dissenting. The Court today invalidates the appointment by the Governor, confirmed by the Senate, of an Associate Justice of the Supreme Court of New Jersey. It thus overthrows an action of the executive and legislative branches of government. I consider that course wholly unnecessary and constitutionally unwarranted and intrusive and I respectfully dissent from the judgment of the Court.
The facts and procedural background are well and adequately stated in the opinion of the majority. To it might only be added a reference to the agreement of the senatorial plaintiffs that the appointment, per se, is unexceptionable in *309its quality, from the standpoint of the ability of mind and integrity of character of the appointee.1 Only the caveat to its constitutionality is advanced in derogation of the appointment. Hence the presumptive regularity of the challenged appointment is magnified by that factual concession of its intrinsic propriety, leaving in residue only the question of its constitutionality. This important point, implicating the separation of powers which is inherent in our system of government,2 invokes the most careful and circumspect scrutiny.
Proceeding to the examination of that question, I first note the constitutional and statutory provisions upon which the trial court rested its decision invalidating the appointment of Senator Stephen B. Wiley to be a member of this Court. The 1974 statute increasing the salaries of all members of the state judiciary to meet inflationary pressures included the following provision:
Tlie 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 (emphasis added)].
By this latter provision the Legislature obviously intended to comply with the Constitution by avoiding any *310disqualification of. its then members for judicial office which would otherwise be required by Article IV, § V, par. 1 of the New Jersey Constitution of 1947, which provides in pertinent part:
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.
Eor convenience and brevity, I shall refer to the above constitutional provision as the “ineligibility” clause; to the statute section mentioned as the “exclusion” clause; and to the underlined statutory words — “during the term for which he shall have been elected” (I shall shorten this to “during his legislative term”) — as the “limitation” clause.
The questions here presented involve the meaning and purpose of the “ineligibility” clause of the Constitution and whether the enactment of the “exclusion” clause amounts to an unconstitutional attempt to circumvent that me.aning and purpose, or whether it represents legitimate legislative action faithful to the constitutional mandate.
The cornerstone of our state government is our state Constitution. All state governmental action whether it be executive, legislative or judicial must conform to this organic law. Even though governmental action is generally clothed with a presumption of legalitj7, the judiciary, which is the final arbiter of what the Constitution means, must strike down governmental action which offends a constitutional provision.
To ascertain the true meaning of a particular constitutional provision it often becomes necessary to look beyond the particular words used. The polestar of constitutional construction is the intent and purpose of the particular provision. ' The function of the judiciary “is to give effect to the intent of the people in adopting” that particular provision. Gangemi v. Berry, 25 N. J. 1, 10 (1957). To *311that end resort to pertinent constitutional' history often serves as a valuable “aid in ascertaining the true sénse and meaning of the language used.” Lloyd v. Vermeulen, 22 N. J. 200, 206 (1956).
It has been said that if a constitutional or statutory provision is plain and' unambiguous on its face, there is no room for construction and plain language must be . given full effect without looking beyond the instrument. Gangemi v. Berry, supra. But that general rule has its limitations.3 Even' though on its face language may appear to be clear and unambiguous, if in fact, upon examination, the true intent and purpose of the Framers and the people appear, then the language should be read and applied in accordance with such intent, and purpose. The United States Supreme Court in United States v. American Trucking Ass’ns, 310 U. S. 534, 543-44, 60 S. Ct. 1059, 1064, 84 L. Ed. 1345, 1351 (1940), held that:
When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which *312forbids its use, however clear the words may appear on “superficial examination.” (footnotes omitted).
So it is that the court sometimes rejects a “literal and grammatical” reading of the state Constitution for the reason noted by Justice Jacobs in Lloyd v. Vermeulen, supra, 22 N. J. at 206:
[S]ince words are inexact tools at best, resort may freely be had to the pertinent constitutional and legislative history for aid in ascertaining the true sense and meaning of the language used.
See also Richman v. Ligham, 22 N. J. 40, 44-52 (1956).
Although referring to statutory construction, the following statement of Justice Heher also notes the danger in assuming that the natural conveyance of words alone best demonstrates their intended meaning:
It is not “the words of the law, but the internal sense of it that makes the law.” Eyston v. Studd, 2 Plowd. 459, 75 Eng. Rep. 695 (1574). * * * The intention emerges from the spirit and policy of the statute rather than the literal sense of particular terms. [Caputo v. The Best Foods, Inc., 17 N. J. 259, 264 (1955)].
Purthermore, one may question whether the “ineligibility” clause is so clear and unambiguous that construction is unnecessary. Almost half of the states have constitutional provisions similar to that clause, and these provisions have generated a surfeit of litigation, with court decisions divided as to the true meaning of the particular provisions. And so it is that other courts have found it helpful to look at the abundant history surrounding ineligibility clauses similar to ours. See, e. g., Meredith v. Kauffman, 293 Ky. 395, 169 S. W. 2d 37, 38-39 (1943); Mayor and Comm’rs v. Green, 144 Md. 85, 124 A. 403, 404 (1923); Spears v. Davis, 398 S. W. 2d 921, 923, 929 (Tex. 1966); Shields v. Toronto, 16 Utah 2d 61, 395 P. 2d 829, 830 (1964).
Judicial consideration of problems arising from the “ineligibility” clause has not been so sparse as suggested by *313the majority. An example of the inability of many courts construing such clauses to agree upon their interpretation and resulting application, may be noted in the exhaustive list of cases compiled by the court in Warwick v. State ex rel. Chance, 548 P. 2d 384, 389 n. 17 (Alaska 1976).4
*314Such-“ineligibility” provisions, including our.Own which first appeared in our Constitution of 1844,' were modeled after Art. I,' § 6, clause 2 of.the United States Constitution, which provides:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the’ Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during ¿is Continuance in Office.
This clause was the subject of much debate at the Federal Convention of 1787. As originally proposed, the clause would have made Senators '.and Representatives ineligible for appointment to any office, state or national, during their term of office and for a period of time thereafter. See I M. Farrand, The Records of the Federal Convention of 1787, at 20-21 (1911). The primary reason for the exclusion was to eliminate, to the extent possible, any bias or consideration of self-interest in the vote of a legislator. II J. Story, Commentaries on the Constitution of the United States § 864, at 330-31 (1833). However, there were those who believed that such an exclusion would disqualify some of the country’s ablest figures from any other public office simply because they were participant legislators, and at the least *315might discourage'many talented persons from- seeking legislative office. ■ ' ’ .
Delegate Roger Sherman, seeking'to prevent the abuse of the appointive power which had existed in England, advocated a total disqualification of legislators from seeking other offices. II Fair and, supra, at 490. Among the federal delegates arguing in favor of' eligibility was Nathaniel Gorham of Massachusetts, who sought to strike the clause’s application to legislators holding federal office.. See Pollitt, “Senator/Attorney-General Saxbe and the Tneligibility Clause’ of the Constitution: An Encroachment Upon Separation of Powers,” 53 N. C. L. Rev. 111, 114 (1974). He was supported by James Wilson of Pennsylvania,- who argued that “‘[s]trong reasons must induce me to disqualify a good man from office.’ ” Id. (On the state level the same concerns were expressed by delegate Alexander Wurts, who, among others, argued that the constitutional changes removing unchecked appointive power from the Legislature alleviated the necessity of an absolute bar to appointment of legislators. Proceedings of the New Jersey State Constitutional Convention of 1844, at 306 (Bebout ed. 1942) [hereafter cited as 1844 Proceedings]. Particular concern was expressed as to the availability of legislators for judicial office appointment.5)
The clause as finally adopted in the United States Constitution represents a compromise proposed by James Madison that the “disqualification only apply to federal offices created during the legislator’s term or those of which the emoluments had been increased during such term.” I Far-*316rand, supra, at 386, This middle ground permitted members of the Senate and House of Representatives, during the time for which they were elected, to be appointed to other offices so long as such offices had not been created or their benefits enhanced during the appointee’s legislative term. Even as to offices which had been created or the emoluments of which had been increased, the disqualification ended upon expiration of the legislator’s term.
Controversy surrounding the “ineligibility” clause which first appeared in our 1844 Constitution was not unlike that of the Eederal .debates. One proposal to bar any member of the Legislature, during the term for which he was elected, from .appointment to any other office was advocated as a means of eliminating any possible self-interest or collusion. This was .'rejected on the ground that its sweep was much too broad and that the most competent and experienced persons would thus be precluded from appointment, to the detriment of the State.6
The 1844 Convention ultimately adopted a proposal similar to the compromise suggested by Madison in 1787 at the Eederal Convention, which in effect barred a member of *317the Legislature during his term of office from appointment to another office only if such office had been created or its benefits enhanced during the appointee’s legislative term. 1844 Proceedings, supra, at 518. As approved, Art. IY, § Y, par. 1 of the 1844 Constitution provided:
No member of tbe Senate or General Assembly shall, during the time for which he was elected, be nominated or appointed by the governor or by the legislature in joint-meeting, to any civil office under the authority of this state, which shall have been created or the emoluments whereof shall have been increased, during such time.
Proposals to broaden the “ineligibility” clause have been intermittent. See Constitution of the State of New Jersey Proposed to be Amended by the Constitutional Commission 1873, at 9; Joint Legislative Committee Constituted Under Señale Con. Res. No. 19, Proposed (1942) Constitution of 1844, as amended, at 12; Proposed Revised Constitution of 1944, Art. Ill, § 3, par. 3. However, the clause remained unchanged until adoption of the 1947 Constitution, although the controversy persisted even then. During the debates before the committee on legislation, arguments calling for a broader provision were rejected. See III Constitutional Convention of 1947, at 609, 702-05, 807, 851; II id. at 1064. As adopted, the present “ineligibility” clause is substantially identical to the 1844 provision.
While New Jersey courts, prior to the instant case, have not been called upon to interpret Art. IY, § Y, par. 1, a situation somewhat analogous to the instant case arose in this State in 1892 when Governor Abbett appointed George T. Werts as an Associate Justice of the Supreme Court. Werts was a State Senator at the time and during his term an act increasing the salaries of Supreme Court Justices had been passed. (L. 1891, c. 274). In order to remove the constitutional bar to Werts’ appointment a bill repealing the salary increase was passed by both houses. However, as the New Jersey Law Journal pointed out, the repealer applied only to Werts and had no effect on the salaries *318of any of the justices then in office by virtue of Art. VII, § II, 'par.- 1 of the Constitution (1844) which provided that: the compensation of Justices of the Supreme Court “shall not be diminished during the term of their appointments.” XV N. J. L. J. 95-96 (1892). The appointment was not challenged in the courts.
The foregoing, history of the particular constitutional provision''’makes it clear that its purpose and intent were not to prohibit a legislator’s nomination to office. Disqualification exists only. where the office was created during the legislator’s term of office or the emoluments thereof increased by law during such term. Even then the disqualification from appointment is not absolute and only exists during the legislator’s term of office.
Subsequent to'such term his right to nomination or appointment is unquestioned, even though the office was created or its emoluments' increased during the nominee’s legislative term. The evil to which the constitutional provision is directed is legislative self-interest, i. e., the possibility that a legislator might be influenced in voting for a newly-created office or for compensatory increase for an existing office if he were eligible to be appointed to that office during his- legislative term. With respect to such motivations, where an appointment ensues after the end of the legislative term, the Constitution is indifferent thereto on its face. In other words the constitutional objective is that a legislator may not profit directly from his vote, because of a nomination occurring during his term. N. J. S. A. 2A:1A-8 was intended to- accomplish exactly what the “ineligibility” clause requires. (See Senate Judicary Committee Statement accompanying the Committee amendments to L. 1974, c. 57.) Its purpose was to place self-enrichment, during the span -of the legislative term, beyond the power of any member of' the Legislature.
In Wiley’s casé the act Increasing .judicial salaries was passed during his term as State Senator and would ordinarily be regarded-as'an increase in the emoluments of the judi*319cial offices involved.7 Yet, by the very provisions of the act, Wiley, having been appointed to judicial office, may not receive any part of the increase in judicial salary during the balance of his legislative term. As to him the emoluments of such offices have not been increased, at least for the period of the term for which- he was elected. I do not consider this to be an unlawful act to circumvent the constitutional purpose. Rather I find that it was intended to be a legitimate legislative provision fully consistent with the “ineligibility” clause of the Constitution.
.The trial court believed that such provision amounted to an attempt to circumvent the constitutional “ineligibility” clause and, considered in aid of the appointment of Senator Wiley (or any other legislator appointed to the bench during the term for which elected) was itself, for that cause, unconstitutional and ineffective. I believe, on the contrary, that the statute is entitled to the highest judicial respect as a bona fide legislative attempt to comply with the Consitution. The effect of the statute in doing so is another matter.
I think it goes without saying that absent the “exclusion” clause of N. J. S. A. 2A:1A, since that legislation enacted a general increase in all judicial salaries within the state court system, the Wiley appointment would clearly be unconstitutional, as coming directly within the words and intendment of the “ineligibility” clause. It should be noted parenthetically that the “ineligibility” clause applies to any current legislator whether or not,he voted for the statute increasing the emoluments of judicial office. Prom a consti*320tutional standpoint it is immaterial whether the legislator voted for the increase; his very membership in the actor Legislature is the disqualifying factor.
.Here analysis of the “ineligibility” clause is in order. I believe the expression “during the term for which he shall have been elected” in the “ineligibility” clause can be relevant only to two specific events: (1) the passage of a particular statute increasing emoluments of office, and (2) the appointment of a participant legislator to such office; that it concerns nothing else, including a limited period of disqualification of such appointee to receive the increased emoluments; so that, as well said by Justice Mountain for the majority, that part of the “ineligibility” clause is significant in only two respects, — “it is relevant in no other way; it is used in no other sense.”
The argument is made that a participant legislator if appointed, let us say, immediately after the expiration of his legislative term (he having had previous knowledge that he would be so appointed) might validly enjoy increased emoluments voted in the very twilight of that term, perhaps with his strenuous support. There is a surface plausibility to the theory that his self-interest motivation in such case would be so evident (as distinguished from the instant case where a routine, “good government” type of judicial pay raise legislation was involved, causing the most coincidental and innocent subjection of a legislator-appointee to the stricture of the “ineligibility” clause) that the “limitation” clause depriving the latter of the increase “during his legislative term” might be enough to meet the constitutional norm. But the comparison of these two cases has no constitutional base, when one considers that in the case of the post-term appointment, as noted, the Constitution is wholly indifferent (II J. Story, Commentaries on the Constitution of the United States § 864, at 331 (1833); I J. Tucker, The Constitution of the United States 442-43 (1899) ) and was intended so to he. Otherwise the Eramers would have proposed and the people adopted the proviso, strenuously but unsuc*321eessfully argued for at convention, that the debarment from appointment should be permanent, or at least for a period of one year after the expiration of the legislative term.
So, inevitably, emerges the question of the legal and constitutional effect of the clause disqualifying a legislator-appointee from the increase “during his legislative term.” If this “limitation” clause is viable, the statute would seem to me to increase, albeit to be enjoyed at a later time, the emoluments of office. Thus the appointee will at some future time enjoy the fruits of the legislation in whose adoption he was participant in the above sense. He would be destined to occupy an office “the emoluments whereof [were] increased by law” during the constitutionally sensitive period of his legislative term, and for such reason he would be disqualified from that office.
Assiiming that the constitutional defect clearly exists under the statute as it stands, the focal question is presented. Need the “limitation” segment of the “exclusion” clause be immovably viable, in the light of the primary purpose of the “exclusion” clause of the statute? While it does indeed represent the will of the Legislature, the larger legislative purpose was to qualify legislators for appointment to judicial office, notwithstanding the general salary increase. As has been said, that was a legitimate goal. There can be no doubt that such legislative intent was bona fide in its purpose to comply with the Constitution by avoiding the constitutional disqualification set forth in the “ineligibility” clause. In such case, must the vulnerable “limitation” provision necessarily doom the main thrust and purpose of section 8 of the statute ?
The synthesis of American judicial thought from the earliest times in our history would, I suggest with all respect, indicate to the contrary. The partible nature of a constitutionally challenged legislative act was recognized in Bank of Hamilton v. Lessee of Dudley, 27 U. S. (2 Pet.) 492, 526, 7 L. Ed. 496, 508 (1829), in which Chief Justice Marshall stated:
*322If any part of the act be unconstitutional, the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the Constitution * * *.
In 1881, the Supreme Court held:
[I]t seems to us that the unconstitutional part of the statute may be stricken out and the [unobjectionable provision] left in full force. The striking out is not necessarily by erasing words, but it may be by disregarding the unconstitutional provision, and reading the statute as if that provision was not there. [Florida Cent. R. R. v. Schutte, 103 U. S. 118, 142, 26 L. Ed. 327, 336 (1881)].
Judicial respect for the other branches of government has also been the rule in New Jersey. The former Court of Errors and Appeals held in St. John the Baptist, &c., Church v. Gengor, 121 N. J. Eq. 349, 357 (1937):
Where the principal object of the statute is constitutional, and the objectionable feature can be excised without substantial impairment of the general purpose, the statute is operative except in so far as it may contravene fundamental law.
This judicial diffidence in confronting an act of the Legislature, and the reasons for it, were emphasized long ago by Chief Justice Marshall, sitting at circuit in Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (C. C. D. Va. 1833):
No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.
That judicial restraint is the rule as well in New Jersey. Donadío v. Cunningham, 58 N. J. 309, 325-26 (1971).
So it is that courts have confined themselves to measuring executive and legislative action (as their sworn duty to uphold the Constitution requires them to do) only on a constitutional and not a politic basis, never concerning themselves *323with the wisdom, justification, or even the sense or honesty of purpose of the act of the other branch of government. That is the business of the other branch.8 It is the Constitution that is the business of the courts.
' The courts consider constitutionally germane questions such as these: Has the Legislature exceeded its constitutional power (Rothman v. Rothman, 65 N. J. 219 (1974); New Jersey Sports & Exposition Auth. v. McCrane, 61 N. J. 1, appeal dismissed, 409 U. S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215 (1972); Burton v. Sills, 53 N. J. 86 (1968), appeal dismissed, 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969) ) ? Does the statute offend a constitutional provision or right (King v. South Jersey Nat’l Bank, 66 N. J. 161 (1974); State v. Rosenfeld, 62 N. J. 594 (1973); West Morris Regional Bd. of Ed. v. Sills, 58 N. J. 464, cert. den., 404 U. S. 986, 92 S. Ct. 450, 30 L. Ed. 2d 370 (1971) )? Did the executive action contravene a statute, thus invading the constitutional prerogative of the Legislature (Pascucci v. Vagott, 71 N. J. 40 (1976) ) ? Does the statute measure up to a plain constitutional imperative (Robinson v. Cahill, 69 N. J. 449 (1976); State v. DeSantis, 65 N. J. 462, 473 (1974); State v. Madewell, 63 N. J. 506, 513 (1973) ), and the like. The courts thus are careful to act within their own constitutional sphere, showing respect to the prerogatives of the other branches of government and avoiding encroachment upon them in any way.
When it does become necessary to assess a statute from the standpoint of its constitutionality, our Court recalled, in Roe v. Kervick, 42 N. J. 191, 229 (1964), “the long-established principle of judicial deference to the will of the lawmakers whenever reasonable men might differ as to whether the means devised to meet the public need conform to the Constitution [and] the equally-settled doctrine that the *324means are presumptively valid, and that reasonably conflicting doubts should be resolved in favor of validity.”
Courts have many obligations including the interpretation of statutes, the application of common and statutory law, the doing of equity, the weighing of proofs as justifying trial judgment, the scrutiny of executive or administrative actions claimed to be arbitrary or illegal, and the like. None transcends (although all are involved in and spring from) the specific obligation of courts to uphold and enforce the Constitution.
And although this obligation is ineluctable in the end, it must be approached, as Chief Justice Marshall suggested, not wantonly or lightly but with utmost circumspection.
So it has been the constant thrust of judicial purpose and responsibility to respect legislative action in the adoption of laws, where they are conformable or, as will be seen, potentially conformable to the Constitution. The same respect is due executive action, whose purposeful decision here involved was amplified by the further legislative action of the Senate in confirming the appointment. The Court’s decision here accomplishes a very grave governmental eventuality, that of nullification of the action of two other branches of government.
That such judicial power exists, as a constitutional responsibility, is unquestioned. Marbury v. Madison, 5 U. S. (1 Cranch) 137, 2 L. Ed. 60 (1803). The assumption of such responsibility by New Jersey courts is clear. Moyant v. Paramus, 30 N. J. 528 (1959); Schmidt v. Newark Bd. of Adjustment, 9 N. J. 405 (1952). Whether the power should be exercised is another matter. If there is no alternative consonant with the Constitution, of course it must be. But if such an alternative exists, so that there be no constitutional compulsion that the act of the Legislature be “wantonly assailed” (Ex parte Randolph, supra), then the Court, out of respect to the principle of separation of governmental powers, should take that alternative course. That separation of power, constitutionally enshrined, is basic to our form of *325government, and ought to be scrupulously observed by courts, the final guardians of the Constitution.
Is there such an alternative here? Courts have sought and found such in innumerable instances. They have “strained” to uphold a legislative act. Justice (then Judge) Pashman stated in New Jersey Sports & Exposition Auth. v. McCrane, 119 N. J. Super. 457, 476 (Law Div. 1971), aff’d, 61 N. J. 1, appeal dismissed, 409 U. S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215 (1972), that “[t]he duty of the court is to strain if necessary to save the act, not to nullify it.” The courts have performed “judicial surgery” such as in State v. Zito, 54 N. J. 206, 218 (1969), in which Chief Justice Weintraub said in another context for a unanimous Court:
The statute is an important instrument for protection of the individual, and since the Legislature would likely want the statute to remain to the extent that it may, we see no impediment to such judicial surgery as will bring the statute within the Constitution.
This manner of construction of a given statute, in order to conserve, within the permissible constitutional range, the clearly discerned legislative will, is therefore one of constitutionally and judicially encouraged respect for the Legislature as a co-equal branch of government. It is sometimes called “judicially salvaging]” a statute to meet constitutional requirements as in State v. DeSantis, supra, 65 N. J. at 472. At other times it is called “judicial pruning” as in Borough of Collingswood v. Ringgold, 66 N. J. 350, 357, 364 (1975), appeal dismissed, 426 U. S. 901, 96 S. Ct. 2220, 48 L. Ed. 2d 826 (1976), in which this Court “performed such judicial pruning as [to] render the ordinance constitutional,” or “excision,” referring to whatever infirmity in such ordinance as “might be exposed by judicial scrutiny, which defects we undertake to excise.” The effort to preserve the legislative purpose is clear from the language of our Court in Ringgold, — “[w]e invalidate the ordinance as to [certain] provisions but find that the remaining requirements *326are .neither undue nor discriminatory, and that [so construed], the ordinance survives * * * .” Id. at 362.
It is for a similar judicial purpose and under like compulsion that the majority in the instant ease feels free to excise from the statute the whole of the “exclusion” clause.
The same general principle applies in weighing the rigidity or flexibility of a constitutional interdiction. As stated by Justice Heher in Behnke v. New Jersey Highivay Auth., 13 N. J. 14, 25-26 (1953) :
A constitutional interdiction against the exercise of a particular power is in the nature of an exception; and it is the settled rule of judicial policy in this jurisdiction that a legislative enactment will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt. The limitation upon the exercise of the legislative function must be clear and imperative. This constitutes a basic restraint upon the power of the courts, federal and state, to nullify a statute for want of constitutional congruity. * * *•
While constitutional limitations are in their very nature inflexible in meaning and immune to- varying public opinion, social and economic needs arising from the complexities of modern life call for new applications of the principle; and the Constitution would not serve its essential purpose were it insensitive to the demands of a changing society and economy. * * * The principle itself is unalterable except by the will of the people expressed in the constitutional mode, but accommodation to new needs without a violation of the essence of the principle does not contravene the intent of the instrument. We are concerned with the spirit of the limitation, and in that inquiry related provisions must be held in view. The true rule of construction “is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from the other powers granted by that instrument, so that the whole, may be interpreted by the spirit which vivifies, and not by the letter which killeth.” [quoting from Downes v. Bidwell, 182 U. S. 244, 312, 21 S. Ct. 770, 796-97, 45 L. Ed. 1088, 1116 (1901) (White, J., concurring) (emphasis added) (citations omitted)].
Similar respect, and the judicial restraint impelled by it, should be shown the Executive who makes an appointment, the Senate which confirms it, and the Legislature which enacts a law in its support.
*327Not only does the exercise of judicial restraint in general require that we follow these established precedents, to avert destruction of the solemn act of the Legislature and Executive, but the strongest public policy reasons dictate that course here as a constitutional imperative. First I must note a respectful caveat to the view that only the “great ordinances” of the Federal Constitution such as the due process and equal protection clause and matters enshrined in the Bill of Rights (or their counterparts in a state constitution) are subject to flexibility so as to evolve responsively to the changing needs of the times; and that all other constitutional provisions because they deal with the mechanics of government must be considered as so static, immovable or dead, in a sense, that as to them the Constitution could not serve its essential purpose by responding to the demands of a changing society and economy. Home Building and Loan Association v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413 (1934); Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926), cited by Justice Heher for this Court in Behnke v. New Jersey Highway Auth., supra.
It must be remembered that “[a] state constitution, unlike the Federal Constitution, is not a grant but a limitation of legislative power.” The function of the Legislature is to exercise a portion of the sovereign power residing in the first instance in the people, subject to limitations imposed by the Federal Constitution and our own, as well as those so fundamental in the social compact and the Anglo-Saxon principles of natural justice as to be necessarily implied; and in determining the operative scope of a constitutional limitation courts are enjoined “to collect the sense and meaning of the clause,” the goal being to ascertain “the intent of the people in imposing the particular restraint.” Behnke v. New Jersey Highway Auth., supra, 13 N. J. at 24.
In considering the flexibility in application of a constitutional provision then, including one thus interdictory *328in nature, it is important to understand tlrat it does not disparage, but is concordant with, the constitutional will of the people for their Constitution to be considered as a living charter,9 — designed to serve the ages and to be adaptable to the developing problems of the times; and this without abandoning in any slightest way the fixed and age*329less basic principles by which a free people agreed by constitution to be bound together in their government. The hopes and the intent of the people, as discerned by those whom they designated to judge, are paramount. It is in this sense that I would fulfill that judicial responsibility, so reposed in us by the constitutional will of the people.
And it is in this sense also, that I would believe that the constitutional “ineligibilty” clause, in the context of a statute so obviously intended to comply with it, should be considered according to the “spirit which vivifies, and not by the letter which killeth.” This concept of constitutional adaptability and good sense application is particularly appropriate here, considering the relationship of the “ineligibility” clause to the current realities of government in New Jersey, as compared with those extant at the time of the clause’s birth.
In this second half of the century in which we are living, the operation of the civil government created by our Constitution, because of inflation, has come to be dependent upon frequent, almost annual, “cost-of-living” increases in compensation for all State employees (although more rarely in the case of judges), a condition surely not extant in 1844, nor significantly so even in 1947.10 These increases occur, of course, by law, supported by an appropriation bill. Unless civil government is to stop, then, the *330literal interpretation and unconditional application of the “ineligibility” clause, under all circumstances, would realistically bring about the extreme result unsuccessfully sought by the Convention dissidents of 1844, namely the total exclusion of all legislators, during their term, from any appointive office, executive, administrative as well as judicial, to the clear disadvantage of the state. Yet this absurd result was surely not intended by the Framers of the Constitution nor the people who adopted it. As has been noted, James Madison argued that some of the ablest would be found in the Legislature and it would be a mistake to disqualify them from office. And this, not for the sake of the appointee, but for that of the government and commonweal. The senatorial plaintiffs in this case, as I have noted, concede the virtue and propriety of this appointment as concern the character and ability of the appointee, pointing only to the constitutional clause and its supposed inflexible and literal application, in derogation of the appointment. We are thus confronted here not so muqh with the fate of a specific appointee as with the interest of the State and its government, its judicial system and the plainly evinced legislative will, all inevitably concerned with the constitutional validity of this appointment.
Were it not for the “limitation” clause “during his legislative term,” the effect of N. J. S. A. 2A:1A-8 would be to withhold entirely the benefit of generally increased emoluments from legislator-appointees, with the result that the “office” to which one of them would be appointed would not be an “office” whose emoluments were increased by law enacted during his legislative term. In such case, without the vulnerable “limitation” clause the joints of the “ineligibility” clause would have at least this much play11 — *331that the statutory withholding of emoluments from the “office” to which Wiley was appointed would negate in logic any idea that the compensation of that office was increased by law.
So clearly does it seem to me that the complicating and hurtful “limitation” clause would needlessly subvert the main legislative purpose of the statutory section quoted, that it should be considered as surplusage and be ignored, as was done in the many salutary precedents cited (including, as noted, the action of the majority of the Court in this very case in discarding the “exclusion” clause in ioto). The result, in my opinion, would be to leave the appointment, in the light of the basic section 8 of the statute, so construed, perfectly valid in the constitutional sense.
Nor, so construed, should section 8, in my view, be considered to be a “special law” in violation of Article IV, § VII, par. 9 of the Constitution. It operates upon a readily identifiable and appropriately classified group, that is to say, all members of the New Jersey Legislature otherwise eligible for appointment to judicial office. All of such persons when appointed to any state judicial office are subject to the terms of section 8 of the statute. They must forego that part of their emoluments increased, as to all other members of the judiciary, by the statute. No one is excluded who should be included. This classification is not unreasonable or arbitrary, including all and excluding *332none who are eligible for appointment to the bench. See Budd v. Hancock, 66 N. J. L. 133, 135 (Sup. Ct. 1901).
Nor, viewing the relevant class, as does the majority, as being the judiciary, more specifically the Associate Justices of the Supreme Court, do I consider such classification arbitrary and unreasonable. It is true that the members of that Court perform like judicial duties, as do members of other courts affected by the statute. Yet the legislator-appointee would receive, at least for the time (during the statutory life of N. J. S. A. 2A:1A-6), less compensation than that of his colleagues. This is not so for an arbitrary or unreasonable cause, but only because he would otherwise be ineligible for office, a legitimate foundation for the classification, lest all current legislators be ineligible for appointment to judicial office, a drastic constitutional result never intended by the people. The classification then, in my opinion, is not based upon an arbitrary or unreasonable foundation. Harvey v. Essex Cty. Bd. of Freeholders, 30 N. J. 381, 389-91 (1959); Koons v. Atlantic City Bd. of Comm’rs, 134 N. J. L. 329, 332-33 (Sup. Ct. 1946), aff’d, 135 N. J. L. 204 (E. & A. 1947); Budd v. Hancock, supra, at 135, 136-37; Van Riper v. Parsons, 40 N. J. L. 1, 8-9 (Sup. Ct. 1878).
That foundation of course is viewable in two aspects, — if deemed as intended to circumvent the Constitution, arbitrary and unreasonable and thus within the constitutional ban. But seen in another way, as I see it for the many reasons stated, as an honest legislative attempt to comply with the Constitution, it is not arbitrary nor unreasonable and is thus constitutionally sound in all respects. It is not an illegal evasion of a constitutional provision or prohibition, to accomplish a desired result, lawful in itself, by discovering or following a legal way to do it. Clayton v. Kervick, 52 N. J. 138, 151-52 (1968).
And even if one were to entertain a reasonable doubt on this point, “it is the settled rule of judicial policy in this jurisdiction that a legislative enactment will not be de*333dared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt.” Behnke v. New Jersey Highway Auth., supra, 13 N. J. at 25.
Many of the decisions quoted, interpreting a constitutional provision such as here, forswear a literal application and endeavor to ascertain the true constitutional purpose. Meredith v. Kauffman, supra; Mayor and Comm'rs v. Green, supra; State ex rel. Lyons v. Guy, 107 N. W. 2d 211 (N. D. 1961); Spears v. Davis, supra; Shields v. Toronto, supra.
In applying the same rule of interpretation to our Constitution’s “ineligibility” clause I would conclude, as noted, that the “exclusion” provision of the judicial salary increase act (N. J. S. A. 2A:1A-8) is not an attempt to circumvent the constitutional safeguard. On the contrary, as here construed to provide unconditionally for the withholding from the appointee of the emoluments increased by 2A:1A-6, I deem the statute to be faithful to the basic constitutional purpose and consistent in all respects with the constitutional requirement.
I would hold the Wiley nomination, therefore, free of such statutory limitation, to be lawful and constitutional. Justices Pashman and Schkeiber authorize me to state that they join in this opinion.
Counsel for Senator Vreeland and his colleagues state in their brief, at page 3:
These plaintiffs do not question Senator Wiley’s integrity, intelligence, legal ability or any other necessary qualification for the position of Associate Justice of the Supreme Court. The sole basis of their complaint is that the nomination of Senator Wiley contravenes Article IV, Section V, Paragraph 1, of the New Jersey Constitution.
Article III, par. 1 of the New Jersey Constitution of 1947 provides :
The powers of the government shall be divided among three distinct branches, the legislative, executive and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
As stated by Justice Frankfurter:
Anything that is written may present a problem of meaning, and that is the essence of the business of judges in construing legislation. The problem derives from the very nature of words. They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision. [“Some Reflections on the Reading of Statutes,” 47 Colum. L. Rev. 527, 528 (1947)].
See generally 3 Sutherland, Statutory Construction, “Legal Commentary for Part V. Statutory Interpretation” 407 (C. Sands 4th ed. 1974); Jones, “The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes,” 25 Wash. U. L. Q. 2 (1939); Murphy, “Old Maxims Never Die: The ‘Plain-Meaning Rule’ and Statutory Interpretation in the ‘Modern’ Federal Courts,” 75 Colum. L. Rev. 1299 (1975) ; Nutting, “The Relevance of Legislative Intention Established by Extrinsic Evidence,” 20 B. U. L. Rev. 601 (1940); Note, “Extrinsic Aids to Statutory Interpretation — The New Jersey View,” 8 Rutgers L. Rev. 486 (1954). Although these discussions of the “plain meaning rule” have generally referred to statutory construction, they are also appropriate in the context of constitutional interpretation.
Compare cases upholding eligibility for office despite such a provision, Opinion of the Justices, 279 Ala. 38, 181 So. 2d 105 (1964); State v. Myers, 89 Ariz. 167, 359 P. 2d 757 (1961); Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal. 2d 179, 93 P. 2d 140 (1939); Adams v. Mathews, 156 So. 2d 515 (Fla. 1963); In re Advisory Opinion to the Governor, 132 So. 2d 1 (Fla. 1961); State ex rel. West v. Gray, 74 So. 2d 114 (Fla. 1954); State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So. 2d 589 (1946); State ex rel. Landis v. Futch, 122 Fla. 837, 165 So. 907 (1936); Sheffield v. State School Bldg. Auth., 208 Ga. 575, 68 S. E. 2d 590 (1952); Bulgo v. Enomoto, 50 Haw. 61, 430 P. 2d 327 (1967); State v. Gooding, 22 Idaho 128, 124 P. 791 (1912); Redmond v. Carter, 247 N. W. 2d 268 (Iowa 1976); Meredith v. Kauffman, supra; State Tax Comm’n v. Harrington, 126 Md. 157, 94 A. 537 (1915); Mayor and Comm’rs v. Green, supra; State ex rel. Benson v. Schmahl, 125 Minn. 104, 145 N. W. 794 (1914); State ex rel. Olson v. Scott, 105 Minn. 513, 117 N. W. 1044 (1908); State ex rel. Lyons v. Guy, 107 N. W. 2d 211 (N. D. 1961); Baird v. Lefor, 52 N. D. 155, 201 N. W. 997 (1924); State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52 N. E. 2d 980 (1944); Gragg v. Dudley, 143 Okl. 281, 289 P. 254 (1930); State ex rel. Grigsby v. Osteroot, 75 S. D. 319, 64 N. W. 2d 62 (1954); Spears v. Davis, supra; Kothmann v. Daniels, 397 S. W. 2d 940 (Tex. Civ. App. 1965); Shields v. Toronto, supra; State ex rel. O’Connell v. Dubuque, 68 Wash. 2d 553, 413 P. 2d 972 (1966), overruling State ex rel. Pennick v. Hall, 26 Wash. 2d 172, 173 P. 2d 153 (1946); State ex rel. Hamblen v. Yelle, 29 Wash. 2d 68, 185 P. 2d 723 (1947); State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P. 2d 173 (1938); State ex rel. Johnson v. Nye, 148 Wis. 659, 135 N. W. 126 (1912); State ex rel. Ryan v. Boyd, 21 Wis. 208 (1866); Brimmer v. Thomson, 521 P. 2d 574 (Wyo. 1974), with cases holding that the constitutional bar prohibited the person from taking office, Opinion of the Justices, 244 Ala. 386, 13 So. 2d 674 (1943); Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157 (1895); Kederick v. Heintzleman, 132 F. Supp. 582 (D. Alaska 1955); In re Advisory Opinion to the Governor, 225 So. 2d 512 (Fla. 1969); Advisory Opinion to Governor, 156 Fla. 55, 22 So. 2d 458 (1945); Taylor v. Commonwealth ex rel. Dummit, 305 Ky. 75, 202 S. W. 2d 992 (1947); Kimble v. Bender, 73 Md. 608, 196 A. 409 (1938); Opinion of the Justices, 348 Mass. 803, 202 N. E. 2d 234 (1964); In re Opinion of the Justices, 303 Mass. 615, *31421 N. E. 2d 551 (1939); Fyfe v. Mosher, 149 Mich. 349, 112 N. W. 725 (1907); Miller v. Holm, 217 Minn. 166, 14 N. W. 2d 99 (1944); State ex rel. Anderson v. Erickson, 180 Minn. 246, 230 N. W. 637 (1930); State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N. W. 262 (1895); Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169 (1858); Baskin v. State ex rel. Short, 107 Okl. 272, 232 P. 388 (1925); Palmer v. State, 11 S. D. 78, 75 N. W. 818 (1898); Hall v. Baum, 452 S. W. 2d 699 (Tex. 1970), appeal dismissed, 397 U. S. 93, 90 S. Ct. 818, 25 L. Ed. 2d 79 (1970); Romney v. Barlow, 24 Utah 2d 226, 469 P. 2d 497 (1970); State ex rel. Jugler v. Grover, 102 Utah 41, 125 P. 2d 807, (1942); State ex rel. Anderson v. Chapman, 86 Wash. 2d 189, 543 P. 2d 229 (1975); Oceanographic Comm’n v. O'Brien, 74 Wash. 2d 904, 447 P. 2d 707 (1968); State ex rel. French v. Clausen, 107 Wash. 667, 182 P. 610 (1919).
“[I]f you restrict the members of the Legislature from all appointments, the state may suffer great injury. Suppose the office of Chancellor should become vacant, and the very man on whom all eyes were fixed as the one most competent and proper to fill it should be in the Senate. The Governor cannot look to either House to fill the office, and the state must suffer. The same effect would be produced if a vacancy should occur in the office of Chief' Justice or Associate Justice of the Supreme Court.” [1844 Proceedings at 306].
A final debate over total disqualification resulted in a vote of 32 to 16 to reject the provision totally disqualifying legislators from other offices. Records of the debate indicate that the framers of the 1844 Constitution carefully considered arguments that the need to prevent corruption or collusion outweighed the need to make qualified legislators available for other positions:
Mr. Ewing thought that the section did not go far enough, but that members of both Houses should be excluded from any appointments during their term and he moved to amend the same, by striking out all after the word “state” to the end of the section.
Mr. Ryerson and Mr. Child suggested that the most competent and the best men for offices which might become vacant might be in either House, and this amendment would preclude the Governor from selecting them, when they were, perhaps, the very best men for the station, and who had not any idea that any vacancy would exist, when they were elected.
Mr. Ewing again advocated the amendment, and urged that corruption or collusion which might arise on this subject, ought to be prevented. 11844 Proceedings, supra, at 518].
It has been suggested that an across-the-board increase in judicial salaries made in a period of continuing inflation is nothing more than a cost-of-living adjustment which only seeks to avoid the erosion of the purchasing power of the judicial salary and is not an increase in emoluments. In Shields v. Toronto, 16 Utah 2d 61, 395 P. 2d 829 (1964), the Supreme Court of Utah held that a modest across-the-board salary increase for state officers should be treated as a cost-of-living adjustment and not an increase in emoluments within the meaning of its constitutional provision.
Avant v. Clifford, 67 N. J. 496, 517 n. 19 (1975); New Jersey Sports & Exposition Auth. v. McCrane, 61 N. J. 1, 8, appeal dismissed, 409 U. S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215 (1972).
To reach a fair and just constitutional interpretation, Chief Justice Marshall stressed that “we must never forget, that it is a constitution we are expounding.” He argued that its provisions were “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” M’Culloch v. Maryland, 17 U. S. (4 Wheat.) 316, 407, 415, 4 L. Ed. 579, 601, 603 (1819).
The Constitution is a continually operating charter of government, Yakus v. United States, 321 U. S. 414, 424, 64 S. Ct. 660, 667, 88 L. Ed. 834, 848 (1944); Hirabayashi v. United States, 320 U. S. 81, 104, 63 S. Ct. 1375, 1387, 87 L. Ed. 1774, 1788 (1943); Opp Cotton Mills, Inc. v. Administrator, 312 U. S. 126, 145, 61 S. Ct. 524, 532, 85 L. Ed. 624, 636 (1941); and it has been pointed out that:
The greatest expounders of the Constitution, from John Marshall to Oliver Wendell Holmes, have always insisted that the strength and vitality of the Constitution stem from the fact that its principles are adaptable to changing events. [R. Jackson, The Struggle for Judicial Supremacy 174 (1941)].
Justice Holmes observed in Gompers v. United States, 233 U. S. 604, 610, 34 S. Ct. 693, 695, 58 L. Ed. 1115, 1120 (1914) that
the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.
It was this sense of vitality and adaptability that caused the court to say in New Jersey Sports & Exposition Auth. v. McCrane, supra, 119 N. J. Super., at 476:
[I] t is no answer to say that this public need was not constitutionally envisioned 50 years ago. That Constitution, with which the law measures “public purposes,” was created to endure images and was intended therefore to be adopted for the many crises of human affairs generated by changing social needs and the demands for sensitivity towards them.
And because the Constitution has such life it “states or ought to state not rules for the passing hour, but principles for an expanding future.” B. Gardozo, The Nature of the Judicial Process 83 (1921).
Although there were several war-related “bonuses and adjustments” enacted during the decade in which the 1947 Constitution was adopted, 1940-1950, there were no general, across-the-board, cost-of-living salary increases passed.
Compare that era with the decade of 1966-1976, where general, cost-of-living increases have become almost an annual event:
L. 1967, o. 63 — 5%
L. 1968, o. 119 — 5%
L. 1969, c. 71 — 5%
L. 1971, o. 240 — 6%
L. 1972, c. 73 — 2.18% (salary-range adjustment)
L. 1973, c. 188 — 5.50%
L. 1974, c. 58 — 6%
L. 1976, c. 42 — 7% (approximately)
“The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Oliver Wendell Holmes, J., Bain Peanut Co. v. Pinson, 282 U. S. 499, 501, 51 S. Ct. 228, 229, 75 L. Ed. 482, 491 (1931).
*331“There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents [in prison disciplinary cases].” White, J., Wolff v. McDonnell, 418 U. S. 539, 567, 94 S. Ct. 2963, 2979-80, 41 L. Ed. 2d 935, 957 (1974).
“Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas Railway Company of Texas v. May, 194 U. S. 267, 270, 24 S. Ct. 638, 639, 48 L. Ed. 971, 973 (1904), quoted by Justice Heher in McCutcheon v. State Building Auth., 13 N. J. 46, 79 (1953).