For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Oliphant and Wachenfeld, J.J., concurring in result.
[22 NJ Page 202] The Law Division in an opinion reported at 40 N.J. Super. 151 (1956), rejected the plaintiff's claim of tenure as a judge of the Superior Court; its action was unanimously sustained by the Appellate Division in an opinion reported at 40 N.J. Super. 301 (1956); thereafter the plaintiff appealed to this court as of right since the cause involved a question arising under the Constitution of the State. See R.R. 1:2-1(a); Const. 1947, Art. VI, Sec. V, par. 1.
The plaintiff held no judicial office whatever when our State Constitution was adopted at the general election held on November 4, 1947. However, on December 15, 1947 the Governor nominated him 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 by statute for the office of circuit court judge was seven years (R.S. 2:5-4) but the 1947 Constitution contained a provision abolishing the circuit courts as of September 15, 1948 when its new Judicial Article took effect. See Art. XI, Sec. IV, par. 3; Art. XI, Sec. IV, par. 14. Although unaccompanied by any independent nomination and confirmation as a Superior Court judge the plaintiff received (in addition to his commission dated December 15, 1947 as a circuit judge) a commission dated December 15, 1947 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." Thereafter the plaintiff took his oath of office as a circuit judge and entered upon the performance of his judicial duties.
On June 28, 1948 the Governor nominated the plaintiff as a judge of the Superior Court for the term prescribed by paragraph 3, Section VI, Article VI of the 1947 Constitution and on the same day the Senate confirmed the nomination for such term. Under date of June 28, 1948 a commission was issued to the plaintiff appointing him as a judge of the Superior Court for the term "prescribed by Paragraph 3, Section VI, Article VI of the State Constitution adopted November 4, 1947." On September 13, 1948 the plaintiff took his oath of office as a judge of the Superior Court and under date of September 15, 1948 he (apparently along with all other Superior Court judges) received a commission to hold office "for and during legal time." From September 15, 1948 until his name was removed from the payroll on January 17, 1956 the plaintiff performed the duties of a Superior Court judge. However, he received no appointment or reappointment as a Superior Court judge after 1948 and does not qualify for tenure
under Art. VI, Sec. VI, par. 3 which provides that Superior Court judges shall have tenure upon reappointment after holding their offices for initial terms of seven years. Indeed, the plaintiff expressly disavows any contention under that provision but rests his tenure claim entirely on schedule provisions which were attached to the 1947 Constitution to facilitate the transition from the old to the new judicial branch of government. See 2 Record of Proceedings, Const. Conv. of 1947, p. 1195. In particular, he relies upon Art. XI, Sec. IV, par. 1 which reads as follows:
"Subsequent to the adoption of this Constitution the Governor shall nominate and appoint, with the advice and consent of the Senate, a Chief Justice and six Associate Justices of the new Supreme Court from among the persons then being the Chancellor, the Chief Justice and Associate Justices of the old Supreme Court, the Vice Chancellors and Circuit Court Judges. The remaining judicial officers enumerated and such Judges of the Court of Errors and Appeals as have been admitted to the practice of law in this State for at least ten years, and are in office on the adoption of the Constitution, shall constitute the Judges of the Superior Court. The Justices of the new Supreme Court and the Judges of the Superior Court so designated shall hold office each for the period of his term which remains unexpired at the time the Constitution is adopted; and if reappointed he shall hold office during good behavior. No Justice of the new Supreme Court or Judge of the Superior Court shall hold his office after attaining the age of seventy years, except, however, that such Justice or Judge may complete the period of his term which remains unexpired at the time the Constitution is adopted."
The defendant's position is that the quoted paragraph dealt only with incumbent judges who were in office at the time of the adoption of the Constitution on November 4, 1947 and had no relation whatever to new judges, such as the plaintiff, who were first appointed thereafter. Although he stresses the words actually embodied in the paragraph he properly places reliance on the intent of the framers of the Constitution and the people of the State who approved it, as fairly gathered from the constitutional language when read in the full light of its history, purpose and context. See Richman v. Ligham, 22 N.J. 40, 44 (1956); Behnke v. New Jersey Highway Authority, 13 N.J. 14, 24 (1953);
John S. Westervelt's Sons v. Regency, Inc., 3 N.J. 472, 479 (1950); State v. Murzda, 116 N.J.L. 219, 222 (E. & A. 1936). Cf. Alexander v. New Jersey Power & Light Co., 21 N.J. 373, 378 (1956); Palkoski v. Garcia, 19 N.J. 175, 181 (1955); Caputo v. Best Foods, 17 N.J. 259, 264 (1955); In re Roche's Estate, 16 N.J. 579, 587 (1954).
The plaintiff's position is that he was a circuit court judge when the members of the new Supreme Court were first appointed on December 15, 1947; that he became a Superior Court judge on December 15, 1947 within the language of the first two sentences of Art. XI, Sec. IV, par. 1; and that upon receiving a second appointment on June 28, 1948 he acquired tenure within the language of the closing phrase in the third sentence. If his position were accepted it would afford tenure to him after an initial term of well under a year; and this despite the fact that the Constitution expressly prescribed an initial term of seven years which would be applicable generally to newly appointed Superior Court judges. The plaintiff urges that this anomalous result is compelled by a literal and grammatical reading of Art. XI, Sec. IV, par. 1. Without at all subscribing to his point of view we take the liberty of referring to Judge Learned Hand's well-known remark that "there is no surer way to misread any document than to read it literally." Guiseppi v. Walling, 144 F.2d 608, 624, 155 A.L.R. 761 (2 Cir. 1944), affirmed sub nom. Gemsco v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945). Cf. Waters v. Quimby, 27 N.J.L. 296, 311 (Sup. Ct. 1859), affirmed 28 N.J.L. 533 (E. & A. 1859):
"When the words of a statute are susceptible of two meanings, the one favorable, and the other hostile to its principal design, the former should prevail and control the construction. Where the words are clear, and the difficulty is made by critical exposition, that exposition should not be adopted in clear contravention of the scope and policy of the act. Few statutes would stand if tried by the strictest standards of logic, grammar, or rhetoric."
In In re Roche's Estate, supra, Justice Heher aptly remarked that the meaning of an enactment is ...