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Winberry v. Salisbury

Decided: June 27, 1950.

JOHN J. WINBERRY, PLAINTIFF-APPELLANT,
v.
W. BURTON SALISBURY, DEFENDANT-RESPONDENT



On appeal from the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J. Case, J. (concurring). Case, J., concurring in result.

Vanderbilt

[5 NJ Page 242] 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, 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 (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, 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, 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 of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined."

If the Legislature may amend the rules of court, it may decide the extent to which the Law Division and the Chancery Division shall exercise the powers and functions of the other division, and it may control the degree to which legal and equitable relief may be granted in any cause. We think it may be safely said that no such thoughts were ever in the mind of any member of the Constitutional Convention or of any citizen who voted for the Constitution. And yet if "subject to law" means subject to legislation, such results might inevitably follow. The courts in some of their essential judicial operations, instead of being one of the three coordinate branches of the State Government, would have been rendered subservient to the Legislature in a fashion never contemplated by any.

What, then, is the meaning of "subject to law"? The only interpretation of "subject to law" that will not defeat the objective of the people to establish an integrated judicial system and which will at the same time give rational significance to the phrase is to construe it as the equivalent of substantive law as distinguished from pleading and practice. The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which

such rights and duties are enforced in the courts, is a fundamental one that is part of the daily thinking of judges and lawyers. Substantive law includes much more than legislation, it comprehends also the rights and duties which have come down to us through the common law. The phrase "subject to law" in Article VI, Section II, paragraph 3 of the Constitution thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of the substantive law as such. While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power.

The only contrary authority that has been cited to us is the statements contained in the Report of the Judiciary Committee of the Constitutional Convention. Thus, it said at pages 7 and 8 of its report:

"The third shortcoming of the existing judicial organization, and perhaps the most costly, is the total lack of business-like organization, coordination and supervision of the courts as a whole. A corollary feature of this condition is the practice of resigning responsibility for the formulation of practice and procedure to intermittent revision by the Legislature. * * * This Court was given the power to make rules for administration, practice and procedure in all courts, subject to the overriding power of the Legislature with respect to practice and procedure."

But this report of the Judiciary Committee, though dated August 26, 1947, was not handed to the members of the Convention until August 28th, I Convention Proceedings Record 809, two days after the Judicial Article had been adopted by the Convention on August 26th, I Convention Proceedings Record 793. The report of the Judiciary Committee therefore cannot be deemed a part of the parliamentary history of the Constitution, for it was not known to and was not acted upon by the members of the Constitutional Convention in voting in favor of Article VI, creating a new judicial system. The report, moreover, while signed by all of the members

of the Committee, concludes by saying, "Although the foregoing is the report of the Judiciary Committee, it is not necessarily to be inferred that the comments therein contained express the views of all members." Thus not only was the report of the Judiciary Committee from which we have quoted not before the Convention at the time that it acted on Article VI, but a search of the entire proceedings fails to disclose any debate on the meaning of the phrase "subject to law." The chief debate on the Judicial Article was between the merits of the proposal submitted by the Judiciary Committee and another proposal submitted from the floor.

The phrase "subject to law" seems to have originated in the draft of a constitution submitted by the Constitution Revision Commission of 1942. There we find in Article V, Section II, paragraph 3, the following provision:

"The Supreme Court shall make rules as to the administration of all the courts, and, subject to law, as to pleading, practice and evidence ...


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