a Director appointed by the Governor with the advice and consent of the Senate. The Director's term was fixed in section 2 to commence on appointment and confirmation and to expire on July 1, 1955. The defendant Chester K. Ligham was duly appointed as Director and entered upon his duties on or about December 21, 1953. Thereafter the statute was amended by L.1954, c. 260 which was approved by the Governor on December 22, 1954. The amendatory enactment provided that the act shall terminate at midnight June 30, 1956 except as otherwise provided in section 2; section 2 was amended to set forth that the Director's term shall expire on December 31, 1956 and that the purpose of the additional period of six months was to enable the Director to wind up the administration of State Rent Control.

After the passage of L.1954, c. 260 the defendant asserted that he was entitled to continue as Director until his term of office expired on December 31, 1956. The Attorney-General embraced a contrary view and filed a complaint in the Law Division seeking judgment (a) adjudging that the Director's term expired on July 1, 1955, and (b) ousting the defendant from the office of Director which he claimed to occupy. After answer was filed the Attorney-General moved for judgment on the pleadings (R.R. 4:12--3) and after full argument the motion was granted by the late Judge Smalley. A formal judgment granting the relief sought by the Attorney-General was entered by Judge Ewart on January 27, 1956 and on the same day the defendant filed his notice of appeal to the Appellate Division. In view of the important constitutional questions presented we certified the appeal on our own motion and have had the benefit of able briefs and argument by counsel for the parties and the Senate and General Assembly.

The Attorney-General's contention is that if L.1954, c. 260 contemplated extending the Director's term to December 31, 1956, it constituted an appointment of an executive or administrative officer by the Legislature in violation of Article IV, Section V, paragraph 5 of the Constitution of 1947. The contention in opposition is that while L.1954, c. 260 did contemplate extending the Director's term to December 31, 1956, such extension did not violate Article IV, Section V, paragraph 5 when properly construed in the light of the entire Constitution and particularly Article V, Section I, paragraph 12, Article V, Section IV, paragraph 1, and Article IV, Section VII, paragraph 9. The parties place reliance on the general principles of constitutional construction which were recently restated in Behnke v. New Jersey Highway Authority, 13 N.J. 14, 24, 97 A.2d 647 (1953). See also Fischer v. Twp. of Bedminster, 5 N.J. 534, 76 A.2d 673 (1950); John S. Westervelt's Sons v. Regency, Inc., 3 N.J. 472, 70 A.2d 767 (1950); State v. Murzda, 116 N.J.L. 219, 183 A. 305 (E. & A.1936). In the Behnke case, Justice Heher rightly noted that in interpreting our State Constitution the thing to be sought 'is the intent of the people in imposing the particular restraint' and that the document must be considered as a whole to ascertain its true meaning; and he quoted approvingly from the concurring opinion in Downes v. Bidwell, 182 U.S. 244, 312, 21 S.Ct. 770, 796, 45 L.Ed. 1088, 1116 (1901), where Justice White pointed out that 'the true rule of construction is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from the other powers granted by that instrument, so that the whole may be interpreted by the spirit which vivifies, and not by the letter which killeth.'

'Upon this point a page of history is worth a volume of logic.' Holmes, J. in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963, 983 (1921).

The changes wrought in our new Constitution, including those which relate to the appointing power, were the results of persistent efforts and the extensive teachings of history. In Colonial New Jersey the royal Governor appointed most officers and dominated the Legislature which consisted of the Governor, an appointed Council and an elected Assembly. The people generally distrusted the Governor and their struggle for rights was conducted mainly through the Assembly. When in 1776 they overthrew Great Britain's authority and hastily adopted their first constitution they paid but little heed to the doctrine of separation of powers and placed their trust mainly in their elected legislative representatives who in turn designated the Governor. The power to appoint public officers was vested in the representatives rather than in the Governor who was the supreme executive in name only. See Griffith, Eumenes--Errors and Omissions of the Constitution of New Jersey 130 (1799). When the Federal Constitution was later adopted it wisely paid much more attention to the doctrine of separation of powers and expressly provided for the important presidential power of appointment as an executive function. See Springer v. Government of Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Cf. Note, 'Power of Appointment to Public Office Under the Federal Constitution,' 42 Harv.L.Rev. 426 (1928); Corwin, The President--Office and Powers (3d ed. 1948), 83.

Between 1776 and New Jersey's Constitutional Convention of 1844, appointments were made by the legislative branch and were accompanied by many abuses; one of the most extended debates during the 1844 Convention dealt rather heatedly with the matter. See Proceedings, New Jersey Const.Conv.1844, p. 348 et seq. Mr. Field, a former Attorney-General and legislator, favored giving to the Governor the appointing power which he described as 'the Great Executive power' (cf. Padover, Complete Jefferson 289 (1945)), and he detailed many of the adverse public incidents and effects of legislative appointments. Id. at 357. See Bebout, The Making of the New Jersey Constitution lvi (1945). On the other hand, Dr. Ewing, a former member of the Legislature, favored legislative appointments as being closer to the people. Ultimately the matter was compromised and the Constitution distributed the appointing power; the Legislature was authorized to appoint certain designated officers in 'joint meeting'; the Governor was authorized to appoint other designated officers, generally with the advice and consent of the Senate; and Article VII, Section II, paragraph 8 provided that 'All other officers, whose appointments are not otherwise provided for by law, shall be nominated by the governor and appointed by him with the advice and consent of the senate.' Under this clause the Legislature continued to create new offices and designate their incumbents; in Ross v. Board of Chosen Freeholders of Essex, 69 N.J.L. 291, 55 A. 310 (E. & A.1903), the court of last resort sustained such legislative appointments as against the contention that they violated the Governor's inherent executive power. Courts throughout the country had sharply divided on the issue, but their determinations rested generally on local constitutional provisions which had no counterparts in New Jersey's Constitution. See Mechem, 'The Power to Appoint to Office: Its Location and Limits,' 1 Mich.L.Rev. 531 (1903); Dawley, 'The Governors' Constitutional Powers of Appointment and Removal,' 22 Minn.L.Rev. 451 (1938). Cf. Tilton, 'The Appointive Power--Tenure, Removal and Confirmation of Officers,' 2 Record of Proceedings, Const.Conv.1947, p. 1383 et seq. (1951). See also Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941). In his summary of the cases (made shortly after the turn of the century) Professor Mechem, supra, expressed the view that although the power of appointment 'as a matter of public policy ought not to be regarded as a legislative function' it was not, under most of the decisions, 'exclusively or necessarily an executive function.'

In the Ross case, supra (69 N.J.L. 291, 55 A. 312), Justice Dixon, in sustaining legislation which empowered Supreme Court justices to appoint park commissioners, pointed out that although under the English system the king might be said to be the depositary of the appointing power, under our system no single branch of government could be deemed the king's successor in this regard; and he suggested that an examination of our constitutional and legislative history would readily dissipate the notion that the appointing power was the peculiar property of any of the three departments of government. He referred specifically to Article VII, Section II, paragraph 8 as 'unmistakable recognition of the authority of the lawmaking department to provide for the appointment of all officers whose appointment is not definitely regulated by the Constitution itself'; and although he was not dealing with the right of the Legislature to make an appointment itself, as distinguished from its designation of a proper appointing authority, the tenor of his opinion sufficiently evidenced his...