81 N.J.L. 98 | N.J. | 1911
The opinion of the court was delivered by
The principal point of attack in this proceeding is section 5 of the Certiorari act of 1903 (Pamph. L., p. 343), which is challenged as unconstitutional on the ground that it delegates to a single justice who may be selected by a party, the prerogative jurisdiction in certiorari that may be exercised only by the court itself. Just what constitutional provision is infringed by this enactment is not indicated.
Section 5, first enacted in 1903, after prescribing the time within which reasons must be filed, provides that “after reasons filed either party may bring the action on for argument on five days’ notice before any justice of the Supreme Court at chambers, and his order and determination therein shall be entered as the judgment of said court, and error may be as
This statute was followed in the present ease, and at the time for which argument was noticed, counsel for defendant appeared before the justice, objected to the case going on and requested that the hearing he liad before the “Supreme Court,” but on the insistment of the opposing counsel his objection was overruled, argument had, and rule for judgment entered in favor of prosecutor and against the defendant. This is the rule that is sought to he stricken from i be files.
The holding of the Supreme Court by a single justice is nothing new in our judicial system. In 1799 (Pat. L., p. 393) the legislature enacted that the Supreme Court might he held by the Chief Justice or any one of said (associate) justices, and in 1845 (Pamph. L., p. 154, § 4) it provided for what is known as the “branch court” in these words:
“That it shall be lawful for the justices of the Supreme Court, at every tejan thereof, to designate, in such way as to them shall seem proper, one or more of their number to sit during term time in a separate apartment from that in which the regular term is held, for the purpose of hearing and deciding all .such matters as, by the rules of the said court, are or may be denominated common business; whose decisions and judgments shall he as good ajid effectual as if they had been rendered at the bar of said con rt.”
This last sentence was questioned in the ease of Wood v. Fithian, 4 Zab. 838, in the Court of Furors and Appeals; and while it appears from the opinion that the point was not raised below in such a way as to require the decision of the appellate court thereon, the matter was evidently thought to bo of sufficient importance to consider at length so that any question might, as far as was practicable, be set at rest. It was held—• first, that a branch court of one justice was a constitutional Supreme Court; second, that a certiorari to the Common Pleas on appeal was “common business.” On pages 840 and 841 it is said:
So far as we are aware, the constitutional propriety of the branch court sitting in term time has never since been challenged; whether such court consist as is now customary oE three justices, or two, or only one. Eor many years there have been two branch courts to hear coraran oar business, and recently the juactiee has grown up of equalizing the work of these three sections by the transfer of business from one to another, a section that has finished its own calendar taking over cases from any other section whose calendar is unfinished; so that any one of the three sections may be sitting as the main court or a branch court according to the character of the business that it is transacting. All this makes for economy of time both of court, counsel and litigants; an economy now essential in view of the increased business of the courts.
Section 5 of the Certiorari act had the same purpose in view by authorizing the hearing and determination of one class of common business at chambers. Counsel maintains that the hearing of cases in certiorari is not common business, but is in error. Erale- 29 designates certain classes of business not including cerlioraris to be “set down b3r the clerk on the paper” and continues: “Other matters not by this rule directed to be placed oar the paper shall come ora before the braaacla of the court assigned to the hearing of common business.” That
In New Brunswick v. McCann, 45 Vroom 171, this court held that a special summary tribunal to consist of one justice of the Supreme Court could not be invested by the legislature with the power of certiorari; but reserved the question now under consideration. The distinction between a single justice as a statutory tribunal and as representing or sitting as the court was adverted to in In re Margarum, 26 Id. 12.
In Fishblatt v. Atlantic City, 51 Vroom 269, a similar reservation was made, but in neither of the last two cases was the point involved. Our own view agrees with that of Mr. Justice Port in the Brown case. Without going into the powers of the Supreme Court, irrespective of statutory provisions, we think that it was competent for the legislature to facilitate the transaction of common business by making it cognizable before a single justice at chambers. This was the view expressed by Mr. Justice Potts in Wood v. Pithian in 1855. Section 5 of the Certiorari act is therefore, in our opinion, constitutional and a valid exercise of legislative power.
Prom this it results that the judgment ordered entered by Mr. Justice Swayze is a final judgment of this court, and reviewable only by writ of error, and cannot be struck from the record as a nullity.
This brings up the second, or alternative motion, to review the judgment as a determination of a single judge at chambers under the practice indicated in Key v. Paul, 32 Vroom 133. But the justice was sitting in this case as the practice branch of the Supreme Court and his decision is not subject to such review. Garbett v. Mountford, 41 Id. 577.
The motions will be denied.