Winberry v. Salisbury

Case, J.

(concurring); I concur in the finding that the initial authority to make rules lay with the court, that the appeal from the judgment of May 25, 1949, was not taken *256 within the time fixed by rule; that the modification effected by the order of June 11, 1949, was not only to the plaintiff’s benefit but was consented to by him, and was not appealable; that the appeal was therefore properly dismissed; and that the judgment below should be affirmed. That, without more, disposes of the litigation.

However, the court has taken this opportunity to consider at length the constitutional authority of the court to make rules, and as I do not agree in an important respect with the majority opinion I am constrained to state my views and my reasons. The questions are—Do the words “subject to law,” as used in Article YI, Section II, paragraph 3 of the 1941 Constitution mean anything? And if they mean something, what do they mean?

This is the provision: “The Supreme Court shall make rulés governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.” That sentence will repay study. Note that two kinds of rules are mentioned, and that the words “subject to law” are carefully placed to bear upon rules concerning practice and procedure and not to bear upon rules governing the administration of the courts. That, having in mind the history of rule-making, is what one would expect, ■ because the courts of law have traditionally made rules for their own government and just as traditionally have acknowledged, except in the one respect which I shall presently mention, the superior authority of the Legislature in ordaining the practice and procedure in our ’courts. And that dissipates much of what has been said would be confusion if the words “subject to law” are construed to mean “subject to statutory law.” The number of parts of each division of the Superior Court, the number of judges in each part, the causes that each part shall hear—-these are all matters of court administration and therefore are within the express constitutional provision that the Supreme Court shall make rules governing the administration of all courts—note that, all courts—in the State without being “subject to law.” I further suggest that Article *257 VI, Section III, paragraphs 3 and 4 are a constitutional direction that the Superior Court shall be • divided into an Appellate Division, a Law Division and a Chancery Division and that the Law Division and the Chancery Division shall each exercise the powers and functions of the other when the ends of justice so require and that legal and equitable relief shall be granted in any cause so that matters in controversy between the parties may be completely determined; and that the reference in each of those paragraphs to the rules of the Supreme Court has nothing to do with the changes in the court system thus established but only to the administration of the courts in the execution of those functions. Thus did the framers of the Constitution anticipate the present controversy and wisely distinguish the two divisions in the rules, one for the administration of the courts within the unfettered control of the Supreme Court, and the other for pleading and practice subject to law.

The words “subject to law,” or their equivalent, were too persistent in their presence through the several constitutional drafts, and their change of relative position has too much pertinency, to permit of the suggestion that they were without definite design.

In 1942, a Joint Legislative Committee, constituted under legislative authority, proposed what is known as the 1942 draft. That was the parent of the series of drafts which culminated in the accomplished fact and is illuminative of the Constitution as finally adopted.

Article V, Section II, paragraph 3 of the 1942 draft provided:—“The Supreme Court shall make rules as to the administration of all the courts, and, subject to law, as to pleading, practice and evidence in all the courts.” That, except as to evidence, is in effect a counterpart of the provision under discussion. When the 1942 draft, molded into what may be termed the 1944 draft, was submitted to the people for vote the provision was as follows:—“The Supreme Court shall make rules governing the administration of all of the courts in this State. It shall have power, also, to make rules as to *258 pleading, practice and evidence, which may be applicable to all of the courts of this State and which shall have the force of law unless changed or abrogated by law.” Here, too, the power of the court to make rules for the administration of itself and of the other courts was absolute, while the power to make rules as to pleading and practice—as well as evidence—was conditional. This distinction is important, because, in the first place, it followed the traditional conception and so conformed to expectation, and second, it used words which demonstrated, without room for serious dispute, that the “law” which was referred to was general statutory law— what else would so fully and so satisfactorily meet the condition, “unless changed or abrogated by law?”

In the summer of 194-7 the Constitutional Convention assembled in New Brunswick and in approaching its work subdivided into committees, of which one of the most important, holding in its membership some of the ablest legal minds in the State, was the Committee on the Judicial Article. That committee, in its tentative draft of the Judicial Article, widely circulated among our people, proposed this version of the rule-making power:—“The Supreme Court shall, subject to law, make rules governing the administration and the practice and procedure in all the courts of the State.” It will at once be observed that this draft did what none of the earlier ones had attempted—it directed that not only the court’s power to make rules as to practice and procedure should be “subject to law” but also that the power to make rules governing the administration of the courts should be so subject; and I suggest that, by fair interpretation, the words “subject to law,” as here used, are synonymous with the phrase “which shall have the force of law unless changed or abrogated by law” and were substituted as shorter, smoother and in better grammatical form; such a substitution as one would make in editing his own composition.

In the final form—the one adopted by the Convention and submitted to and accepted by the people, the words “subject to law” were carefully preserved, but thejr were transferred *259 so that they did not apply to the power of the court for self-administration but did apply to the control of practice and procedure. Beyond peradventure the Constitution means that the court in making rules has a certain field in which it shall not be “subject to law,” and that it has another field in which it acts “subject to law.”

Can it be said with any show of reason that the phrase “subject to law” just happened, or that it came into existence and was changed and re-established, without a very definite-notion as to what the words meant ? I think not.

Well, then, what do they mean?

The Attorney General makes two suggestions. The first is that “law” as here used means the fundamental or organic law—the Constitution. But his own excellent judgment causes him to veer from this view because he concedes, as necessarily he must concede, that all rules—he might add, every power of the court, not only, but of the executive and the Legislature—is subject to the Constitutions Of State and Nation. And the Constitution does not do the silly thing of limiting its various and multiple delegations of authority by adding here and there, “subject to law.” Therefore, the second suggestion, that perhaps the phrase “subject to law” means subject to “substantive” law; that the court may promulgate a rule of practice which causes an apparent or real conflict with a. statute enacting substantive law and that in such an event the rule of court would fall because it conflicts with a substantive statute. But he comes back to the theme that the Supreme Coirrt is supreme in its sphere of practice and procedure because the Constitution so provides; and this I suggest begs the question. I believe it is not now seriously considered that the word “law” means constitutional law; and once it is conceded that it means “statutory law” in any of its phases the bars are down, because if it means statutory law in any sense it means statutory law in all senses. The Constitution makes no limitation either expressly or by implication.

*260 There'can be no doubt about what the majority of the committee on the Judicial Article meant in proposing the paragraph. These are the words of their report on paragraph 3 of Section II signed by all of them, including men of such eminence in the legal world as a former Chief Justice of the Supreme Court and a present member of our Appellate Division:—

“Responsibility for administration, practice and procedure in all the courts of the State is vested in the Supreme Court, but the legislature may revise or repeal the rules of practice and procedure, or initiate new provisions on the subject. * *

In words as plain as could be used the committee stated that “subject to law” meant “subject to statutory law.”

The very next paragraph of the Constitution, Article VI, Section III, paragraph 1, provides that “The Superior Court shall consist of such number of judges as may be authorized by law, but not less than twenty four * * That un-

doubtedly means statutory law. So as to the next section, Article VI, Section IV, paragraph 1:—“There shall be a county court in each county which shall have all the jurisdiction * * * and such other jurisdiction consistent with this Constitution as may be conferred by law.” Likewise as to paragraph 3, next following:—“There shall be a judge of each county court and such additional judges as shall be provided by law * * So, too, in Section I of Article VI, twelve or fifteen lines above the paragraph on rules, is this provision:—-“The inferior courts and their jurisdiction may from time to.time be established, altered or abolished by law.” And the word, with the same significance, is used in many other instances throughout the document. It is quite out of character that a group of legal experts, intent upon drawing the most notable document of their lives, would use the same word in a whole series of related paragraphs and intend in one of those instances, in the midst of all the others, to give a very special and limited meaning without adding some adjectival distinction.

*261 The one exception, which I mentioned, to the recognition by the former Supreme Court of the superior authority of the Legislature to regulate practice and procedure was in the matter of the prerogative writs, and the exception there was a modified one. The court vigorously maintained its exclusive jurisdiction over those writs, without diminution or alteration by the Legislature, East Orange v. Hussey, 70 N. J. L. 244 (E. & A. 1903), and yet even there the power of the Legislature to regulate remedies and to enact statutes of repose by which a reasonable time was prescribed within which suits must be instituted was freely conceded. Traphagen v. Township of West Hoboken, 39 N. J. L. 232 (Sup. Ct. 1877); affirmed, 40 N. J. L. 193 (E. & A. 1878). The determination of what was a reasonable time was reserved by the court to itself, but the court uniformly approved of the statutory period in the cases brought before it. Red Oaks, Inc., v. Dorez, Inc., 117 N. J. L. 280 (Sup. Ct. 1936); Owen v. Atlantic City, 125 N. J. L. 145 (Sup. Ct. 1940); Peckitt v. Board of Adjustment of Spring Lake, 136 N. J. L. 405 (Sup. Ct. 1947). I find nothing in Article VI, Section Y, paragraph 4 of the 1947 Constitution which is out of line with .this status of the former prerogative writs or with the view I have earlier expressed. The last cited constitutional provision is that prerogative waits are superseded and, in lieri 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. It is not to be expected that the framers of the Constitution. having in Article YI, Section II, paragraph 3, given absolute power to the court as to rules relating to administration and limited power over pleading and practice, should feel constrained to repeat those provisions each time they made subsequent reference to the subject of rules.

There is nothing novel in the proposition expressed by the report of the Committee on the Judicial Article that responsibility for making rules should be initially vested in the Supreme Court, and that the Legislature might revise or repeal the rules of practice and procedure or initiate new pro *262 visions on the subject. That was the course followed from the inception of our statehood. At the February term, 1805, the Supreme Court in promulgating a new set of rules said in part:—

“Whereas many of the rules, heretofore established in this court for regulating the practice thereof, have, either in whole or in part, been superseded by the act of the legislature made on that subject, entitled ‘An act to regulate the practice of the courts of law’ * * * Therefore the justices of said court, having carefully inspected and considered the same, Do Order : that all the said rules heretofore made and established, be from henceforth vacated and holden for none * * 1 N. J. L. page v.

I have said that the authority of the court, generally recognized, has been to make rules concerning practice and procedure, subject to legislative enactment. And that is not only so of this State, but practically of all jurisdictions. The widely praised “Federal Rules of Civil Procedure,” used as a working basis for the framing of our own rules, were promulgated by the United States Supreme Court, not by inherent authority or by constitutional enactment, hut pursuant to an Act of Congress, 48 8tai. 1064, 28 U. 8. G., §<§ 723b, 723c (1934), now 28 U. 8. G. A., § 2072. What Congress gives it may take away; it will not, of course, take away so salutary a power, but the point is that the authority is legislative, and that the power to change is there. In touching upon the federal situation it may have some pertinency on the association of the term “law” with “legislative enactment” to quote the words of Chief Justice Marshall in Osborn v. The Bank of the United States, 9 Wheaton 738, 866 , 6 L. Ed. 204, 234 (1824) (italics inserted), “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature;, or, in other words, to Ihe will of the law.”

So it is that from the very beginning the authority of the court, recognized by the court and everyone, has been to make rules concerning practice and procedure, subject to being superseded by legislative enactment; and now, the constitutional mandate being that the court shall have the power to *263 make such rules, subject to law, and the committee of skilled and learned members who placed that article before the Convention having certified to the Convention that the language meant just what we have been saying, by what process of reasoning can the Constitution be interpreted as meaning anything else ? Even if it be that for some reason the formal report of the committee was not distributed among the general membership of the Convention until after the Judicial Article had been adopted, it is hardly to be assumed that if the provision in question was given any discussion whatever on the floor of the Convention the committee members who so frankly expressed their views over their signatures in the report would have omitted to mention them in the debate, or, lacking any floor discussion, that the general delegates to the Convention would attribute to the word a meaning out of the normal use throughout the article and the entire document. Moreover, after the final committee report had been printed and placed on the desk of each delegate, and the general features thereof had been called to the attention of the Convention by the acting chairman of the Committee speaking from the floor (I Convention Proceedings Record, p. 809), five sitpplemental recommendations affecting the Judicial Article (Id. 834) were separately considered and approved and ten days later, on the coming in of the report of the Committee on Arrangement and Eorm, the very sentence which is the subject of this opinion was debated on the question of making a substitution of words in the interest of clarification and to avoid ambiguity, and the suggested change was made (Id. 868, 869); but the proposal and the action had nothing to do with the words “subject to law” and the clarity of that expression was not questioned, although the entire Convention had known for ten days of the Committee’s interpretation that the Legislature might revise or repeal the rules of practice and procedure, or initiate new rules on the subject.

The whole drift of thought and events leads directly to the conclusion that the word “law” in the phrase “subject to law” includes statutory law within its application and, if our effort *264 is to find the actual meaning which the words, as written, were intended to convey, that there is nothing to justify the limitation implicit in the word “substantive.”

It is certain that the people of the State wanted extensive changes in their fundamental law and that, through their representatives, they framed, and by their direct vote they adopted, a Constitution to that end. But search has not yet uncovered any evidence that their wish for a change went beyond the provisions written down in that instrument. I suggest that a purpose to divest the Legislature of a field of enactment which, since the founding of our nation, here and everywhere, had been within the legislative province, should have been clearly expressed, and that if, as I think is incontrovertible, it was not clearly expressed, then it must be . deemed to have had no existence. The time of the Convention, and of the events just before and just after, is not so far removed that men and women may not with effect search their memories for what then transpired; and I believe that memory will be as void as are the records as to any general .understanding that the Legislature was to be stripped of its ultimate control over pleading and practice.

Constitutions are not made, and ought not to be construed, upon the hypothesis that men presently or prospectively in office will continue indefinitely to function in their particular capacities. They are built upon fundamental, continuing facts of human relations and theories of government. Individuals come and go, but constitutions run on. The several branches of government, absolutely and relatively, vary from decade to decade and generation to generation in the degree of virility and wisdom with which they serve their periods. We have weak courts and strong courts, weak legislatures and strong legislatures, weak governors and strong governors; but it would be disastrous to build or develop a constitution upon the assumption that the characteristics manifested at a given time in one or another of these governmental parts will continue without variation. Judges are men, with very much the same virtues and faults as other men; and, taking men by *265 and large, particularly men in public office, it has rarely been found Avise, in the long run, to vest them with power upon which there is no check. Our American conception of constitutional government is one of checks and balances. If the governor exceeds his limitations, if the legislature goes beyond its powers, the courts are available to enforce the constitutional restraints. But if our Supreme Court exceeds its powers, who shall impose the check ? Therein lies the danger when the court undertakes, not to construe law, but to malee it.

Let us take for convenient illustration the court rules upon which the present case turns. Until our 1947 Constitution went into effect and the new court rules were promulgated, the statutory period of appeal (B. S. 2:27-356) in civil cases of this nature Avas one year from the time judgment was entered. Under the new rules (1:2-5) that period was reduced to forty-five days, and it was made unlawful (1:7—9) for the court to extend that time. If the appeal is not taken within forty-five days, the ax falls. The rules were adopted under the constitutional provision that the Supreme Court should make rules concerning practice and procedure. But the Constitution also provided (Article VI, Section V, paragraph 2) that there should be an appeal from the Law Division to the Appellate Division, and the question was raised in the Appellate Division whether forty-five days was enough to constitute a reasonable period for the appeal which the Constitution granted. The Appellate Division held that in ordinary cases, of which this was one, the time was ample, but it surmised conditions which, should they exist, would make the time unreasonably short; and that was one way of saying that the rule under certain conditions would, in the opinion of that court, be unconstitutional. Indeed, the opinion said in terms that a limitation, whether adopted by the Supreme Court or by the Legislature, is not within their constitutional power if it fixes a time so short as to impair .substantially the right of appeal; and that, theoretically, is so. But the Appellate Division did not promulgate the rule, nor Avas it the court of last resort. If one of those surmised *266 conditions should be present here—the question does not arise now because I think we all agree that forty-five days in this case was, in fact, ample—the issue would be presented in the court which made the rule and which considered at the making that the time was ample. It has already passed once on the question. Of the maximum number of seven justices who would sit, four would make, or would be sufficient to make, the decision; three if by an eventuality, which sometimes happens, only five of the seven justices should sit. And all of the controlling votes might well be of justices who were under life tenure. Because I am of an age where life tenure has no significance to me personally I make free to express my unqualified approval of that improvement in the court system, but I feel obliged to say also by just that degree is the possibility of a check lessened. Added to the rather cloistered detachment which a justice feels obligated to preserve, it does not make for warm contacts with the everday working problems of the litigant and the practitioner. We have the valuable experience, briefly each year, of meeting with the Judicial Conference, of having their suggestions and of hearing their comments; but that is an advisory committee, without power of determination. The justices make the decision; four of them; perhaps three of them; on their own handiwork, a rule that cuts deeply into property and property rights. That decision would be absolutely honest and highly intelligent; but that is not the whole story; it could also be doctrinaire and arbitrary.

The application of much of what I have been saying is to the wisdom of the court in stretching words beyond their reasonable sense in order to hold a subject matter within the court’s unresponsible creation and control. A constitutional mandate to take what has always been a legislative function and place it both initially and finally in the hands of the court ought, as I have said, to be very clear; particularly since it is the court which makes the decision in its own favor.

The desire, I take it, is to save the body of rules which, with care and labor, has been built up during the past two *267 and a half years from being scuttled; and that is a laudable desire. I think, however, that the system, as such, is in no danger. It is scarcely conceivable that any devastating attack could successfully make its way through both houses of the Legislature and the Governor’s approval; it is still less conceivable, that such an attack, renewed over the Governor’s veto, public approval of the system being as we believe it is, could secure a two-thirds vote in each house. The chance of success for such a movement is negligible. That is a practical estimate which I think is sound. But if there be a chance, is it not such a chance as those who live in a democracy must be prepared to take P Or, putting it another way, for this is what it amounts to, may we weight down the scales of justice because of distrust of our democratic processes ? In my opinion, carefully reached, there is greater danger to our democratic form of government in following the lure of expediency than in marking our course by the compass.

The trend is toward leaving matters of pleading and practice to the courts; true; but leaving them there by legislative act or acquiescence. And I think that the intent of the Constitution is that way; giving the Supreme Court the authority, indeed the. direction, to set up a body of rules in the first instance, and leaving to the Legislature the authority, if it deems necessary, to intervene; with the belief that the necessity will not arise and that the Legislature will exercise its authority with that restraint which is fitting in all relations between the several departments of the government.

I believe that most students of the law, following the usual rules of construction and interpretation, and not being swerved by the impulse to find a way of reaching a desired result, will find little to criticize in the learned and human opinion written herein by Judge Bigelow for the Appellate Division in which it is said:—

“In our opinion, it was the intention of the people of the State thereby to vest in the new Supreme Court a power to regulate procedure that would be unhampered and unrestricted by the common law or by statutes enacted prior to the adoption of the Constitution. *268 The expression ‘subject to law’ referred to statutes that might thereafter be enacted by the legislature pursuant to the general grant of legislative power contained in Article IV of the new Constitution. The legislature is given the final word in matters of 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.”

Case, J., concurring in result.

For affirmance—Chief Justice Vanderbilt, and Justices Case, Oltphant, Wachenfeld, Burling and Ackerson—6.

For reversal—Justice Hbher—1.