The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1895-09-10
EW'.rEnSEY JUDICIARY.
Tho County ElaotIve Act Declared Uncon-
stitlItionnL

Tho County Elective Act Declared Uncon-
sti taitionnL
Trenton, N j, Sept 9,-The county
Judiciary law was declared unconstitu-
taonal by the supreme court this morn
ing. Judge Van Syckle filed a long opin-
ION, of which the following is the sylla-
bus:
Farst--The legislature may reduce the
number of judges of the court of COM
mon pleas 10 amy nrrmb,,r less than five,
and may prescribe the qualifications of
the judges.
Second-The legi stature cannot abol-
ish the court of common pleas; but II it
IS conceded that it has such power then,
so long as the jurisdiction which resides
in that court is exercised for the benefit
of the people, 1t must he exercised by
judges appointed as heretofore. 1t can
not be bodily transferred to be- exercised
by judges not appointed as the consti-
tuition prescribes.
Third-The Legislature cannot, by adj
ding to or subtracting from the duties
of given office, by uniting one office
to another, acquire the Right to- appoint
the officer in q manner other than that
prescribed by the supreme law.
Fourth--The act of June 1885, known
as the county court law, is unconstitu-
tional
The opinion, which is written by Judge
Van SICKLE, has these words written
at the end of the document: Justice
Lippincott concurs in this opinion; JUS
tice Magic will express his own views"
The case came BEFORE Judges Van
Syckle, Iippincott and Magic of the
supreme court on manttamus proceed
ings brought by Lay Judge Shalk OF rs
sex county against James t. Wrightson
of the same county, TO have the latter
restrained from having printed on the
official ballots this fall the names of the
county judges who would be nominated
in pursuance of the law which sought
to abolish the present court of common
pleas with their appointive LAW and lay
Judges, and provide for elective county
Judges to take their places. The su-
preme court judge recently announced
that no decision of the case would be
rendered until after election, but public
opinion was so pronounced against the
delay that they seem to have set to
work.
Judge Van Syckle in his opinion said
that the Engelman case, upon which
hhe counsel opposing Judge Shalk's suit
laid so much stress, did not in any way
involve the question of the constitu-
tionality of the court of common pleas,
but only bore on the constitutionality
of the act of 1885, which empowered a
s,,I t1r CHI In a
of quarter sessions. He said that there
was no question that the court of com
mon pleas may be altered in two re-
spects, namely: First as to the number
of it's Judges, and, secondly, as to the
qualifications of those judges. 1T is
admitted" he said, chat the legislature
may extinguish that court whenever, in
its discretion, it deems that the public
rood REQUIRES lit to be abolished; yet, in
nv Judgment, SO long as the court is
substantially in existence, the provis-
ions of the constitution that Judges of
The inferior courtof common pleas shall
4 be nominated by the governor and ap-
pointed by him, with the advice and
consent of the senate stands as an in
surmountable barrier to the election OF
these Judges by the people or to their
appointment in any other way than that
thus prescribed The question: there
fore, to be determined is whether &C
cording to- the rule to be applied to the
interpretation of the constitution, the
court Of common pleas has been constl-
Hutionally abolished by the county court
act"
Judge Van SICKLE then quotes a de-
cision of the New York court of appeals
in the case of Warren VS.. the People, in
which 1T was held that, where the con
stitution provides for the appointment
ito an office i'm particular manner, the
legislature has no power to create {
new office for the performance of tbs
same or the principal part Of the same
duties, and to direct the appointment tt
be made in another manner. He alst
quoted the case of the People VS., Ora
per, in which the New York court o
appeals held that "it is not enough t.
take the case out of this provision o
the constitution, that the names of thu
office existing when the constitution
was adopted are afterwards changed b,
an act of the legislature, or that thei
functions are colorably modified. TIL
constitution regards substance and no
mere FORM"