Opinion
01-17-1930
In re VICE CHANCELLORS.
(Syllabus by the Court.)
In the matter of the appointment of Vice Chancellors, their powers and duties.
WALKER, Chancellor. So many persons have of late years observed that the Legislature has control of the manner of appointing Vice Chancellors, that the Chancellor, in whom the power has always been lodged, can be divested of that power and that it can be bestowed upon the Governor, with or without the consent of the Senate; nevertheless, no real attempt has been made to do this; but, the suggestion being so often put forth, it seems that the facts have only to be stated to show that the Chancellor alone is the single functionary who may constitutionally make such appointments.
It is sometimes said that as the Governor appoints the Associate Justices of the Supreme Court, and as the office of Vice Chancellor is created solely by act of the Legislature, therefore the Legislature can designate the appointing power; but this is fallacious, as will hereafter appear. As much as it may be desired that the appointing power be lodged in the Governor by and with the advice and consent of the Senate, it will require a constitutional amendment to accomplish it.
The reason why the Governor appoints the Justices of the Supreme Court is that the Constitution of 1844 requires it. It provides in article 7, § 2, par. 1, that the Governor shall appoint, by and with the advice and consent of the Senate, the "Chancellor" and the "Justice of the Supreme Court." And that, of course, includes the Chief Justice. At the time of the adoption of that Constitution the Supreme Court already consisted of five justices,—a chief and five associates. Donohue v. Campbell, 98 N. J. Law, 755, 762, 121 A. 700; In re Hudson County (N. J. Err. & App.) 144 A. 169. Up to the time of theadoption of the Constitution of 1844 and after the passage of Governor Franklin's ordinance, the Court of Chancery consisted of the Governor, but was made by that instrument (Constitution of 1844) to consist of a single individual appointed by him, as shown above.
There are two ways in which this matter may be exploited, one is, to take the present posture of the court, trace it back to the beginning; the other, to go back to the beginning at once and follow it down to the present time. The latter is the more logical, so I shall begin with the institution and construction of the court.
New Jersey consisted of two provinces, Bast and West Jersey from 1676 until 1702, when each being dissatisfied with the government thereof, they surrendered the two provinces of Bast and West Jersey to Queen Anne, April 15, 1702. Grants and Concessions, Learning and Spicer, p. 609. The Queen accepted the surrender (Ibid. p. 617), and appointed Edward Hyde, Lord Cornbury, to be Governor of Nova Caesarea or New Jersey (Ibid. p. 647), namely, the divisions of East and West Jersey, which had thought fit to reunite into one Province and settle under one entire government. The Queen issued her commission to his Lordship December 5, 1702. Ibid. p. 647. The commission provides as to courts, etc. Ibid. p. 651. No Court of Chancery had been created in either province of East or West Jersey, although in the former, equitable principles had been administered in the Court of Common Right; and it is said that the law was equitably administered in the courts of West Jersey; but after the surrender the courts of the United Province were established by ordinance (by and with the advice and consent of the Council) of the royal Governor and later royal Governors. The Courts of New Jersey, Clevenger and Keasbey, p. 81 et seq. Full power and authority was given to Lord Cornbury by his commission as Governor, by and with the advice and consent of the Council, to erect, constitute and establish courts of judicature in the Province for the hearing and determining of all causes, according to law and equity. And similar authority was given all succeeding governors. Field, Provincial Courts of New Jersey, p. 41. In 1704 Lord Cornbury adopted an ordinance constituting a Supreme Court of Judicature (Ibid. p. 44), which is our Supreme Court today; and in 1705, he passed an ordinance by and with the advice and consent of the Council, for the erection and establishment of a High Court of Chancery in the Province of New Jersey. Ibid. p. 113. The pertinent parts are:
"An Ordinance
For the erecting and establishing a High Court of Chancery, in Her Majesty's province of Nova Caesaria, or New Jersey, in America; whereas, it is absolutely necessary that a Court of Chancery be established in this province, that the subject may find remedy in such matters and things as are properly cognizable in the said court, in which the common law, by reason of its strict rules, cannot give them release, His Excellency Edward Lord Viscount Cornbury, Captain General and Governor as aforesaid, by and with the advice and consent of Her Majesty's council for this province, * * * doth ordain and declare, and it is hereby ordained and declared, that His Excellency Edward Lord Cornbury, or the Governor or Lieutenant Governor for the time being of this province, and Her Majesty's council for this province, * * * or any three of them together, with the Governor or Lieutenant Governor, shall be, and are hereby empowered to be, the High Court of Chancery of this province, and, as such, to hear and determine all causes and suits in the said court, which, from time to time, shall come before them, in such manner or as near as may be according to the usage and custom of the High Court of Chancery in the kingdom of England; * * * it is hereby ordained, that there shall be commissionated and appointed, during pleasure, two masters of the said court, a Register, who shall also be Examiner and Purse bearer or seal bearer and sealer of writs, * * * two clerks and one seargant-at-arms and one messenger, and no other officer or officers whatsoever," etc. Appendix, 19 N. J. Eq. pages 578, 579; Field, Provincial Courts of New Jersey, p. 113.
This ordinance continued in force until Governor Franklin's administration; although Governor Hunter is said to have sat alone as Chancellor without the Council in 1718, claiming the right to do so, but no ordinance to that effect appears to have been adopted. Courts of New Jersey, Clevenger and Keasbey, p. 121. This was thought an undue exercise of authority, but met with the approbation of the King, and it appears that the Governor continued to act as Chancellor thereafter until 1770 (Ibid. p. 121) from which time the Governor was Chancellor alone, until the Constitution of 1844 created a separate Chancellor to be appointed by the Governor, and since then we have had but a single judge as Chancellor. Ibid. p. 121.
In that year (1770), by virtue of the powers and authority given him in his commission, and with the advice and consent of the Council, Governor Franklin adopted an ordinance in reference to the Court of Chancery, the pertinent parts of which are as follows:
"An Ordinance
For the better establishing a High Court of Chancery in the province of New Jersey, and for appointing the Chancellor or Judge thereof, by His Excellency William Franklin, Esq., Captain General, Governor, and Commanderin-Chief, in and over his Majesty's provinceof New Jersey and territories thereon depending, in America, and Vice Admiral of the same, &c, in council, this twenty-eighth day of March, in the tenth year of his Majesty's reign, annoque domini, one thousand seven hundred and seventy.
"Whereas, There always hath been a Court of Chancery held in the province of New Jersey, and the same at present requires regulation, His said Excellency, the Governor, by and with the advice and consent of his Majesty's council for the said province, and by virtue of the powers and authorities to him given by his Majesty's letters patent, under the Great Seal of Great Britain, bearing date the ninth day of September, in the second year of his present Majesty's reign, hath thought fit to ordain and declare, and by and with the advice and consent of his said Majesty's council, doth hereby ordain and declare, that his said Excellency William Franklin, Esq., is hereby constituted and appointed Chancellor and Judge of the High Court of Chancery or Equity in this colony, and impowered to hold the said court, and in the same to hear and determine all causes, from time to time, and in such manner as heretofore hath been usual, and, as nearly as may be, according to the usage and custom of the High Court of Chancery in that part of Great Britain called England. * * *
"And it is hereby further ordained and declared, that his said Excellency William Franklin, Esq., shall and may, and he is hereby authorized and impowered, from time to time * * * to nominate, constitute, appoint, and commissionate so many masters, clerks, examiners, registers, and other necessary officers as shall be needful to the holding the said court, and doing the business therein," etc. Appendix, 19 N. J. Eq. pages 580, 581, 582; Field, Provincial Courts of N. J. pp. 124, 125; Griffith's Register, N. J. p. 1183.
The ordinance of Governor Franklin is clearly intended to prescribe the only rule which should govern the Court of Chancery, and therefore repeals Governor Cornbury's ordinance. Said the Supreme Court in O'Neill v. Johnson, 99 N. J. Law, 317, 318, 123 A. 538: "Every statute must be considered according to what appears to have been the intention of the Legislature, and even though two statutes relating to the same subject be not, in terms, repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the earlier act." And the Court of Errors and Appeals in State v. Cortese, 104 N. J. Law, 312, at page 315, 140 A. 440, 442, cited the case of O'Neill v. Johnson, supra, with approval; and said that it is "true that every statute must be considered according to what appears to have been the intention of the Legislature * * * and the later statute is clearly Intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the earlier act." The enacting power as to these ordinances was different, the Governor and Council under the Commissions of Lord Cornbury and Governor Franklin, from that of the Legislature of today, but the principle is identical. The ordinance of Governor Franklin now stands as the organic law of the Court of Chancery, unaltered in any particular.
And this same ordinance of Governor Franklin is the one which still continues in full force and effect; it gives the Court of Chancery its powers and the Chancellor his prerogatives,—and one of the latter is "to * * * appoint * * * so many officers as shall be needful to the holding of the said court, and doing the business therein."
Of course the wording of the two ordinances is somewhat different but the subject matter of the first is covered by the second. The only thing expressed in terms in the first which is not named in the second is the provision that there shall not be more than two counsel for each side allowed in any case (a rather trifling matter of practice); but in the last ordinance is a provision that the Chancellor make rules, orders and regulations for carrying on the business of the court, etc. This includes the power to prescribe the number of counsel that may take part in any cause or proceeding. And I therefore repeat that the later ordinance covers the whole ground of the first one, and in law operates to repeal it; but, if this be not so, then both ordinances stand together; and any provision of the latter not found in the former of course obtains and is enforceable. This is settled law and needs no citation of authority to support it.
And as the Chancellor possesses the power of appointment of the officers in the Court of Chancery it cannot be taken from him and be bestowed on any other official. It is vouchsafed to the Chancellor by the present Constitution, as will hereafter appear. As well might the powers of the other constitutional officers be taken from them and be given to the Chancellor as the power to appoint Vice Chancellors (who are officers of the court), be taken from the Chancellor and be bestowed upon any other public official.
Governor Franklin continued in office until 1776. On July 2nd of that year the first Constitution of New Jersey was adopted, and provides in article 8, that the Governor shall be Chancellor. On October 2, 1776, the Legislature enacted that the several courts of law and equity of New Jersey should be confirmed and established, and continued to be held with like powers under the present government as they were held at and before the Declaration of Independence. Paterson's Laws, p. 38; Penna. R. R. Co. v. Natl. Docks & N. J. J C.Ry. Co., 54 N. J. Eq. 647, 652, 35 A. 433, Court of Errors and Appeals.
The Constitution of 1776 continued to be the organic law of New Jersey until the adoption of the new Constitution of 1844, the one which is now the organic law. That charter in Art. 6, § 1, provides that the judicial power shall be vested in a Court of Chancery, among others. And § 4 provides that the Court of Chancery shall consist of a Chancellor. And in Traphagen v. West Hoboken, 39 N. J. Law, 232, it was held, at page 235, that by force of Art. 6, § 1, of the new Constitution the nature of the Supreme Court can be altered only by a modification of the Constitution itself. Under this constitutional guarantee the powers which inhered in the court at the formation of the Constitution must be unassailable by legislation. And in Harris v. Vanderveer's Ex'r, 21 N. J. Eq. 424, Chief Justice Beasley, speaking for the Court of Errors and Appeals, at page 427, said: "It is entirely clear then, that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts. To this extent, it seems to me, the subject is too plain for discussion."
In view of these decisions it cannot be said that the Legislature has the power to deprive the Chancellor of any of the prerogatives enjoyed by him under the Constitution of 1844; and especially not in view of Art. 10, § 1, thereof, in which it is further ordained that the several courts of law and equity, except as therein otherwise provided, shall continue with the like powers and jurisdiction as if this Constitution had not been adopted. See Harris v. Vanderveer's Ex'r, supra, 21 N. J. Eq. page 426; and, be it remembered, it is not therein otherwise provided.
By 1870 the business of the Court of Chancery had outgrown the ability of the Chancellor alone to conduct it, and it became necessary to devise some means whereby relief could be afforded. There was no power given by the Constitution to create additional judges in chancery, who would be independent, like the Associate Justices of the Supreme Court, and the Legislature was therefore powerless to create the office of Vice Chancellor and constitutionally clothe the Governor with the power of appointment by and with the advice and consent of the Senate, and give to the Vice Chancellor the powers of an independent judge, so that he could make his own orders and decrees in the court; but it could constitutionally give the power of appointment to the Chancellor, and this was done.
The Chancellor in office at the time was Abraham O. Zabriskie. He is known to have consulted Chief Justice Beasley, who was a leading lawyer of his day and generation; also Henry C. Pitney, a leading lawyer of this State, and afterwards Vice Chancellor; and those three eminent men evolved the scheme of creating a Vice Chancellor, and the Legislature then passed the act following that plan, creating the first Vice Chancellor, P. L. 1871, p.127. The pertinent parts are as follows: That there shall be a Vice Chancellor, who shall be appointed by the Chancellor and commissioned by the Governor under the Great Seal of the State, and who shall continue in office for seven years from the date of the commission. The present act concerning the number of Vice Chancellors is to be found in P. L. 1921, p. 470; Comp. Stat. Cum. Supp. Vol. 1, p. 267, § 33—95, and provides that there shall not be more than ten Vice Chancellors, who shall be appointed by the Chancellor and commissioned by the Governor under the Great Seal of the State, and continue in office for seven years from the date of commission.
The present Chancellor, In re Thompson, 85 N. J. Eq. 221, said at page 260, 96 A. 102, 118: "Thus it clearly appears that the intention of the Legislature in creating the office of Vice Chancellor was to authorize the Chancellor to appoint a high master of his court by a name appropriate to the dignity and importance of the office, with compensation to be provided by the state commensurate with the services to be performed by those functionaries. This was called for by the great increase in the population and business in the state and the consequent increase in the volume of litigation in the Court of Chancery, which outgrew the power of the Chancellor to dispose of it alone, and the disposition of which by masters, for the meager compensation allowed those officials, was entirely disproportionate. The Legislature has, with wise liberality, as was remarked by Chancellor Magie in Gregory v. Gregory [67 N. J. Eq. 7, 58 A. 287], increased the number of Vice Chancellors from time to time as occasion has imperatively required, and has provided for advisory masters to relieve the congestion of the court. The matter of providing proper compensation * * * in the Court of Chancery was the main, if not the only, purpose of the act providing for the appointment of Vice Chancellors, as their judicial powers are derived solely from the court, and not from the Legislature. The policy of New Jersey is to administer justice at its own expense. And this seems to be the policy of all enlightened countries."
The reason for requiring the commission to be issued by the Governor to a Vice Chancellor, is the constitutional provision that the Governor shall grant, under the Great Seal of the State, commissions to all such officers as shall be required to be commissioned. Const., Art. 5, par. 6.
In Gregory v. Gregory, 67 N. J. Eq. 7, at page 10, 58 A. 287, 288, Chancellor Magie said: "The introduction of Vice Chancellors into our system of chancery jurisprudence arose from legislation based on the ancientright of the Chancellor to call upon the masters of his court for their advice as to his action in causes and proceedings pending before him. When that legislation was first adopted, the business of the court had outgrown the power of the Chancellor to dispose of alone. For the purpose of enabling the court to deal with the increasing business therein, the Legislature gave authority to the Chancellor to appoint an officer, to be called a Vice Chancellor, to whom he might refer causes for trial, and who might try the causes thus referred upon evidence orally taken, and was required to report to the Chancellor his opinion, and advise what decree should be made therein. As the business of the court still further increased, the Legislature, with wise liberality, from time to time has authorized the appointment of additional Vice Chancellors, and by this system the Court of Chancery has practically been enabled to keep pace with its business. The utility of the system has been established in its existence of over 30 years, and its recognition by all departments of the state government, executive, legislative, and judicial, has given it a sanction beyond dispute or question." It has now existed for upwards of fifty-eight years.
In re Hudson County, 144 A. 160, the Chancellor, speaking for the Court of Errors and Appeals, at page 174, said: "There is another doctrine which is dispositive of the case sub judice. It is that of practical, contemporaneous construction. Said Chief Justice Gummere, speaking for this court in Com. Roof. Co. v. Riccio, 81 N. J. Eq. 486, at page 488, 87 A. 114, 116: 'Whenever there is a debatable question as to the proper construction of a statutory provision, the contemporaneous and long continued exposition exhibited in the usage and practice under it requires the construction thus put upon it to be accepted by the courts as the true one. State v. Kelsey, 44 N. J. Law (15 Vr.) 1; Fritts v. Kuhl, 51 N. J. Law (22 Vr.) 191, 200, 17 A. 102; McNeal Pipe Co. v. Lippincott, 57 N. J. Law (28 Vr.) 540, 31 A. 399.'"
The ordinances, constitutions, statutes and decisions referred to show that the matter was settled from the outset, and that there never has been any serious debatable question of proper construction of the act or acts creating the office of Vice Chancellor.
The Legislature clearly recognizing the fact that a Vice Chancellor could only be appointed by the Chancellor alone, in 1903 caused a constitutional amendment to be submitted to the people providing that the Vice Chancellors should be appointed by the Governor, by and with the advice and consent of the Senate, and making them independent judges in chancery, as the present Constitution makes the Associate Justice of the Supreme Court independent judges of that tribunal. And this action clearly recognized the necessity of amendment to clothe the Governor with power of appointment of Vice Chancellors and the Senate with power to confirm them. That amendment was defeated. In 1909 another amendment to the Constitution was submitted to the people. It created one Supreme Court with three divisions,—appeals, law and equity,—and it made the judges of the chancery division constitutional officers, with power to exercise the jurisdiction of the court. And it provided for appointment by the Governor, by and with the advice and consent of the Senate, the same as the first amendment. It was defeated also. These defeats are conceded to have been due to political conditions, and not to the amendments themselves. It may well be that the Vice Chancellors should be constitutional officers as such, appointed by the Governor by and with the advice and consent of the Senate, as is provided by the Constitution in the case of Associate Justice of the Supreme Court; with power in the Vice Chancellors to exercise the jurisdiction of the Court of Chancery. But this cannot lawfully be done except by constitutional amendment, as stated.
This view, namely, that the Vice Chancellors should be constitutional officers as such, to be appointed by the Governor, etc., is entertained, I think, with practical unanimity by the bar of this State and by laymen who have devoted thought to the subject. It may some day be written into the Constitution.
That the Vice Chancellors as now constituted, that is, appointed by the Chancellor (within their respective spheres and jurisdictions as head masters of the court and as advisers of the Chancellor), are constitutional officers, is perfectly apparent.