Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This action in lieu of prerogative writ was brought in the Superior Court, Law Division, to compel the defendant to restore plaintiff's name to the payroll of the State as a Judge of the Superior Court. His name had been removed from the payroll on January 17, 1956. Summary judgment was granted in defendant's favor below, and plaintiff appeals to this court.
There is no controversy as to the facts. At the general election held November 4, 1947, the voters of this State adopted a new Constitution, containing a Judicial Article which for most purposes became effective September 15, 1948 (Art. 11, Sec. 4, Par. 14 of that Constitution).
On December 15, 1947, the Governor nominated plaintiff as a Judge of the Circuit Court "for the term prescribed by law," and on the same day the Senate confirmed the nomination. The term prescribed for that office by the applicable statute was seven years (N.J.S.A. 2:5-4); however the new Constitution, by abolishing the Circuit Courts as of September 15, 1948 (Art. 11, Sec. 4, Par. 3), necessarily limited the office itself to a period of ten months after the appointment.
Also on December 15, 1947 the Governor nominated a Chief Justice and six Associate Justices of the new Supreme Court (Art. 11, Sec. 4, Pars. 1, 14); and on the same day the Senate confirmed these nominations.
Some attention perhaps should be given to the precise sequence of these matters -- that is, of the nominations, the confirmations to office and the issuance of the commissions of the Chief Justice, the six Associate Justices and the plaintiff, respectively. As plaintiff agreed at the oral argument before us, the nominations of the seven Justices and the plaintiff were all submitted to the Senate on December 15, 1947; later the same day, and after the eight nominations had been so submitted, they were confirmed by the Senate; thereafter, and following all these confirmations, commissions were issued to these Justices and the plaintiff (see Art. 5, Sec. 1, Par. 12, fourth sentence, of the Constitution).
In fact two commissions were then issued to the plaintiff, both dated December 15, 1947, one as a Judge of the Circuit Court and the other as a Judge of the Superior Court. According to the terms of the latter instrument, he was commissioned to hold office as a Judge of the Superior Court
"for and during legal time prescribed in Paragraph 3, Section VI, Article VI of the State Constitution adopted November 4, 1947."
It was indicated on the oral argument that under date of December 15, 1947 commissions were issued, not only to the members of the new Supreme Court, but also to all persons holding office on November 4, 1947, whom the Attorney-General concedes to have been constituted Judges of the
Superior Court by Art. 11, Sec. 4, Par. 1, second sentence, of the 1947 Constitution; however these commissions, it was said, refer to this paragraph of the Constitution, and not (as in the case of plaintiff's commission) to Art. 6, Sec. 6, Par. 3. We find nothing in the record dealing with the terms of any commissions other than those issued to the plaintiff, and hence will ignore the point.
On June 28, 1948 the Governor nominated the plaintiff as a Judge of the Superior Court "for the term prescribed" by Art. 6, Sec. 6, Par. 3 (again no reference was made to Art. 11, Sec. 4, Par. 1); and on that date the Senate confirmed this nomination for the term thereby prescribed. Thereupon another commission was issued to him as ...