82 N.J.L. 683 | N.J. | 1912
The opinion of the court was delivered by
This case comes to this court by writ of error removing a final judgment of the Supreme Court.
The jndgment so brought under review reversed a determination of the town council of the town of West Hoboken, dismissing the defendant in error from the police force of that town, and upon such reversal, ordered him to be restored in all tilings. The defendant in error, a patrolman, with another officer, raided the disorderly house of one He Lorenzo, arresting her and the inmates, which was followed by her conviction and the imposition of a prison sentence. Two days after the raid, she made complaint in writing to the mayor and common council of the town of
Hnder that writ, the findings of the council, together with the testimony taken upon the trial, were sent to this court. Thereafter depositions were taken before Supreme Court examiners to be used upon the argument of the writ of certiorari and were so used.
The certiorari was brought on for argument before Mr. Justice Swayze, a single justice, upon notice given by the prosecutor, pursuant to section 5 of the Certiorari act. The counsel for the town, as the argument was about to proceed before Mr. Justice Swayze, requested the court "not to hear the case, but to defer the matter for hearing before the Supreme Court at the November term, as he preferred to have the Supreme Court hear it.”
The case, however, was thereupon heard, and judgment was rendered as above recited on October 26th, 1910. After-wards on November 5th, 1910, counsel for the town served a notice upon the prosecutor- in certiorari that 'application would be made to the Supreme Court for an order striking from the files of the court the order for judgment, upon the ground that the order or judgment was not entered by any rule of the Supreme Court; that it was not the judgment of the Supreme Court, and that section 5 of the Certiorari act (Revision of 1903) (Pamph. L. 1903, p. 343) is unconstitutional, and takes away from the Supreme Court its prerogative to determine all cases on writ- of certiorari, and is an interference by the legislature with the judicial authority
At the November term, 1910, of. the Supreme Court, the case Game on to be heard upon the above notice, and after the determination of that branch of the case adversely to the plaintiff in error, this writ of error was sued out of this court on the 23d day of March, 1911.
The ample and satisfactory opinion of the Supreme Court, written by Mr. Justice Parker (52 Vroom 98), is approved by this court, and is adopted as determinative of the questions therein dealt with.
It remains only, therefore, to consider the other matters which have been assigned for error in this court.
It is argued by the plaintiff in error that the Supreme Court based its determination upon testimony taken under the writ of certiorari after the trial before the town council had been concluded; that the consideration of such testimony was error, and further, that the Supreme Court was without power to enter judgment in that court, the greatest possible relief which the prosecutor could obtain being a rehearing by the town council. This court will not inquire into the facts, the determination of the Supreme Court being final thereon. Lehigh and Wilkesbarre Coal Co. v. Junction, 46 Vroom 922.
The question therefore is confined to the propriety of the reception and consideration of the additional testimony. The amendment of the Certiorari act of 1907 (Pamph. L., p. 95) expressly provides for the taking and consideration of such additional testimony, but aside from that statute, this court has determined that when the investigation of questions of fact is required for the proper review of ordinances or other municipal proceedings, the Supreme Court has power by its constitutional jurisdiction to consider such matters of fact, and that the statute is not the source of the existence of that power. Lighthipe v. Orange, 46 Vroom 365; affirmed, 47 Id. 817.
In addition, however, to this right, there is also the statutory warrant contained in the act of 190?, supra, for such judgment. That act provides that “the court may reverse or affirm in whole or in part such * * * findings or determination, suspension, dismissal * * * reviewed.”
The judgment of the Supreme Court will be affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Trenchard, Parker, Bergen, Voorhees, Kalisoh, Bogert, Vredenburgh, Vkoom, Congdon, White, JJ. 13.
For reversal—None.