For affirmance except as modified -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Mountain, J.
[60 NJ Page 556] A dispute arose between the Honorable James R. Giuliano, Assignment Judge of the County of Essex, and John F. Cryan, Sheriff of the same county, as to the manner in which petit jury panels are to be summoned, as to who is to care for and supervise petit jurors during their terms of service and as to who is to pay them their statutory allowances. Judge Giuliano by order dated February 3, 1971, appointed a senior court clerk "to assist the Assignment Judge for Essex County in summoning and supervising the daily attendance of the petit jurors and the assigning of petit jurors required for trials by the Superior Court, the Essex County Court and the Essex County District Court, effective March 1, 1971." Soon thereafter the Sheriff, acting upon the advice of counsel, assigned persons from his own office also to summon and supervise the daily attendance of jurors. The lines being thus drawn, on April 20, 1971, Judge Giuliano served on Sheriff Cryan an order to show cause why the latter "should not be permanently
enjoined and restrained from in any way interfering with or attempting to interfere with the exercise by the Court of its aforementioned duties and responsibilities to supervise, process, and select petit jurors and petit jury panels and assist petit jury panels for trials to the Superior Court, the Essex County Court, and the Essex County District Court."
On the return day of the order to show cause Judge Giuliano presided. He denied the Sheriff's motion for a change of venue, refused to disqualify himself and granted the motion of the Essex County Bar Association for leave to appear as amicus curiae. Judge Giuliano expressed the view that the action he had taken was purely administrative and that hence the Sheriff was not entitled, as he contended, to treat the hearing as a plenary proceeding at which testimony might be taken and a record made. The Court heard oral argument directed to the validity of the challenged order, and on May 12, filed an opinion, 114 N.J. Super. 527, and entered an order enjoining the Sheriff from in any way interfering with the Court's exercise of its duties "to supervise, process and select petit jurors and petit jury panels and assign petit jury panels for trials to the Superior Court, the Essex County Court and the Essex County District Court."
The Sheriff appealed to the Appellate Division and we certified the case upon our own motion. R. 2:12-1.
The narrow issues here presented concern only the actual summoning of petit jurors, their supervision while attending the courts and the manner in which they shall receive the statutory fees to which they are entitled.
The selection of persons to serve on petit jury panels was once the province of the sheriff. State v. Sturdivant, 31 N.J. 165, 171 (1959), cert. den. 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960); State v. Profita, 114 N.J.L. 334, 338 (E. & A. 1935). Due to abuses, especially the packing of juries, this power, at least in part, was taken from the sheriff by the so-called Fielder Act, L.
1913 (Sp. Sess.) c. 20, and was placed in the hands of jury commissioners. The sheriff of each county became, ex officio, one of the commissioners; the other, appointed by the Chancellor, was to be a local resident, not of the same political party as the sheriff. Later the Governor was substituted for the Chancellor as the person to make the appointment, L. 1929, c. 17, and still later the justice of the former Supreme Court presiding in the county. L. 1934, c. 111. Upon the passage of L. 1944, c. 96 the sheriff ceased to be one of the two commissioners solely by virtue of his office; rather, two resident citizens in each county, of different political parties, were to be appointed by the Governor as "commissioners of juries." The sheriff might be, but need not be, one of the commissioners so selected. Finally, by L. 1953, c. 240, (N.J.S.A. 2A:68-1), the power to appoint jury commissioners was lodged in the Supreme Court.
None of this is disputed by Sheriff Cryan, who agrees that the selection of petit jury panels rests with jury commissioners appointed to office by this Court. What he does claim, however, is the right, entirely ministerial in nature, to issue and serve the actual written notices summoning the jurors to attendance, whether this be done by personal service or by mail. N.J.S.A. 2A:72-5. The opposing position of the Assignment Judge is that while he, the judge, may call upon the sheriff to perform this task, he is not required to do so, but rather is at liberty to adopt some different administrative arrangement, as he has in fact done here. We agree, for reasons to be discussed below, that the Assignment Judge possesses this power.
Initially we note that the office of sheriff is not a constitutional office in the sense that some provision in the constitution protects it from legislative change. Rather, the Legislature is entirely at liberty to increase, decrease or modify the powers and duties incident to this position. A contrary view, expressed in Virtue v. Freeholders of Essex,
67 N.J.L. 139 (Sup. Ct. 1901), was repudiated in State v. De Lorenzo, 81 N.J.L. 613, 620 (E. & A. 1911); see also Pub. Utility Comm'rs v. Lehigh Valley R.R. Co., 106 N.J.L. 411, 419 (E. & A. 1930). While these cases were decided under the Constitution of 1844, the language of the only provision of the Constitution of 1947 ...