Conger v. Convery, 52 N.J.L. 417

Conger v. Convery

52 N.J.L. 417 | N.J. | 1890

Lead Opinion

The opinion of the court was delivered by

Beasley, Chief Justice.

By the constitution of this state the judicial power is declared to be vested “in a Court of Errors and Appeals in the last resort in all causes, as heretofore ; a court for the trial of impeachments; a Court of Chancery; a Prerogative Court; a Supreme Court; Circuit Courts, and such inferior courts as now exist, and as may be-hereafter ordained and established by law, which inferior courts-the legislature may alter or abolish, as the public good may require.”

It will be observed that, in this description, no attempt is-made to define the authority or jurisdiction of the several courts thus designated; and yet it is not to be denied that, the boundaries of the power thus deposited in these several tribunals have always been deemed to be as plainly demarked,. by implication, as they could have been by the most exact .definition. And the reason of this is obvious, for each of these-judicial institutions, with the exception of the county courts, and those subordinate establishments, styled inferior courts, *440has descended to us from the Proprietary and Provincial governments, with no observed change except as to their modes of procedure, and, inasmuch as each of them is the exact counterpart of an English original, the particular jurisdiction of each is readily ascertainable by a reference to that of the tribunal of which it is a copy. Whenever inquiry has arisen as to the authority of the Court of Chancery as it exists in this state, the books with respect to the jurisdiction of the English chancellor have been questioned; and, similarly, when the sphere of the power of this court has been in doubt, the uncertainty has been thought to have been removed when- the extent of the power of the King’s Bench, in the given instance, has been ascertained. In view of such a condition of affairs, it does not seem questionable that every one of these chief constitutional tribunals, as they at present exist in this state, has its powers defined with certainty and exactness.

And from this proposition it necessarily results that establishments thus created cannot be abolished or impaired, except by the power thát called them into existence. A presumption "of such inviolability would indeed be justified by a.consideration of the nature of the things thus constituted, but, in this • case, we have also the express constitutional declaration that all the judicial authority of the state shall be vested in these tribunals that are particularly enumerated, and that the legis- ' lature may alter or abolish only those1 inferior courts that may be erected by its own fiat. This doctrine, that these important tribunals have their faculties and jurisdictions definitely established, and the further doctrine, that such conditions are immutable except by a modification of the organic law, has been frequently enunciated in the judicial decisions in this state. Such was the view expressed by the court of last resort in the case of Harris v. Vanderveer, 6 C. E. Gr. 424.

, Although the foregoing views are familiar, it seemed not but of place to refer to them on the present occasion, as one of the most prominent of the positions taken by the counsel , of the contestant is manifestly antagonistic to their existence , in a settled form. The contention referred to is, in effect, *441that- it is within the competency of the legislature to transfer from the Supreme Court to the county Circuit Court one of its important and well known powers. The question arises fin this wise, viz.: this controversy relates to the election of a •clerk in the county of Middlesex; the contestant, by force of that part of the Election law that relates to “ contested elections of county and township officers” (Rev., p. '355, §§ 100 ■et seq.), filed his petition in the county Circuit Court, setting forth, among other .things, “that a large number of ballots, sufficient to change the result, had not been put regularly into the ballot box, but, by fraudulent substitution, for other -ballots voted for the contestant.” At the time of the inception of the procedure the incumbent had not received his •commission from the governor, but had been counted in by the election board, and was possessed of its certificate to that -effect. The issue thus presented was taken cognizance of by ■the Circuit judge, many witnesses being called to prove the •alleged fraud, and voters were examined touching.the ca'ndi•dates for whom.they cast their ballots. At the close of the •testimony the proceeding was referred to this court' for its advisory opinion upon the following questions, that is to say: “ Whether the Circuit Court could proceed further under the statute; decide the question of fact presented by the evidence, and pronounce judgment whether the incumbent or contestant was duly elected, and, according to such determination, give or annul the certificate of election.”

By referring to the statute itself, it will be perceived 'that :some of the'grounds on which it authorizes elections to be put in question are such as ordinary canvassing boards are frequently called to pass upon, and, with regard to those matters, a number of inquiries have been entertained by several of the Circuit Courts; but, so far as appears, this is the first occasion when, by virtue of this act, an investigation has been made of alleged electoral frauds, or where it has been attempted to ascertain the force of the suffrages by the testimony of the ] voters. The procedure was not only without precedent, but / fit involved questions of the utmost public moment, and, con-/ *442sequently, before carrying it into effect, it was conspicuously proper to call upon this court for its advisement.

The course of law above described is undoubtedly in strict', pursuance of the statute on which it was founded. Indeed,, the provisions of that act are so general that they appear to-be applicable in eveiy instance in which an election can be challenged for illegality, mistake or fraud. In section 111 it directs “that the court shall pronounce judgment whenever-the incumbent or any contestant was duly elected, and the-person so declared elected will be entitled to his certificate on. qualification; if the judgment be against the incumbent, and. he has already received the certificate of election, the judgment shall annul it; if the court find that no person was duly elected, the judgment shall be that the election be set aside.”'

It is obvious that a procedure' having such capacities must, of necessity, embrace everything that is triable on an information in the nature of a quo warranto, its judgment, indeed,, having a wider effect, as it not only displaces the usurper but-installs in his place the rightful candidate. And hence it is-insisted that the jurisdiction thus conferred on the several county Circuits is, in substance and effect, a transference to-those inferior tribunals of one of the most ancient judicatureswhich has been immutably fixed in the Supreme Court, and. is, therefore, unconstitutional.

For my part, I should entirely agree to this proposition, if' I were to assume the truth of the fact on which it is founded.. If, in reality, as is here supposed, the power thus imparted to-these local judicatories be, in point of effect, identical with. that exercised by this court, over the same subject, the law attempting to create such an authority would, in my opinion,, be unconstitutional. It cannot be denied that the power in question, as it has always existed in the legal system of this-state, is one of those peculiar and high prerogatives that from time immemorial has been possessed by the Court of King’s-Bench, and, similarly, by this court, from its origin. As long,, therefore, as we have seen, as the constitution remains what it is, such power is indestructable and untransferable. That.*443such jurisdiction is of great moment, in view of the public welfare, is apparent, for, by its prevalence, the right to decide with respect to the tenure of this large class of political offices-is put under the safeguard of a trial by jury, supervised by the highest common law court of original jurisdiction in the state. From the very constitution of our courts it has heretofore been a part of the established polity of this commonwealth, .that no citizen can be finally excluded or evicted from I his office except with the sanction of twelve men and a judgment ensuing according to the methods-of the common law: If this court could be deprived, by legislative action, of such a prerogative as this, then it would inevitably follow that not one of its prerogatives would be safe. Nor can this, or any other of the high constitutional courts, be required, by legislative mandate, to share with another tribunal any of their prerogatives, for to convert a court having, in certain matters, exclusive jurisdiction into a court having merely a concurrent jurisdiction, is to essentially alter the inherent nature of such court, and this, we have said, is beyond the scope of the power of the lawmaker.

The general doctrine thus expressed received the sanction, of the Court of Errors in Re Cleveland, 22 Vroom 315.

But upon full consideration, it has been concluded by me, that the fundamental fact thus argumentatively assumed does not exist; that is to say, this act under consideration, when-properly construed, does not transfer to the county Circuit Court any part of that prerogative power of this court of which we have been treating. The procedure which it establishes is to be regarded simply as a part of the apparatus for organizing the government, by supplying it temporarily, and in view of a pressing public necessity, with its necessary members. In its purpose and nature it is similar to the power, exercised by the judges of election and the county canvassers. It may, in fact, be said to be a supplement to such machinery, the object of it and the other agencies just referred to being the same—that is, to put into office for the time being such candidates as appear to have been chosen by the people.

*444This construction excludes, of course, the idea that the pro-cedure has any conclusive effect, and regarding it in this light it appears to be, in a constitutional point of view, unobjectionable, at least so far as it is employed merely as an •electoral adjunct. Plainly, the judgment rendered in such procedure would not oust this court of its jurisdiction sub.sequently to try the title to the office by quo warranto. Indeed, no case has been observed in which it has been declared that ■a decision of this kind, settling for immediate purposes and ■as a part of the electoral process with which it was intimately •connected, the right to office, is a bar to further judicial inquiry. The doctrine of the inconclusi-veness of such decisions in these cases, is approved of by Judge McCrary in his excel.lent treatise on Elections, •§ 360.

• The statute in question, so far as relates to its application ¡to the present case, must be sustained.

With respect to the further inquiry relating to the right •of the parties to call for a trial by jury in these procedures, we are of opinion that such right does not exist. It is not given by the statute in express terms, and it is not to be implied, as such mode of proceeding would be out of harmony with the legislative purpose. Looking at the action to be •taken in the Circuit as a mere auxiliary to the operation of •canvassing the votes, and the result as temporary in its effect, the introduction of a jury into the proceeding would be incongruous and obstructive of the purpose,, which, in the foregoing remarks, has been imputed to the legislature. It is obvious that, unless this procedure be summary, it would be well-nigh valueless, and all experience has shown that .if the trial is to be by a jury it cannot be summary. There appears to be a .settled conviction on the part of the community, that the ■judiciary should participate in investigations of this character. Provision for such intervention in electoral proceedings of ¡this character was recommended by the governor of the state in a recent message, and such recommendation has taken form in a law of great public importance which has just, been ■enacted; and yet, such recommendation and .adoption would *445seem to be entirely futile unless the-judicial assistance thus-/ invoked should -be swift and peremptory in its action. In/ the course of installing an officer recently elected, it would be-as well to resort at once to a quo warranto as to this statutory-method, if it involves a trial by the country.

Touching the further contention that a citizen, being in> office, or holding the credentials of his election, has, by force-of the constitution of the state, a right to, a trial by jury in case his right is put in question, the answer is, that such pre-rogative does not obtain in the course of proceedings whose purpose is exclusively to put the government on foot. As has' already appeared, the course of procedure under consideration was of that character.

Let the Circuit Court be advised to proceed with the matter before it, and to pronounce and execute judgment therein in accordance with the statute.

Concurrence Opinion

Dixon, J.

I concur in the opinion of the chief justice,, to the effect, that the statutory provisions involved in this-case cannot, and were not designed to, trench upon the power-of the Supreme Court by quo warranto, that they are merely-a part of the electoral machinery, and, as such,- are valid.

But with regard to the trial by jury, my opinion is, that/ the legislature has given to the parties a right to such a mode-of trial. I do not think that the constitution secures that-right in controversies like the present, but the manifestation: of legislative purpose to afford it seems to me plain.

The statutory jurisdiction is conferred, not upon a judge,, but upon the Circuit Courts, and the ordinary method of 1 trying issues of fact in these courts is by jury. Section 107 i directs “ that the proceedings shall be similar to those in an ¡ action at law, so far as practicable," and trial by jury is not at: all impracticable in these contests. Indeed, to some of the issues which may be raised under section 101, that mode of trial is peculiarly appropriate.

. I think, however, that the parties may, as they may and' frequently do in common law actions, waive their right to-*446trial by jury and proceed to trial before the judge alone, and ¡that such a waiver exists in the present case.

I therefore concur in the advice given to the Circuit.