Winberry v. Salisbury

74 A.2d 406, 5 N.J. 240, 1950 N.J. LEXIS 180

• Court: Supreme Court of New Jersey
• Decided: June 27, 1950
• Status: Published

Opinions

The opinion of the court was delivered by

Vanderbilt, C. J.

The plaintiff brought suit in the Superior Court to expunge an alleged libel on him from a report of a grand jury on file with the county clerk of Middlesex County. The defendant Salisbury moved for summary judgment on the ground, among others, that the complaint did not state a cause of action and his motion was granted on May 25, 1949. Cn June 11th the trial court of its own motion modified the order for judgment by relieving the plaintiff from the payment of costs, this order being consented to in writing by the attorneys for the respective parties.

On July 26th the plaintiff served a notice of appeal, which was acknowledged “without prejudice to the claim that the same was out of time.” The defendant thereupon moved in the Appellate Division of the Superior Court to dismiss the appeal. That court granted his motion, holding that by the phrase “subject to law” in Article VI, Section II, paragraph 3 of the Constitution of 1947, which directs that “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts,” “The Legislature is given the final word in matters or procedure; it may expressly or by implication nullify or modify a procedural rule promulgated by the Supreme Court or it may take the initiative in a matter of procedure when it deems that course wise.” 5 N. J. Super. 30, 34 (App. Div. 1949). In the absence of legislative action the Appellate Division held that Rule 1:2—5 (b) and Rule 4:2-5, limiting the time for an appeal from a final judgment of the trial division of the Superior Court to 45 days, prevailed over R. S. 2 :27-356, which permitted an appeal within one year after judgment rendered. Thus we have raised the meaning of the phrase “subject to law,” and it is urged on us that the question should be promptly decided in view of the recent passage of Chapter 171 of the Laws of 1950, authorizing an Advisory Committee on the Revision of Statutes to prepare a revision of Title 2, Administration of Civil and Criminal Justice, and Title 3, Administration of Estates, of the Revised Statutes, and related acts.

The phrase “subject to law” is not only ambiguous, but elliptical. No word in the law has more varied meanings than the term “law” itself. Nor is the phrase “subject to” crystal clear, for the phrase implies a limitation rather than a grant of power. It is argued by the plaintiff that “subject to law” means subject to statute law or legislation. If this Is what the Constitutional Convention intended, it would have been easy for it to say so. We must take the phrase as we find it and endeavor to ascertain its meaning in the light of the entire Constitution and of the intent of the people in adopting it. There can be no doubt in the mind of anyone familiar with the work of the Constitutional Convention or with the ensuing election at which the Constitution was adopted by the people that, along with the desire to strengthen the powers of the Governor and to amplify the powers of the Legislature, there was a clear intent to establish a simple but fully integrated system of courts and to give to the judiciary the power and thus to impose on them the responsibility for seeing that the judicial system functioned effectively in the public interest. Indeed, in the minds of many, if not a majority, of our citizens this was the primary reason for their desire for a new constitution.

If “subject to law” were to be interpreted to mean sub-, ject to legislation, it would necessarily follow that once the Legislature had passed a statute in conflict with a rule of court, the rule-making power of the Supreme Court would be fundus officio, for it would be intolerable to hold, as has been suggested to us, that after the Legislature has passed an act modifying a rule of court, the Supreme Court might in turn adopt a new rule overriding the statute, and so on ad nauseam. Such an unseemly and possibly continuous conflict between these two departments of the State Government could never have been contemplated by the people. And yet if “subject to law” means subject to legislation, any other construction of the rule-making power would be in conflict with the fundamental rule of constitutional construction that unless the context clearly requires otherwise, a constitutional grant of authority is to be interpreted as a continuing power. As one studies the Judicial Article of the Constitution and its carefully designed provisions for an efficient judicial organization with unusual powers of effective administration, it is evident that the people of this State thought of the rule-making power in the Supreme Court as a continuous process. In this connection it is significant to note that neither the Constitution of 1776 nor that of 1844 contained any provisions whatsoever as to rule-making, admission to the practice of law, the discipline of the bar, an administrative head of the courts, or the assignment of judges. All of these powers are necessarily of a continuing nature if the judges are to be held responsible for the functioning of the courts. It is inconceivable that the people granted continuing power to the courts in all these respects but withheld it with reference to rule-making, which is quite as essential to the operation of an integrated judicial establishment as are any of the other powers.

Article YI, Section II, paragraph 3 of the new Constitution not only gives the Supreme Court the rule-making power, but it imposes on the Supreme Court an active responsibility for making such rules—“The Supreme Court shall make rules.” If there were any doubt as to the continuous nature of the rule-making power, such doubt would be resolved by this imposition of the positive, obligation on the Supreme Court to make rules for all the courts.

An analysis of all of the pertinent provisions of the Constitution serves to convince us that the phrase “subject to law” cannot be taken to mean subject to legislation. In the first place, by Article XI, Section IV, paragraph 5 of the Constitution “The Supreme Court shall make rules governing the administration and practice and procedure of the County Courts” this provision is clear and unambiguous; the rule-making power of the Supreme Court with respect to the county courts is absolute and unrestricted. It does not require an active imagination to anticipate the chaotic situation which would prevail in every court house in the State with the Supreme Court promulgating the rules for the county courts and the Legislature dictating the practice and procedure of the Superior Court. One of the objectives of the people in adopting the Constitution was to provide for uniformity as well as simplification and flexibility in the work of the courts. This objective would be frustrated by any such dual exercise of rule-making power. Manifestly no such construction of the phrase “subject to law” should be accepted because of the unfortunate results which would inevitably flow therefrom unless no other rational meaning can be found for the phrase. Nor can it be said that the grant to the Supreme Court of the rule-making power with respect to the county courts was a constitutional accident. Article XI, Section IY, paragraph 5 of the Constitution was reported to the Convention by the Judiciary Committee as part of its report of the Judicial Article (I Convention Proceedings Record 146), and though it ultimately found its way into Article XI (Schedule) it was passed by. the Convention on the same day as the Judicial Article and in the original form in which it was presented to the Constitutional Convention by the Judiciary Committee (I Convention Proceedings Record 793).

In the second place the power of the Supreme Court with respect to the practice on proceedings in lieu of prerogative writs is likewise unrestricted; by Article YI, Section Y, paragraph 4 of the Constitution “Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court. * * *” But there are still other provisions in the. Judicial Article which would give the Legislature power with respect to the courts if “subject to law” means subject to legislation that clearly are inconsistent with the intention of creating an integrated judicial system. Thus by Article YI, Section III, paragraph 1, the judges of the Superior Court are empowered to “exercise the powers of the court subject to rules of the Supreme Court.” Could it conceivably have been intended by the people that the Legislature might, through the rule-making power, affect the power of the judges of the Superior Court ? Again, by paragraph 3 of the same section it is provided that each division of the Superior Court “shall have such Parts, consist of such number of Judges, and hear such causes, as may be provided by rules of the Supreme Court.” Is it consistent with all of the other provisions of the Judicial Article of the Coustitution, designed to create an integrated judicial establishment, that the Legislature should be construed to have the power to determine the number of parts of each division of the Superior Court, the number of judges in each part, and the causes that each division or part should hear? By paragraph 4 of the same section it is laid down:

“Subject to rules of tbe Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy. between the parties may be completely determined.”

If the Legislature may amend the rules of court, it may decide the extent to which the Law Division and the Chancery Division shall exercise the powers and functions of the other division, and it may control the degree to which legal and equitable relief may be granted in any cause. We think it may be safely said that no such thoughts were ever in the mind of any member of the Constitutional Convention or of any citizen who voted for the Constitution. And yet if “subject to law” means subject to legislation, such results might inevitably follow. The courts in some of their essential judicial operations, instead of being one of the three coordinate branches of the State Government, would have been rendered subservient to the Legislature in a fashion never contemplated by any.

What, then, is the meaning of “subject to law” ? The only interpretation of “subject to law” that will not defeat the objective of the people to establish an integrated judicial system and which will at the same time give rational significance to the phrase is to construe it as the equivalent of substantive law as distinguished from pleading and practice. The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in the courts, is a fundamental one that is part of the daily thinking of judges and' lawyers. Substantive law includes much more than legislation, it comprehends also the rights and duties which have come down to us through the common law. The phrase “subject to law” in Article YI, Section II, paragraph 3 of the Constitution thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of the substantive law as such. While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power.

The only contrary authority that has been cited to us is the statements contained in the Report of the Judiciary Committee of the Constitutional Convention. Thus, it said at pages 7 and 8 of its report:

“The third shortcoming of the existing judicial organization, and perhaps the most costly, is the total lack of business-like organization, coordination and supervision of the courts as a whole. A corollary feature of this condition is the practice of resigning responsibility for the formulation of practice and procedure to intermittent revision by the Legislature. * * •* This Court was given the power to make rules for administration, practice and procedure in all courts, subject to the overriding power of the Legislature with respect to practice and procedure.”

But this report of the Judiciary Committee, though' dated August 26, 1947, was not handed to the members of the Convention until August 28th, I Convention Proceedings Record 809, two days after the Judicial Article had been adopted by the Convention on August 26th, I Convention Proceedings Record 793. The report of the Judiciary Committee therefore cannot be deemed a part of the parliamentary history of the Constitution, for it was not known to and was not acted upon by the members of the Constitutional Convention in voting in favor of Article YI, creating a new judicial system. The report, moreover, while signed by all of the members of the Committee, concludes by saying, “Although the foregoing is the report of the Judiciary Committee, it is not necessarily to be inferred that the comments therein contained express the views of all members.” Thus not only was the report of the Judiciary Committee from which we hare quoted not before the Convention at the time that it acted on Article YI, but a search of the entire proceedings fails to disclose any debate on the meaning of the phrase “subject to law.” The chief debate on the Judicial Article was between the merits of the proposal submitted by the Judiciary Committee and another proposal submitted from the floor.

The phrase “subject to law” seems to have originated in the draft of a constitution submitted by the Constitution Revision Commission of 1942. There we find in Article Y, Section II, paragraph 3, the following provision:

“The Supreme Court shall make rules as to the administration of all the courts, and, subject to law, as to pleading, practice and evidence in all the courts.” (Report p. 46.)

But the report of the Commission made it abundantly clear that “subject to law” as used by it did not refer to legislation:

“The supreme court is given complete power (and responsibility) with respect to making rules a-s to administration, pleading, practice and evidence in all of the courts of the State.” (Report p. 24.)

Complete power and responsibility in the judiciary are concepts quite inconsistent with the notions of overriding legislation. A comparative study of the 1942 draft and of the 1947 Constitution will reveal the extent to which many of the provisions of the 1942 draft were accepted as the foundation of the work of the 1947 Constitutional Convention. The widespread use of the 1942 draft by the members of the Constitutional Convention is a matter of common knowledge. There was a peculiar reason for including “subject to law” in the 1942 draft. That draft, unlike our present Constitution, gave the Supreme Court rule-making power as to evidence. If its power to make rules as to evidence had not been made subject to law in the sense of substantive law, it .would have had the authority to alter the substantive law especially by making changes in the law of presumptions; hence the necessity for the limitation “subject to law.”

In the proposed Constitution of 1944 the rule-making power was prescribed by Article Y, Section II, paragraph 3, as follows:

“The Supreme Court shall make rules governing the administration of all the courts in this State. It shall have power, also, to make rules as to pleading, practice and evidence, which may be applicable to all of the courts in the State, and which shall have the force of law unless changed or abrogated by law.”

This proposal was entirely different from the- draft of 1943 and the Constitution of 1947. It gave the Supreme Court power over rules of administration, but provided a clear legislative veto of rules of pleading, practice and evidence. If it had been the intention in 1947 likewise to circumscribe the rule-making power of the Supreme Court, the language of the 1944 proposal, which was defeated at the polls by the people, could have been repeated. Instead the language of the 1943 draft was utilized and it carried with it the interpretation placed upon it by the Constitution Revision Commission of 1943 as giving the Supreme Court complete power and responsibility, a concept quite inconsistent with the idea of overriding legislation. Notwithstanding the rejection of the language of the proposed 1944 Constitution which would have emasculated the rule-making power of the Supreme Court, in 1948 the Legislature passed S-58, section two of which provided in part that the Rules promulgated by the Supreme Court, effective September 15, 1948, “shall regulate practice and procedure in the courts established by the Constitution until modified, altered or abrogated by law.” The bill was vetoed by the Governor who returned it to the Legislature on October 30, 1948, stating that in his opinion this provision was unconstitutional, “for it would, if effective, completely deprive the Supreme Court of any further rule-making authority * * 71 N. J. L. J. 389 (November 4, 1948). While the constitutionality of legislation is ultimately a question for judicial determination, the opinion of the Governor on such questions is to be given consideration by us.

Whatever confusion there may be as to the nature of the rule-making power stems from an oversimplification of the doctrine of the separation of powers. Too many people think of the Legislature as a body that has as its sole function the making of laws for the future, the Governor as a chief executive who merely enforces the law, and the courts as having power only to decide cases and controversies. While these notions are true so far as they go, they are quite insufficient to explain the complicated operations of the three great branches of government, either historically or analytically. Thus, while the primary function of the courts is to decide cases and controversies properly brought before them, the Legislature also has the power to adjudicate as to the qualifications of its members, their deportment while in office, as well as in impeachment proceedings on the misdemeanors of all state officers, and the Governor has the right to try any officer or employee in the Executive Department on charges after notice and an opportunity to be heard, and a host of controversies are decided in administrative tribunals which are not courts but which are located in the Executive Branch of the government. Thus, adjudication is not exclusively a judicial function, Mulhearn v. Federal Shipbuilding and Dry Dock Company, 2 N. J. 356, 364 (1949). Similarly, both the Legislature and the courts exercise what seems to be the executive function of enforcing the law when they punish recalcitrants for contempt, as does the Supreme Court likewise when it disciplines members of the bar. The courts, moreover. often perform non-judicial functions as legislative agents which otherwise would find their place in the Executive Branch of the State Government, Massett Building Co. v. Bennett, 4 N. J. 53, 56 (1950). These powers of enforcing the law, while they may seem at first blush to be executive in nature, are essential to the maintenance of the integrity of the legislative and judicial branches of the government. In like manner the Governor when he issues proclamations and exercises his ordinance power generally, the administrative agencies when they exercise rule-making power may seem to be exercising legislative power, but such powers, at least in the case of the Governor and the courts, are inherent and essential to the performance of the primary functions for which their offices are created in the Constitution. Not only are these seeming exceptions to an oversimplified statement of the doctrine of separation of powers necessary as a matter of logic and analysis of governmental activities, but they have centuries of historical justification. Not only here but elser where throughout the common-law world they are recognized, originally solely by force of tradition and common law but now in most instances as a result of express constitutional limitations.

Eules of court for controlling practice and procedure date back to the Middle Ages. They were the settled means of effecting changes and improvements in procedure, which had its origin in custom. That rules of court did not continue to be the exclusive means of developing practice and procedure in the courts is due to the gradual growth in England of the doctrine of parliamentary supremacy culminating in the overthrowing of the Stuarts and the “Glorious Eevolution of 1689/’ and in the United States to the legislative hegemony in both the Federal Government and the states down to the Civil War, abetted by the ultraconservatism of the courts and the legal profession in refusing to simplify the ultrafoxmal, cumbrous, dilatory and expensive procedure inherited from the Middle Ages. These factors made possible, indeed, necessitated a century ago the adoption in New York and elsewhere of the Field Code of Civil Procedure. The Field Code, like every other procedural code, however, was subject to the inherent weakness that it was susceptible to perennial and multitudinous amendments, many of them passed to overcome the supposed defects of the Code in individual cases. The Code,

too, had the defect of all legislation in being rigid and inflexible as compared with the elasticity and adaptability of rules of court. In many states, therefore, the codes have in the course of a century become far worse than the medieval maze which they superseded. But it must not be thought from this brief recital of the course of procedural history in this country that the courts generally abdicated their power to make rules governing practice and procedure. Thus, in 1792 we find Chief Justice Jay stating that the Supreme Court of the United States “considers the practice of the courts in King’s Bench and Chancery in England as affording outlines for the practice of this Court and that they will, from time to time, make such alterations therein, as circumstances render necessary.” Case of Hayburn, 2 Dallas 411, 1 L. Ed. 437. Eules of procedure were promulgated by the Supreme Court of New York in 1799, and the exercise of judicial power of rule-making continued there until the adoption of the Code of Civil Procedure where they are enforced today. New Jersey never adopted a code of civil procedure but instead short practice acts, and the exercise of the rule-making power here has been continuous, covering practice and proeedrire on a broad scale, so much so that our judges and lawyers would refer to the rules a hundred times to every time they looked at the Practice Act or the Chancery Act. The federal courts have led the way in the development of modern rule-making; first, in 1842 with equity and admiralty rules, then, in 1898 with bankruptcy procedure, and in 1938 with rules of civil procedure, and in 1946 with rules of criminal procedure. The trend throughout the country has been to give the courts the power to regulate their own procedure and administration and then to hold them responsible for results. The reasons for this trend are obvious. Eules of court are made by experts who are familiar with the specific problems to be solved and the various ways of solving them. In this State under the new Constitution the Supreme Court took the course of designating the outstanding authorities on procedural law in the bar of the State to prepare a tentative draft of proposed rules of court, at the same time calling on the bar for suggestions. The tentative draft was distributed to the judges and lawyers of the State, who submitted hundreds of suggestions, all of which were examined by the experts appointed by the Court, and then appraised by the Court itself before'the Rules of Court were finally promulgated by the Court on September 15, 1948. The rule-making process here has become a continuous one, the Court calling each spring for suggestions from the bench and bar and especially from committees appointed by the state and county bar associations. Their suggestions are considered every year, preliminary to action by the Supreme Court, at the annuual Judicial Conference made up of the judges, the legislative leaders, the Attorney General and the county prosecutors, the officers and trustees of the State Bar Association, the president of each of the county bar associations, and 60 delegates from the county bar associations, one representative from each law school in the State on the approved list of the American Bar Association, the Administrative Director of the Courts, and ten laymen appointed by the Chief Justice. Thus, in a very real sense may it be said that our Rules of Court are the product of the joint efforts of the bench and bar of the State, with the Supreme Court necessarily making the ultimate decision as to the contents of the rules. Rules of court, moreover, have the great advantage that not only are they made by experts, but they are interpreted and applied by judges who are sympathetic with them. Changes may be made whenever occasion may require without waiting for stated legislative sessions and without burdening already overworked legislators. Einally, procedure may be made subsidiary, as it should be, to the substantial rights of the litigants. The courts may avoid the snarls of procedural red tape and concentrate on the substantive questions at issue. These views summarized here are expressed at length in articles written by two of the greatest legal scholars of the first half of the twentieth century, one by Dean Roscoe Pound on “The Rule-making Power of the Courts” in 12 A. B. A. J. 599 (1926), and the other by Dean John H. Wigmore on “All Legislative Rules For Judiciary Procedure Are "Void Constitutionally” in 23 III. L. J. 276 (1928). Our Constitution is one of the first to incorporate the rule-making power expressly along with principles of efficient judicial management. Very wisely, too, the Constitution reposed the rule-making power for all of the courts in one court, for in this State before the new Constitution each court exercised the rule-making power for itself, and the rules collectively were often conflicting and always unnecessarily complicated, results which are to be sedulously avoided in the interests of uniformity, simplicity and adaptability. Even with this power vested in the Supreme Cortrt the tendency to deviation is difficult to restrain; see Kozoroski v. Monta, 3 N. J. Super. 242, 244 (App. Div. 1949), and In re Pfizer, 8 N. J. Super. 6, 10 (App. Div. 1950), where powers are claimed for the Appellate Division that are not available to any other court including the Supreme Court.

We therefore conclude that the rule-making power of the Supreme Court is not subject to overriding legislation, but that it is confined to practice, procedure and administration as such. In the present case Rules 1:2-5 and 4:2-5 apply, Westervelt v. Regency, 3 N. J. 472 (1950). The appeal here was not taken within 45 days of the original order for judgment of May 25, 1948. The question remains as to whether or not the order of June 11, 1949, entered on the court’s own motion, relieving the plaintiff from costs extends the time for filing an appeal for 45 days thereafter. This order was consented to by the attorneys for each party and it is therefore not appealable. Pemberton’s Case, 40 N. J. Eg. 520, 530 (Prerog. 1885). It is also an order made for the plaintiff’s benefit, and therefore the change was clearly immaterial as to him, Newark v. Fischer, 3 N. J. 488, 492 (1950).

The judgment appealed from is affirmed but without costs.