Winberry v. Salisbury

• Citation: 5 N.J. 240,74 A.2d 406
• Decision Date: 27 June 1950
• Docket Number: No. A--150,A--150
• Parties: WINBERRY v. SALISBURY.
• Court: United States State Supreme Court (New Jersey)

Page 240

5 N.J. 240

74 A.2d 406

WINBERRY v. SALISBURY.

No. A--150.

Supreme Court of New Jersey.

Argued June 19, 1950.

Decided June 27, 1950.

Frank G. Schlosser, Jersey City, argued the cause for the appellant (O'Regan & Schlosser, Jersey City, attorneys).

Theodore D. Parsons, Attorney General, argued the cause for the respondent (Warren Dixon, Jr., Deputy Attorney General, and Joseph A. Murphy, Assistant Deputy Attorney General, on the brief).

The opinion of the court was delivered by

VANDERBILT, C.J.

The plaintiff brought suit in the Superior Court to expunge an alleged libel on him from a report of a grand jury on file with the county clerk of Middlesex County. The defendant Salisbury moved for summary judgment on the ground, among others, that the complaint did not state a cause of action and his motion was granted on May 25, 1949. On June 11th the trial court of its own motion modified the order for judgment by relieving the plaintiff from the payment of costs, this order being consented to in writing by the attorneys for the respective parties.

On July 26th the plaintiff served a notice of appeal, which was acknowledged 'without prejudice to the claim that the same was out of time.' The defendant thereupon moved in the Appellate Division of the Superior Court to dismiss the appeal. That court granted his motion, holding that by the phrase 'subject to law' in Article VI, Section II, paragraph 3 of the Constitution of 1947, N.J.S.A., which directs that 'The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts'. 'The Legislature is given the final word in matters or procedure; it may expressly or by implication nullify or modify a procedural rule promulgated by the Supreme Court, or it may take the initiative in a matter of procedure when it deems that course wise.' 5 N.J.Super. 30, 34, 68 A.2d 332, 334 (App.Div.1949). In the absence of legislative action the Appellate Division held that Rule 1:2--5(b) and Rule 4:2--5, limiting the time for an appeal from a final judgment of the Trial Division of the Superior Court to 45 days, prevailed over R.S. 2:27--356, N.J.S.A., which permitted an appeal within one year after judgment rendered. Thus we have raised the meaning of the phrase 'subject to law,' and it is urged on us that the question should be promptly decided in view of the recent passage of Chapter 171 of the Laws of 1950, R.S. 1:11--1 to 5, N.J.S.A., authorizing an Advisory Committee on the Revision of Statutes to prepare a revision of Title 2, Administration of Civil and Criminal Justice, and Title 3, Administration of Estates, of the Revised Statutes, and related acts.

The phrase 'subject to law' is not only ambiguous, but elliptical. No word in the law has more varied meanings than the term 'law' itself. Nor is the phrase 'subject to' crystal clear, for the phrase implies a limitation rather than a grant of power. It is argued by the plaintiff that 'subject to law' means subject to statute law or legislation. If this is what the Constitutional Convention intended, it would have been easy for it to say so. We must take the phrase as we find it and endeavor to ascertain its meaning in the light of the entire Constitution and of the intent of the people in adopting it. There can be no doubt in the mind of anyone familiar with the work of the Constitutional Convention or with the ensuing election at which the Constitution was adopted by the people that, along with the desire to strengthen the powers of the Governor and to amplify the powers of the Legislature, there was a clear intent to establish a simple but fully integrated system of courts and to give to the judiciary the power and thus to impose on them the responsibility for seeing that the judicial system functioned effectively in the public interest. Indeed, in the minds of many, if not a majority, of our citizens this was the primary reason for their desire for a new constitution.

If 'subject to law' were to be interpreted to mean subject to legislation, it would necessarily follow that once the Legislature had passed a statute in conflict with a rule of court, the rule-making power of the Supreme Court would be Functus officio, for it would be intolerable to hold, as has been suggested to us, that after the Legislature has passed an act modifying a rule of court, the Supreme Court might in turn adopt a new rule overriding the statute, and so on Ad nauseam. Such an unseemly and possibly continuous conflict between these two departments of the state government could never have been contemplated by the people. And yet if 'subject to law' means subject to legislation, any other construction of the rule-making power would be in conflict with the fundamental rule of constitutional construction that unless the context clearly requires otherwise, a constitutional grant of authority is to be interpreted as a continuing power. As one studies the Judicial Article of the Constitution and its carefully designed provisions for an efficient judicial organization with unusual powers of effective administration, it is evident that the people of this State thought of the rule-making power in the Supreme Court as a continuous process. In this connection it is significant to note that neither the Constitution of 1776 nor that of 1844 contained any provisions whatsoever as to rule-making, admission to the practice of law, the discipline of the bar, an administrative head of the courts, or the assignment of judges. All of these powers are necessarily of a continuing nature if the judges are to be held responsible for the functioning of the courts. It is inconceivable that the people granted continuing power to the courts in all these respects but withheld it with reference to rule-making, which is quite as essential to the operation of an integrated judicial establishment as are any of the other powers.

Article VI, Section II, paragraph 3 of the new Constitution not only gives the Supreme Court the rule-making power, but it imposes on the Supreme Court an active responsibility for making such rules--'The Supreme Court Shall make rules.' If there were any doubt as to the continuous nature of the rule-making power, such doubt would be resolved by this imposition of the positive obligation on the Supreme Court to make rules for all the courts.

An analysis of all of the pertinent provisions of the Constitution serves to convince us that the phrase 'subject to law' cannot be taken to mean subject to legislation. In the first place, by Article XI, Section IV, paragraph 5 of the Constitution 'The Supreme Court shall make rules governing the administration and practice and procedure of the County Courts' this provision is clear and unambiguous; the rule-making power of the Supreme Court with respect to the county courts is absolute and unrestricted. It does not require an active imagination to anticipate the chaotic situation which would prevail in every court house in the State with the Supreme Court promulgating the rules for the county courts and the Legislature dictating the practice and procedure of the Superior Court. One of the objectives of the people in adopting the Constitution was to provide for uniformity as well as simplification and flexibility in the work of the courts. This objective would be frustrated by any such dual exercise of rule-making power. Manifestly no such construction of the phrase 'subject to law' should be accepted because of the unfortunate results which would inevitably flow therefrom unless no other rational meaning can be found for the phrase. Nor can it be said that the grant to the Supreme Court of the rule-making power with respect to the county courts was a constitutional accident. Article XI, Section IV, paragraph 5 of the Constitution was reported to the Convention by the Judiciary Committee as part of its report of the Judicial Article (I Convention Proceedings Record 146), and though it ultimately found its way into Article XI (Schedule) it was passed by the Convention on the same day as the Judicial Article and in the original form in which it was presented to the Constitutional Convention by the Judiciary Committee (I Convention Proceedings Record 793).

In the second place the power of the Supreme Court with respect to the practice on proceedings in lieu of prerogative writs is likewise unrestricted; by Article VI, Section V, paragraph 4 of the Constitution 'Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court * * *.' But there are still other provisions in the Judicial Article which would give the Legislature power with respect to the courts if 'subject to law' means subject to legislation that clearly are inconsistent with the intention of creating an integrated judicial system. Thus by Article VI, Section III, paragraph 1, the judges of the Superior Court are empowered to 'exercise the powers of the court subject to rules of the Supreme Court.' Could it conceivably have been intended by the people that the Legislature might, through the rule-making power, affect the power of the judges of the Superior Court? Again, by paragraph 3 of the same Section it is provided that each division of the Superior Court 'shall have such Parts, consist of such number of Judges, and hear such causes, as may be provided by rules of the Supreme Court.' Is it consistent with all of the other provisions of the Judicial Article of the Constitution, designed to create an integrated judicial establishment, that the Legislature should be construed to have the power to determine the number of parts of each division of the Superior Court, the number of judges in each part, and the causes that each division or part should hear? By paragraph 4 of the same Section it is laid down: 'Subject to rules...