State v. Hudspeth
| Decision Date | 04 November 1896 |
| Citation | 36 A. 662,59 N.J.L. 320 |
| Parties | STATE ex rel. KENNY v. HUDSPETH. |
| Court | New Jersey Supreme Court |
Application by the state, on the relation of John Kenny, against Robert S. Hudspeth, for mandamus, upon which a rule to show cause issued. Rule discharged.
Argued November term, 1896, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.
Allan L. McDermott and Chauncey H. Beasley, for relator.
P. M. Voorhees and Frank Bergen, opposed.
The relator was commissioned a judge of the inferior court of common pleas of Hudson county, on the 1st day of April, 1892, for the full term of five years. He duly qualified, and entered upon the duties of his office. His term of office in virtue of his appointment would have been continued until the 1st day of April, 1897. By an act entitled "An act to reduce the number of judges of the inferior court of common pleas, courts of oyer and terminer and general jail delivery, orphans' courts, courts of general quarter sessions of the peace and special sessions in. the several counties of this state, and to fix the salaries and provide for the appointment of the judges of said courts," approved March 26, 1896, it was provided that the law or president judges then in office should continue in office for the terms for which they were respectively appointed, and that the terms of office of all other judges of the said courts should end on the 31st of March, 1896. The relator is one of that class of judges whose term of office was terminated within the purview of the act. The validity of this act is brought in question by this suit. The appointment to a public office is not a contract the impairment of the obligation of which is forbidden by the federal constitution. Butler v. Pennsylvania, 10 How. 402. An appointment to office is neither a contract, nor is the office or its prospective emoluments the property of the incumbent Upon general principles of law, the office itself and its emoluments are within the control of the government; and the legislative branch of the government, whenever in its judgment public policy requires it, may declare the office vacant, or transfer its duties to another officer, although the effect may be to remove the officer before the expiration of the term for which he was appointed. City of Hoboken v. Gear, 27 N. J. Law, 265; Conner v. Mayor, 5 N. Y. 285; People v. Warner, 7 Hill, 81; Id., 2 Denio, 272; Smith v. Mayor, etc., 37 N. Y. 518; Taft v. Adams, 3 Gray, 127; Throop, Pub. Off. § 19; Mechem, Pub. Off. $§ 463, 464, 465; 8 Eng. Ruling Cas. 266, and cases cited. If there be any limitation upon the power of the legislative department of the government over the tenure of public offices, it must be found in a constitutional inhibition, arising from the fact that, by constitutional prescription, the tenure and term of office are put beyond legislative control. Section 1 of article 6 of the constitution, under the title of "Judiciary," ordains that "the judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore; a court for the trial of impeachments; a court of chancery; a prerogative court; a supreme court; circuit courts, and such inferior courts as now exist, and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish, as the public good shall require." By this enumeration the courts mentioned became constitutional courts; that is, courts that could not be altered or abolished except by the alteration of the instrument that created them. The inferior courts of common pleas are not mentioned in this enumeration of the courts in which the judicial power of the state was vested. These courts were always regarded as Inferior courts. They are so styled in the first constitution, and in our present constitution, and in the statutes and laws of the state. They are comprehended in this article of the constitution under the designation of inferior courts that existed at the time the constitution was adopted. With respect to courts of this class, the constitution, by an affirmative grant of power, vested the legislative department with the capacity to alter or abolish these judicial tribunals, as, in the judgment of the legislature, the public good might require; thus subjecting these courts to such legislative control as the legislative department has by the general law over the tenure, emoluments, and terms of offices, where these incidents are not fixed by constitutional prescriptions.
To overcome and set aside the force and effect of the express grant of power to the legislature over these courts, the counsel of the relator invoke section 6 of article 6 and section 2 of article 7 of the constitution. The first of these sections provides (1) that Section 2 of article 7 (as amended in 1875) provides (1) On those constitutional provisions, the relator's counsel contend that the legislature cannot alter this court so that one judge shall not be appointed every year, nor so that the commission of a judge shall not bear date and take effect on the 1st day of April in each successive year; nor so that the judges appointed shall not hold their office for five years. These contentions are within the terms of the two constitutional provisions on which they rest. But it will be observed that, if these two sections are to have a dominating effect upon the subject, there would always be five judges of this court in office by constitutional mandate, and the power granted to the legislature by section 1 of article 6 would become nugatory. In that situation, there being always five judges in office with the constitutional mandate to keep up the number by annual appointments for the prescribed terms, these courts could never be abolished by the legislature. In that view, the framers of the constitution, in one article, granted to the legislature power to abolish these courts, and, by other articles, so fixed the tenure of the judges that the power to abolish was abrogated. I am unwilling to concur in a construction that leads to such a result. The power is conferred upon or reserved to the legislative department of the government. It...
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