On appeal from the Superior Court, Law Division, Mercer County, to the Appellate Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Wachenfeld, J. (dissenting).
[22 NJ Page 29] This action in lieu of a prerogative writ was brought by the Attorney-General of New Jersey to test the validity of the extension by the Legislature of the term in office of the defendants as members of the Law Enforcement Council, who had been appointed by the Governor with the advice and consent of the Senate, and seeking their ouster from office. From an adverse determination on his motion for summary judgment in the Law Division of the Superior Court, the Attorney-General appealed. We certified
the matter on our own motion while it was pending in the Appellate Division.
On May 21, 1952, by chapter 253, L. 1952; N.J.S.A. 52:17 B -43.1 et seq. there was established in the Department of Law and Public Safety within the executive branch of our State Government a body known as the Law Enforcement Council, consisting of five members, each to be appointed by the Governor with the advice and consent of the Senate and to "serve at the pleasure of the Governor." This act provided that the Law Enforcement Council should become inoperative on and after July 1, 1953, unless its operation was extended beyond that date by legislative act.
On June 9, 1953, by chapter 182 of Laws of 1953, the operation of the law was extended for a period of two years until July 1, 1955. The 1953 amendment eliminated the indefinite term of office of the Council members, originally established "at the pleasure of the Governor," and provided that they should now be appointed for a term beginning July 1, 1953 (except in certain instances not pertinent to the matter before us) and ending on July 1, 1955. This amendment also separated the Law Enforcement Council from the Department of Law and Public Safety and made provision for an independent appropriation for it in the performance of its delegated work. Subsequent to the 1953 amendment the defendants were appointed members of the Law Enforcement Council with the advice and consent of the Senate for terms ending on July 1, 1955.
On June 14, 1955, by chapter 68 of Laws of 1955, the original act was further amended extending its operation until July 1, 1956. This amendatory act, in addition, amended section 2 of the original act so as to read and provide that:
"The council shall consist of 5 members. Each member of the council shall be appointed by the Governor, with the advice and consent of the Senate, for a term ending on July 1, 1955. In case of a vacancy in the present membership of the council the term of the person appointed to fill such vacancy shall commence upon his appointment and confirmation and shall continue until July
1956. Vacancies shall be filled in the same manner as the original appointments were made. The terms of the members of the council now in office are hereby extended until July 1, 1956."
The Attorney-General maintained that the italicized portion of section 2 as amended was unconstitutional and invalid because it constituted an attempted appointment by the Legislature of members of the Law Enforcement Council, who the Attorney-General claimed were executive or administrative officers, in violation of the provisions of the Constitution of 1947, Article IV, Section V, paragraph 5, which provides that:
"Neither the Legislature nor either house thereof shall elect or appoint any executive, administrative or judicial officer except the State Auditor."
Accordingly he filed his complaint in this action seeking to test the title of the defendants to their offices and seeking their ouster. After the answers of the defendants were filed, leave was granted to the Senate and the General Assembly of New Jersey to file briefs and present oral argument in this matter through Senator Walter H. Jones as amicus curiae.
The deposition of the defendant Katherine K. Neuberger was then taken by the plaintiff for the purpose of showing the activities of the Council during its term of existence. Thereafter the plaintiff moved for a summary judgment. The matter was heard before the late Judge Ralph J. Smalley, who ruled that although the extension by the Legislature of the term of an executive or administrative officer was unconstitutional in view of the provisions of Article IV, Section V, paragraph 5 of the Constitution of 1947, the Law Enforcement Council was not an executive or an administrative agency but primarily a legislative body, and that therefore the Legislature had the power to extend the terms of the Council members.
The basic functions, the powers and the duties of the Law Enforcement Council are set forth in section 5 of the Act,
N.J.S.A. 52:17 B -43.5, which has never been amended. Here we find that the ...