The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1897-03-02
LAID TO REST
Court of Errors and Appeals
Knocks Out the Wooden
Judges for Keeps.
JUSTICE DIXoN's OPINION
All Claims of Unconstitutionality
Brushed Away.
JUSTICE DIXON's OPINION
speeta, to the jersey Cstu nx,es

TRENTON, March 2. 1S97.-Justiee Dix
on wrote opinion of the Court of Errors
and Appeals in the appeal from the de-
clsion of the appeal from the Supreme
Court in the case of John Kenny ~relator,
v. Robert S.. Hudspeth, which was for the
latter to recognize the FORMER as Lay
Judge of the Hudson County Courts. The
Supreme Court judgment was affirmed
The syllabus says:-"If final Judgment
be rendered on a demurrer to an alterna-
tive writ of mandamus, a writ of error
VIII lie. Under the Constitution of this
State, as conducted in the light of the
uniform and long continued practice of
all departments of the government. the
Legislature has the power to reduce the
number of the Judges of h Court of
Common Pleas, whenever, in its cpin-
ion, the public good requires it,"
The merit of the question decided be-
low Is whether the relator was entitled
TO exercise the functions of a Judge of
the Court of Common Pleas in the County
of Hudson. The question turns upon the
validity of the act of March &c, 1896, which
provides for but one Judge. Thu relator
contended that under the Constitution of
t1hhS l1lS LcSlSidlui6 q III ROWS1 "
reduce the number of the Judges of the
Court, and therefore the act rs invalid.
Article six, section. one, of the Constitu-
ton expressly authorizes the Legislature
to alter or abolish this Court, apd, of
course, due effect must be given to these
words. Indisputably. the abolition of
the Court must end the functions of the
Judges, and If the Legislature should ex-
ert it's power to abolish the Court, there
could not remain five or any persons au-
thorized to act as Judges thereof. But the
alteration of the Court need involve no
such -nsequence The power to alter
the Court could have reasonable scope.
without including the power to change the
number of Judges. For a period OF forty
years, beginning shortly after the adop-
ton of the Constitution, the Legislature
claimed the power to alter the number OF
Judges. and to determine who shall COM
pose the Court of Common Pleas.
Not only have the Executive and
Judicial departments acquiesced In this
claim, but whenever the matter has been
received their sanction. Thus. IN 1879, an
amendment of the Constitution trans
ferred the power OF appointing the Judges
Senate, and since that time he has ap-s
pointed. not one every year, but so many
as the statutes required and since the
the Justices of the Supreme Court have
sat as members of the Common Pleas un-
der his legislative authority only, and
whenever questions as to the composition
of the Court of Common Pleas have been
raised, the higher courts have always had
stitution. for their solution. Thus every
department of the government, for more
than a generation. gathered from the Con-
the Legislature power to alter the Court
of Common Pleas in the respects stated.
It being continued so long. It must be re-
garded as settling the meaning of that in
strument In clauses which are of them
selves somewhat contradictory.
1t is further insisted that even if this
legislative practive has been to retain the
judges in office until their terms ended by
lapse Of time, the act of 1895 was unwar-
ranted IN its attempt to deprive the judges
OF their functions before their prescribed
terms had expired.
But in this position due regard is not
given to the force of the usage. Its proper
effect is to define the scope Of the clause
which empowers the Legislature to alter
the court. 20 as to make it inclusive Of
Judges. II we then ask, when may such
an alteration of the court take place, the
s woers ssrt the constitution furnish the an
court as the public good shall require"
Such words, annexed to a legislative
absolute authority to determine when its
exercise shall take effect. If the Legisia- |
fure enacts that the change shall occur |
at once, the courts cannot adjudge sthatit
occur only as pending terms ex-|
pre- The fact that heretofore the Leg
islature has thought the public good re- !
of judges. only in consonance with Inc |
reasonable expectations of the then In |
cannot prevent the Legislature
to the present requirements of the public !
service, nor confer upon the courts any
tight to supervise the discretion OF. the