For affirmance -- Justices Mountain, Sullivan and Clifford and Judge Carton. For reversal -- Chief Justice Hughes and Justices Pashman and Schreiber. The opinion of the court was delivered by Mountain, J. Sullivan, J. (concurring). Hughes, C.J., dissenting. Justices Pashman and Schreiber authorize me to state that they join in this opinion. Pashman, J., dissenting. Chief Justice Hughes and Justice Schreiber join in this dissent.
This appeal presents the question of the constitutionality of the nomination of Stephen B. Wiley to the office of Associate Justice of the Supreme Court of New Jersey. The trial judge ruled that the nomination was unconstitutional as being in violation of N.J. Const., Art. 4, § 5, para. 1, which reads as follows:
No member of the Senate or General Assembly, during the term for which he shall have been elected, shall be nominated, elected or appointed to any State civil office or position, of profit, which shall have been created by law, or the emoluments whereof shall have been increased by law, during such term. The provisions of this paragraph shall not prohibit the election of any person as Governor or as a member of the Senate or General Assembly.
[ N.J. Const., Art. 4, § 5, para. 1]
The facts are not in dispute. Wiley was elected to the New Jersey State Senate in November, 1973, and took office January 8, 1974. His four-year term will expire January 10, 1978. In 1974 the New Jersey Legislature passed and there was enacted into law, a statute which, inter alia, increased the annual salaries of Associate Justices of the Supreme Court from $45,000 to $48,000. L. 1974, c. 57, effective June 28, 1974.*fn1 The enactment contains the following provision:
The increases in salary provided for in this act shall not be applicable to any present member of the Senate or General Assembly during the term for which he shall have been elected should such member hereafter be appointed to any of the offices enumerated in section 1 of this act. [ N.J.S.A. 2A:1A-8]
It will be noted that one of the offices enumerated in section 1 is "Associate Justice of the Supreme Court."
On March 31, 1975, Associate Justice Frederick W. Hall retired from the bench creating a vacancy in the office of Associate Justice of the Supreme Court. On September 16, 1976 Governor Byrne nominated Senator Wiley to the office of Associate Justice to fill this vacancy. The New Jersey Senate confirmed the nomination with five dissenting votes. Because of the litigation which immediately ensued, Senator Wiley has not taken the oath of office as an Associate Justice, nor has he undertaken any judicial duties.
Two declaratory judgment actions challenging the Wiley nomination were promptly filed in the Superior Court, Law Division. The first, in Morris County, was brought by taxpayer groups against Senator Wiley, Governor Byrne, the President of the New Jersey Senate and the Attorney General. The second, filed in Mercer County by eight members of the New Jersey Senate, joined the Governor and the State of New Jersey as parties defendant. Both suits charged that Senator Wiley was ineligible, during the term for which he had been elected Senator, to be nominated to fill the vacancy in the Supreme Court, because the emoluments of that office had been increased by law during his senatorial term.
The two actions were consolidated. There being no disputed issues of fact, Judge Schoch, after hearing argument, rendered an oral opinion on September 30, 1976, holding the nomination invalid as in violation of N.J. Const., Art. 4, § 5, para. 1, quoted above.
Defendants filed notices of appeal to the Appellate Division and then moved before this Court for direct certification and for an accelerated argument. Both motions were immediately granted.
Shortly after hearing oral argument, this Court, sua sponte, directed the parties to file supplemental briefs upon the issue, not theretofore raised, as to whether N.J.S.A. 2A:1A-6 et seq., containing as it does, N.J.S.A. 2A:1A-8, set forth above, is in violation of N.J. Const., Art. 4, § 7, para. 9(5), which states that:
The Legislature shall not pass any private, special or local laws:
(5) Creating, increasing or decreasing the emoluments, term or tenure rights of any public officers or employees. [ N.J. Const., Art. 4, § 7, para. 9(5)]
Four members of this Court are of the view that this statute, in its present form, is special legislation which violates N.J. Const., Art. 4, § 7, para. 9(5). All parties to the litigation concede that were it not for N.J.S.A. 2A:1A-8, the nomination would clearly be in violation of N.J. Const., Art. 4, § 5, para. 1. Since the majority have concluded that the presence of N.J.S.A. 2A:1A-8 renders the salary statute unconstitutional in its application to legislator-appointees, and hence must be excised therefrom, it follows that the nomination cannot stand.
Three members of the majority, furthermore, agree with the trial court that even were the statute allowed to stand intact, the nomination would nonetheless do violence to N.J. Const., Art. 4, § 5, para. 1.
We first address the issue, as to the resolution of which there is majority agreement, whether L. 1974, c. 57, now N.J.S.A. 2A:1A-6 et seq. is, in its present form, special legislation increasing the emoluments of public officers and hence prohibited by N.J. Const., Art. 4, § 7, para. 9(5). The argument of course centers upon the final section of the act, which, for convenience, we restate here:
The increases in salary provided for in this act shall not be applicable to any present member of the Senate or General Assembly during the term for which he shall have been elected should such member hereafter be appointed to any of the offices enumerated in section 1 of this act.
It is not disputed that the statute increases emoluments -- indeed it has no other purpose and deals with no other
subject -- nor that an Associate Justice of the Supreme Court is a public officer. Thus it seems conceded that the subject matter of the enactment falls within one of the categories of legislation that can constitutionally be enacted only by a general law. The only question at issue, then, is whether the statute constitutes special or general legislation.
The constitutional provision identifying certain subjects as eligible for treatment only by way of general legislation became part of the Constitution of 1844 by amendment adopted in 1875. It was carried into the Constitution of 1947 without substantial change. Similar provisions are to be found in most, but not all, of the constitutions of the other states. 2 Sutherland, Statutory Construction (4th ed. 1973) § 40.01. The purpose behind special law prohibitions has been stated thus:
The legislative and judicial processes [have] developed along different lines . . . the legislative process lacks the safeguards of due process and the tradition of impartiality which restrain the courts from using their powers to dispense special favors. Over the course of time, as a result, the propensities of legislatures to indulge in favoritism through special legislation developed into a major abuse of governmental power.
As the bulk of special laws grew, demands for reform became insistent, and constitutional prohibitions were enacted to limit the practice of enacting special legislation and to achieve greater universality and uniformity in the operation of statute law in respect to all persons. [Id.]
In seeking to decide whether any particular legislation is general or special, the initial inquiry must be to determine the purpose of the enactment and the subject matter with which it is concerned. Alfred Vail Mutual Ass'n. v. Borough of New Shrewsbury, 58 N.J. 40, 48-49 (1971); see also Roe v. Kervick, 42 N.J. 191, 233 (1964). While this may sometimes be difficult, it is not so here. The purpose of L. 1974, c. 57 was simply and solely to adjust judicial
salaries. This was the one and only object of the act.*fn2 Although it dealt with the salaries of most members of the state judiciary, we are here concerned only with its application to salaries of Associate Justices of the Supreme Court.
This having been determined, it is next appropriate to inquire whether there are persons similarly situated to those embraced within the act, who, by the terms of the act, are excluded from its operation. The persons, relevant to this inquiry, who are embraced within the act are the Associate Justices of the Supreme Court, presently five in number, each of whose annual salary by the terms of the statute was increased $3,000. Excluded by the terms of the act (Section 8) is any member of the Legislature who might succeed to the vacant position on the Court. For a prescribed period of time any such legislator-appointee, having become an Associate Justice, would not receive this increment. There would thus be five Associate Justices each receiving $3,000 more in annual salary than would the sixth. Unless this classification can somehow be sustained, the attack on the statute must succeed. The test, of course, is whether the classification is reasonable, not arbitrary, and can be said to rest upon some rational basis justifying the distinction. Budd v. Hancock, 66 N.J.L. 133, 135 (Sup. Ct. 1901); Woodruff v. Freeholders of Passaic, 42 N.J.L. 533, 535 (Sup. Ct. 1880); cf. Skinner v. Collector, 42 N.J.L. 407, 412 (Sup. Ct. 1880).
There has been excluded from the class of persons to whom the act applies, one who, as a member of the Court,
would differ in no significant respect from the other five Associate Justices. It would be fatuous to suggest that distinctions exist among the Associate Justices of the Court such as to justify a salary differential. All perform the same tasks and share the same responsibilities. Indeed no argument has been offered to support any such distinction. It clearly does not exist. Hence we must conclude that the classification which results from an application of the statute is arbitrary. See Batistich v. Brennan, 45 N.J. 533, 535-36 (1965); cf. Epstein v. Long, 133 N.J. Super. 590, 599-600 (Law Div. 1975).
A further point merits comment. It has been argued that the classification created by Section 8 should be sustained as valid because the Legislature was there seeking, as to its then membership, to avoid the effect of the ineligibility provision of the Constitution, N.J. Const., Art. 4, § 5, para. 1, discussed at length in Part II of this opinion, and that this purpose would sustain a valid classification. Assuming this to have been the legislative intent, which may or may not have been the case, it in no way can be said to create a valid classification within the framework of this legislation.
It was noted above that this statute is concerned only with judicial salaries. Its effect, therefore, and hence its validity or invalidity, is to be gauged only as its impact may be observed after, not before, a legislator-appointee qualifies as a member of the Court and as such becomes entitled to receive a judicial salary.
Plaintiffs argue that the classification suggested above would in itself be invalid since it must have had as its aim the improper avoidance of a constitutional prohibition. We need not and do not express any opinion upon this point since, as we have seen, it is irrelevant. We look only to the effect produced by the statute upon the salary structure of the members of the Supreme Court.
Briefly restated, the method of analysis is this: we first discern the purpose and object of the enactment.
We then undertake to apply it to the factual situation presented. Finally we decide whether, as so applied, the resulting classification can be said to rest upon any rational or reasonable basis relevant to the purpose and object of the act. Since, in this case, it quite obviously cannot, we reach the conclusion that the statute constitutes special legislation.
This result will be seen to emanate from the inclusion of N.J.S.A. 2A:1A-8 in the salary adjustment act. Believing that the legislative intent will be more nearly realized by exscinding this provision than by declaring the entire statute unconstitutional, we direct that this familiar technique of partial excision be employed. State v. DeSantis, 65 N.J. 462, 472-74, and authorities there cited. The foregoing provision, N.J.S.A. 2A:1A-8 will henceforth be deemed deleted from the statute. This results in a decision that the nomination is invalid, and that the judgment of the trial court must, upon this ground, be affirmed.
Although our decision rests upon the determination of the majority as set forth in Part I of this opinion, we consider it advisable, because of the singular nature and undoubted importance of this case, to discuss the issue upon which the trial court rested its opinion and judgment. This issue is, were N.J.S.A. 2A:1A-8 deemed not to be special legislation, could the nomination be supported? Justice Clifford and Judge Carton join the writer of this opinion in the belief that it could not.
A great American jurist once said that "[i]t is sometimes more important to emphasize the obvious than to elucidate the obscure."*fn3 We believe that to be true here. It is vitally necessary that we not permit the unusual nature of this case to obscure its essential simplicity.
The pertinent constitutional provision with which we are here concerned, Art. 4, § 5, para. 1, which is quoted above, is not in our view in any sense ambiguous. To us it is devoid of any trace of uncertainty. It limits the eligibility of a member of the Legislature as candidate for "any State civil office or position, of profit," "during the term for which he shall have been elected."
The limitation is of a dual nature. The legislator, during the proscribed period, shall neither be "nominated, elected or appointed" to any "civil office or position" which shall either (1) "have been created by law," or (2) "the emoluments whereof shall have been increased by law" during the term for which he shall have been elected. He remains eligible, during his legislative term, as a candidate for any office or position that does not fall within either of the two forbidden categories. He regains his eligibility with respect to the two proscribed categories of office upon the expiration of the legislative term for which he shall have been elected.
It is a familiar rule of construction that where phraseology is precise and unambiguous there is no room for judicial interpretation or for resort to extrinsic materials. The language speaks for itself, and where found in our State Constitution the language is the voice of the people. As this Court said some twenty years ago,
[T]he Constitution derives its force, not from the Convention which framed it, but from the people who ratified it; and the intent to be arrived at is that of the people.
The Constitution was written "to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning"; and "where the intention is clear there is no room for construction and no excuse for interpolation or addition." United States v. Sprague, 282 U.S. 716, 51 S. Ct. 220, 75 L. Ed. 640 (1931) [ Gangemi v. Berry, 25 N.J. 1, 16 (1957)]
With these thoughts in mind, let us examine the facts before us. During the four-year term for which Senator Wiley was elected to the Senate, the salary of Associate
Justice of the Supreme Court -- the civil office or position to which he has now been nominated -- was increased by act of the Legislature, of which he was then a member, by the sum of $3,000. All appear to concede that had the matter stopped there, all members of the then State Legislature -- including Senator Wiley -- would have been automatically disqualified from this judicial appointment during the balance of their legislative terms.
This brings us to a consideration of N.J.S.A. 2A:1A-8, the section of the salary statute, twice quoted above, which is said to permit the presently pending appointment. We take this provision to say that should a member of the Legislature which passed the salary-increase statute be appointed to any of the positions to which the increase applies, he would not receive the increase "during the term for which he shall have been elected."
The word "term" as used in this statutory phrase clearly means term of office as legislator. Thus upon appointment to the office the legislator-appointee would not enjoy the salary increase during the balance of the legislative term for which he had been elected. In the case of Senator Wiley, this period would extend from the day the oath of office as an Associate Justice of the Supreme Court was administered until January 10, 1978, when the term for which he was elected Senator will expire. After that, for the balance of his seven-year term as Associate Justice, he would receive the salary increase.*fn4
We cannot read Art. 4, § 5, para. 1 to permit this. Nothing in the Article limits the disqualifying increase in emolument to those that might otherwise be enjoyed during the balance of the legislator-appointee's legislative term of office. No statement to that effect forms any part of the provision.
As the Article is worded, the phrase "the term for which he [legislator] shall have been elected" is significant in two respects and in no other. It fixes and limits the time span within which legislative action must be taken if it is to be inhibiting, and similarly fixes and limits the time span during which the resulting ineligibility shall persist. It is relevant in no other way; it is used in no other sense. Specifically, it is clearly not related to the time of receipt or nonreceipt of an increase in emoluments.
In considering the meaning of this Article, an important principle of constitutional interpretation should not be overlooked. Not all constitutional provisions are of equal majesty. Justice Holmes once referred to the "great ordinances of the Constitution."*fn5 Within this category would be included the due process clause, the equal protection clause, the free speech clause, all or most of the other sections of the Bill of Rights, as well as certain other provisions. The task of interpreting most if not all of these "great ordinances" is an evolving and on-going process. The history of the Federal Constitution clearly teaches that what may, for instance, be due process in one decade or in one generation will fail to meet this test in the next. And this is as it should be. The "great ordinances" are flexible pronouncements constantly evolving responsively to the felt needs of the times.
But there are other articles in the Constitution of a different and less exalted quality. Such provisions generally set forth -- rather simply -- those details of governmental administration
as are deemed worthy of a place in the organic document. Examples from our own Constitution might be the clause in Art. 4, § 4 para. 6 that requires bills and joint resolutions to be read three times in each house before final passage; or the provision in Art. 4, § 5, para. 3 declaring that upon a member of the Legislature becoming a member of Congress, his seat in the Legislature shall thereupon become vacant; or the requirement set forth in Art. 5, § 1, para. 2 that the Governor shall be not less than thirty years of age.
Such constitutional provisions as these, and others like them, important as they doubtless may be, are entirely set apart from the "great ordinances" mentioned above, and as matter of constitutional interpretation should receive entirely different treatment. Where in the one case the underlying spirit, intent and purpose of the Article must be sought and applied as it may have relevance to the problems of the day, in the other a literal adherence to the words of the clause is the only way that the expressed will of the people can be assured fulfillment.
We submit that the ineligibility clause quite definitely and clearly falls into this latter category. It announces no principle of government; rather it touches upon the mechanics and administration of government, much as in the examples set forth above. Provisions such as this should be read literally. No process of "interpretation" is necessary or appropriate. Only in this way can the plainly-expressed will of the people be carried out.
The clarity with which the ineligibility clause is expressed in both Federal and State Constitutions may be, in part at least, responsible for the fact that neither the Supreme Court of the United States nor this Court has ever hitherto been called upon to construe it.*fn6
It is a matter of general agreement that the "ineligibility" clause in our State Constitution derives directly from the similar provision in the Constitution of the United States, viz, Art. 1, § 6, clause 2, and that the latter was the result of one of the several compromises that characterized the work of the Convention of 1787. A brief word as to how this compromise evolved may be pertinent.
Certain delegates, led by Edmund Randolph of Virginia,*fn7 generally fearful of too expansive Federal power, urged that no member of Congress should be eligible for appointment to any state or federal office during the term for which he should have been elected and for one year thereafter. Other
delegates, including Alexander Hamilton, were opposed to any disqualification whatsoever. They feared that imposing any kind of ineligibility would result in able men being unavailable for public office. James Madison proposed the compromise arrangement that was substantially adopted. There should be no disqualification, he suggested, except in two respects: during the term for which he should have been elected no member of Congress might be appointed to "any civil office under the Authority of the United States" (1) "which shall have been created," or (2) "the Emoluments whereof shall have been encreased" during such term.
The debate on this issue in the Convention held in Trenton which produced our State Constitution of 1844 followed the same lines and resulted in a substantially identical provision. The Constitutional Convention of 1947 adopted the Article from the Constitution of 1844 with only a few changes in wording not here significant.
There appear to be only three out-of-state cases in which the issue of eligibility has been raised under circumstances substantially similar to those before us. In each case a statute providing for a salary increase stipulated that it should not apply to a legislator-appointee during the balance of his legislative term. That is, of course, the same situation we have here. In each case the court found the appointment to be in violation of the state constitution. Anderson v. Chapman, 86 Wash. 2d 184, 543 P. 2d 229 (1975); State ex rel. Fraser v. Gay, 158 Fla. 465, 28 So. 2d 901 (1947); State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So. 2d 589 (1946).
The members of the Court mentioned above would therefore hold, as did the trial judge, that the nomination contravenes N.J. Const., Art. 4, § 5, para. 1.
SULLIVAN, J. (concurring). I am in complete agreement with Part I of the majority opinion which holds that the provision in the statute increasing judicial salaries which purports to exclude a legislator, during the term for which
he was elected, from the salary increase should he be appointed to judicial office during such term, is a class of special legislation interdicted by N.J. Const., Art. IV, § 7, par. 9(5). Once this provision falls, the Wiley nomination runs afoul of N.J. Const., Art. IV, § 5, par. 1 which, inter alia, prohibits any legislator during the term for which he was elected, ...