21 N.J. Eq. 424 | N.J. | 1869
Lead Opinion
By an act of the legislature of this state, approved the 17th of February, 1869, it is provided that “all persons aggrieved by any order or decree of the Prerogative Court, may appeal from the same ” to this court, “ in the same manner in all respects as now provided by law for appeals from the Court of Chancery.” The present case is now before us by virtue of this provision, and a motion is made to dismiss this appeal on the ground that the statute above recited is in conflict with the Constitution of this state. The important question thus presented has been argued by distinguished counsel on both sides with pre-eminent zeal, learning, and ability, and this court has given it that full consideration which is due to every case involving the construction of that fundamental law which regulates and controls, in all its departments, the government of the state.
There are two primary principles which are always to bo borne in mind in the discussion of every question touching the limitations of the authority of the legislature of the state. The first of these is, that the legislative body is supreme, in. every respect, except in the enumerated instances of constitutional restraints; and next, that such restraints cannot bo imposed but by plain language, or by implication necessarily springing from the co-ordination of the several parts of the established system of government. It is evident, therefore, that the present motion cannot prevail, unless it can be made plain to the mind of the court that some provision of the Constitution exists which prevents the assumption by the
The /proposition to be considered then, is, not whether doubts exist as to the power of the legislature to enact the law in question, but whether it is positively certain that such power has been taken from them. I will examine the question in this light.
Section 1 of Article VI of the Constitution, is in the words following: "The judicial power shall 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 shall require.”
And by the last clause of section 1 of Article X, it is further ordained that “ the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction as if this Constitution had not been adopted.”
These are the general provisions providing depositaries for the judicial power.
In an examination of these sections the first thing which attracts attention is this : that the instrument itself establishes certain courts. It does not leave that all important work to other hands. An omission in this respect in the Constitution would have left the judicial system without any fixity whatever. In such a state of things, the powers, jurisdictions, and even the very existence of the several courts would have been placed under the control of the legislature. They could have been altered or abolished by that body at will. But the -convention had no such pur
And it is at this point that the controversy in this case supervenes; for it is insisted that the act of the legislature giving an appeal in this case has a two-fold operation, inconsistent with the Constitution; first, in extending the powers of this court; and second, in curtailing the power of the Prerogative Court.
First, then, in regard to its effects upon this court.
It is admitted, and is indisputable, that from the surrender of the proprietary government to Queen Anne, in 1702, to the present time, neither this court nor its provincial prototype, has ever claimed any supervision over the decrees of the Prerogative Court. The legislature has now
Now it is obvious to remark, that in such a jurisdiction . there is nothing inconsistent with the nature of this court. It is constituted expressly “ a Court of Errors and Appeals in the last resort in all causes,” and it is therefore undeniable that the placing a new class of cases within its control is in complete harmony with its structure. It seemed to be conceded indeed, upon the argument, that the jurisdiction now claimed was not incongruous with the general character of this court, and consequently reliance was mainly placed by the counsel of the respondent on certain terms made use of in the Constitution itself. ' The words thus alluded to occur in the phrase before quoted, viz. “ The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes as heretoforethe insistment being, that the expression “as heretofore,” refers to the antecedent word “ causes,” and is thereby restrictive of the jurisdiction of the court. But in my opinion this construction is clearly inadmissible. I will state a few objections to this view, which to my mind are conclusive against it.
Thus, it involves a jurisdiction absolutely stationary and immovable in every court of the state. This results from the'fact that it is impossible to increase the jurisdiction of any of the subordinate courts without, to the same extent, increasing the jurisdiction of the court of the last resort. Thus, if a new class of cases is brought by the action of the legislature, within the grasp of the Supreme Court or of the Court of Chancery, that same class of cases, ipso facto, is put under the supervision of this court. It is not to be presumed that any one will contend that new classes of causes cannot, with legislative assent, be taken under the cognizance of the subordinate courts just referred to. I have said that the essential qualities of all the constitutional courts are indestructible and unalterable by the legislature.
But again, to look at the contention in its opposite aspect. Suppose we assume that the words “ as heretofore ” confine the jurisdiction of this court to the precise limits it possessed at the time of the adoption of the Constitution. Is the argument in favor of a dismissal of this appeal thereby strengthened ? I am not able to perceive that such is the case. I hold it is entirely clear that the jurisdiction of this
And it will also be observed this same fact disposes óf the notion broached on the argument, and which I think is entirely without foundation, that the old Constitution of this state was not possessed of the usual sanctions of such an instrument, and that it was consequently regarded as alterable by the legislature at their pleasure, and that it was on this ground that they arrogated the power to extend the control of this court over the Court of Chancery. Admitting this assumption, it cannot affect our conclusions. In fact, it is a circumstance which can be made of importance in this argument, only, as it seems' to me, by a confusion of ideas on the subject. For if, as I have just remarked, the words “ as heretofore,” investing them with all the force which is claimed for them, must, by logical necessity, be applicable to a practical and not to a visionary jurisdiction antecedently existing, it seems evident that it is a matter of entire indifference, so far as this discussion is concerned, whether such jurisdiction had been the product of legisla
It is proper here, also, to observe that in my apprehension the constitutional phrase “ all causes as heretofore,” cannot, by any just mode of exposition, be interpreted to mean any particular divisions or classes of causes. It is not practicable, in my judgment, so to restrict their signification. If they do not embrace what they clearly signify, “ all causes,” to what trains of cases are they to be confined ? Certainly, it cannot be contended that the phrase relates to causes in law and equity alone, and omits all ■ecclesiastical cases. This obviously cannot be their meaning, because it would not embrace all the cases admittedly within the province of this court. By the act of the 2d of December, 1794, the Court of Chancery was vested with cognizance over cases of divorce and alimony. They are manifestly branches of ecclesiastical jurisdiction, and consequently at the date of the present Constitution, the power to supervise in those matters existed in this tribunal. Being in the full possession then of jurisdiction in causes, some of which were legal, others equitable, and others again ecclesiastical, how can the constitutional expression, “all causes,” be held to point to any particular subdivision of causes ? There is no part of the context by which the meaning of these words can be so controlled. I can see nothing in the instrument itself which will authorize the court to constrain into narrower limits-the generality of the expression.
Nor should it be overlooked, that by holding this phrase, “ all causes as heretofore,” to be descriptive of jurisdiction, they are imperfect even for that purpose; they will not properly describe that jurisdiction which the counsel of the
In fine, upon this topic, I remark, that in my opinion this expression “as heretofore,” is. almost valueless as a phrase of jurisdictional description. In my apprehension nothing can be more evident, than that all the courts designated in the Constitution must of necessity be possessed of their certain jurisdictions. What is the jurisdiction of the Supreme Court, if it is not that power with .which it was endowed at the time the Constitution was established ? As the province of that court is not defined in the Constitution, by inevitable intendment its primitive constitution remains. Its jurisdiction, then, speaking as of the date of the Constitution, is “as heretofore;” and so is, the jurisdiction of every other constitutional tribunal; and it. is this jurisdiction which has been placed beyond the reach of the legislative power. But as I have already remarked, an aptitude for enlargement, from the inherent nature of judicial institutions, appertains to every constitutional court. And the consequence is, that when the Constitution vests power in a court “ as heretofore,” and declares that the several courts shall continue with like powers and jurisdiction as though the Constitution had not been adopted, the effect is, that the primitive powers of such tribunals remain inalienably established, while at the same time there is implanted in them that principle of development by which their cognizance may be extended over new cases as they arise, and which principle is a part of their very nature and eonstit
This result introduces the next branch of the inquiry.
Second. Does the act in question, in a constitutional point of view, alter or impair the constitution or jurisdiction of tne Prerogative Court ?
This point was not much insisted on, and I shall dispose v of it very briefly.
The Prerogative Court has constitutional sanction, and according to the principles already propounded, cannot be shorn of any of its inherent functions or substantial jurisdiction. Consequently, we must look at its constitution to ascertain if the law under review has such effect.
This court has always been possessed of certain branches of jurisdiction which reside in the ecclesiastical tribunals in England. Hence, it has ever been regarded as an ecclesiastical court, and therefore does not properly come under the denomination of a court of law or equity. And it is certainly somewhat remarkable, that in section 1 of Article X of the Constitution, which in express terms, clothes the courts with their ancient powers, this court is not included. The language is, “the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction as if this Constitution had not been adopted.” This language will not, in strictness, comprehend the Prerogative Court, and from this omission an argument might be drawn that its powers and jurisdictions are not so fully guarded by the Constitution, as are those of the courts which are embraced within the description of the clause. But on this circumstance I shall at present place no stress, but shall consider this tribunal as established, perpetuated, and protected, to the full extent by the Constitution, The question then arises, is there anything in the
At the time of the surrender of the proprietary government to Queen Anne, the whole of the ecclesiastical jurisdiction over New Jersey was reserved to the Bishop of London, excepting only the collating to benefices, granting licenses to marry, and the probate of wills, which were-granted to the governor.
By the Constitution of 1776, the only ecclesiastical court that was preserved in our system was that of the Ordinary. That office being placed, as it had formoidy been, in the-governor of the state. In the act of the 16th of December,, 1784, (Pat. Laws 59), it is declared “ that from and after the passing of this act, the authority of the Ordinary- shall extend only to the granting of probates of wills, letters of administration, letters of guardianship, and marriage licenses, and to hearing and finally determining all disputes that may arise thereon.” By the same act, original jurisdiction in matters of probate and of administration, with an appeal to the Prerogative Court, was conferred on the Orphans' Court, a tribunal created for that purpose. By this and subsequent statutes, various powers of a most important character were vested in this subordinate court, such as the final settlement of the accounts of executors, administrators, and guardians, the partition of the lands of minors, and the sale of the lands of deceased insolvents. The superintendence of the exercise of these supcradded functions was given to the Supreme Court by certiorari. Nor did the-legislature hesitate to transfer to the Orphans’ Court powers which the Prerogative Court had before exercised. An instance of this will be found in section 27th, in the act of the 13th of June, 1820, (P. L. 784), which provides that the powers and duties formerly exercised and performed by the Ordinary, relative to the admission of guardians for persons under the age of twenty-one years, should thereafter be performed by the Orphans’ Court, subject to an appeal to the Prerogative Court. And in this same statute
The Constitution of 1844 then came into existence, establishing the Prerogative Court and giving it an appeal over every decree of the Orphans’ Court. That large body of decrees of the Orphans’ Court, in matters of accounts, &c., which formerly by certiorari had been removable into the Supreme Court, and thence into this court, were thus diverted into the Prerogative Court.
From this statement it will be observed that the legislature of this state have from time to time, in many important particulars, altered and regulated the jurisdiction of the Prerogative Court, and that the powers which that court now possesses is not altogether of an ecclesiastical character, but is largely made up of purely civil business, conferred upon it by legislative and constitutional grant.
Is there any thing, then, in the nature or history of such a tribunal as this, which should make its decrees final ? I do not mean whether it is proper or politic that they should be so; but is such an incident necessarily inherent in the constitution of the court itself ? If we regard it as of ecclesiastical origin, its decisions have no claim to conclusiveness. In the English system the decrees of the Prerogative Court are subject to review in the Court of Delegates. This has been the case since the time of Henry VIII. A Prerogative Court, then, is not and never has been, from its constitution, a court of the last resort. What, then, has so modified its nature as to bestow upon it such a character in this state? If I could perceive that from its organization, or the character of its jurisdiction, the decrees of this court must be unappealable, I should feel constrained to say that the legislature could not alter their nature and make them appealable. Under such circumstances, a modication of the efficaciousness of the decrees of such a court would to be
Nor does the consideration, that an appeal from this court has never heretofore been taken, weigh much with me against this view. In the absence of a statute authorizing such an appeal, the superintending power of this court would Jie in abeyance. There is a precedent for such a course. Until the legislature intervened, as has already appeared, this court did not assume jurisdiction over decrees in the Court of Chancery. I do not incline to the view, that an appeal from the Prerogative Court to this court would have lain without the help of legislation. This court in many respects, both in matters of jurisdiction and practice, takes as its pattern the English House of Lords, a tribunal which does not entertain appeals in ecclesiastical affairs. To take such cognizance, is undoubtedly an amplification of the practice of this court, and such amplification could, properly, be effected only by the co-operation of the legislature. Under these circumstances a course of practice in this court, no matter how long continued, exhibitive of the absence of
Nor can I regard this question as res adjudieata. The case of Hillyer v. Schenck, 2 McCarter 501, has no application, as the appeal in that case did not rest in legislative authority. As to the remaining case of Anthony v. Anthony, 1 Halst. Ch. 627, the grounds of judgment are left to conjecture, as they are not shown in the report, and it is quite impossible to say on what precise reason the court acted. The argument was ex parte, and appears to have consisted in a bare suggestion of the grounds relied on. There was a circumstance in the case, foreign to the present-issue, upon which the court may have relied. Nor do I see how it can be maintained that this decision involved the construction of the present Constitution. It is true, that it was made after the present Constitution went into effect, but the appeal was taken before that event. The present Constitution preserves all actions antecedently pending, but as it could not validate one which had been erroneously commenced, the-only question which could have been disposed of in the case referred to, must have been relative to the effect of the old Constitution of 1776. The appeal had been taken in 1843, and the question was, whether a right of appeal at that time existed. Whether it existed by force of the Constitution of 1844, had nothing to do with the inquiry. A precedent so obscure and uncertain, ought not to preclude this court in the exercise of a free judgment in so important a matter as that now under consideration.
My conclusions, then, are as follows :
First. That this court, like all other constitutional courts, has not an inflexible jurisdiction, but that such jurisdiction can be extended by legislative action.
Second. That the Prerogative Court is not, by its nature, a court of the last resort, nor has it been made such by the Constitution of this state, and that consequently its decrees may be subjected 'to the superintendency of this court.
The motion to dismiss this appeal should be denied.
The question in this case is, whether it was within the power of the legislature to pass the act of February 17th, 1869, (Lazos of 1869, p. 84,) giving an appeal from the decree of the Prerogative Court.
The legislative power must be conceded, unless some provision can be shown in the Constitution of this 'state, which expressly or by necessary implication operates as a restraint upon it. Such limitation is claimed to exist in Article VI, section 1, in these words: “ The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes, as heretofore.”
x\t the time of the adoption of the first Constitution of this state, July 2d, 1776, no right of appeal to the court of last resort existed in equity cases. In that Constitution it was provided “that the governor and council (seven wdieroof shall be a quorum) shall be the Court of Appeals in the last resort in all causes of law, as heretofore.”
In 1799, twenty-three years after the adoption of this Constitution, and while the force of the words “ as heretofore,” must have been well understood, the legislature passed an act giving an appeal from decrees in chancery, and in 1820 extended that right to cases not within the act of 1799. Under these acts the right of appeal from chancery was maintained, without being questioned in this court, from 1799 to the time of the adoption of the new Constitution in 1844. Whether the act of 1799 was in violation of the old Constitution, is not necessarily involved in the discussion of this case.
The virtue of these words, “ as heretofore,” to operate as a restraint on legislative action, had received, before 1844, an interpretation which had been acquiesced in for forty-five years. The legislature had claimed and exercised the right, notwithstanding these words, to extend the right of appeal to cases in which such right did not exist at the time the first Constitution was framed.
When the convention which framed the Constitution of
The motion to dismiss this appeal rests upon the unconstitutionality of legislative enactment. Its unconstitutionality must be clear and palpable.
Every intendment must be made in favor of legislative power. Learned judges have, with great unanimity, laid down a rigid rule on this subject. Chief Justice Marshall, in 6 Cranch 128, Chief Justice Parsons, in 5 Mass. 534, Chief Justice Tilghman, in 3 S. & R. 72, Chief Justice Shaw, in 13 Pick. 61, and Chief Justice Savage, in 1 Cowen 564, have, with one voice, declared that “ it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their' incompatibility with each other.”
No express exclusion of the legislative power can be shown
The act in question is a reasonable one; it enlarges the right of the citizen; it brings the practice in the Prerogative Court into harmony with that of every other court in the state, and removes what has always been regarded as an anomalous feature in our judicial system.
The words “ as heretofore,” are used either to express the location of power, or else are jurisdictional. In the former sense, they mean that as there had been a court of last resort theretofore, so the Court of Errors and Appeals should continue to be the court of last resort in all causes, and that the legislature should not establish any court of higher power. It is doubtful for which of the two purposes they were used, but the latter seems to be the more reasonable construction. Admitting that the true reading of the clause is, “in all causes with the same power as heretofore,” what would be its effect upon the solution of this question ?
Just here occurs the radical error in the argument against the validity of the act of 18G9, resulting from a misconception of the rules of construction which must be applied to this case. The rule which governs in testing the constitutionality of acts of the national legislature cannot apply here. When we look to the constitutionality of an act of congress, it must be shown to be within the powers enumerated in the Federal Constitution; in other words, authority for it must be shown. But we have engrafted upon our state legislative system the doctrine of supremacy which belongs to the English Parliament, and when we ask the state legislature for their power to pass a given law, they reply, our power is supreme, except in so far as you can show a limitation of it in the Federal or State Constitution.
Applying this rule, the effect of the words, “with the same powers as heretofore,” would be to establish a court of
When the Constitution asserts that this court shall have the same jurisdiction as heretofore, we are led to inquire what power it had under the old Constitution. The history of legislation, in connection with the history of this court, shows that the legislature from time to time enlarged the powers of this court, but never in a single instance claimed to reduce it, and thus it indubitably appears, that under the old Constitution, this court had such jurisdiction as it had prior to 1776, and such power as legislation conferred upon it. It seems difficult to escape the conclusion that the words “ as heretofore,” in the new Constitution, were no more words of exclusion than they were under the old Constitution, and that they were intended to define, not absolutely to limit the powers of this court, and to secure them against diminution, leaving to the law maker the right to augment its jurisdiction as a Court of Appeals in the last resort. This view is supported by the last clause of pi. 1, Article X, of the Constitution of 1844, which provides that “ the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction as if this Constitution had not been adopted,” clearly indicating the right of this court to have its powers amplified to the same extent that it could have been done under the old Constitution.
If an attempt had been made to establish a court with inflexible jurisdiction, different language would have been used; so vital a matter would not have been left to doubtful and uncertain inference. Xo one can read the Constitution without being impressed with the fact, that its framers carefully avoided a strict definition of the powers of the courts; and if they had not done so, it would necessarily and inevi
There are but two reported cases in this state which bear directly on the question under discussion. The first is Anthony v. Anthony, 1 Halst. Ch. 627; in which an appeal taken by virtue of the 7th section of the act concerning dower, passed February 24th, 1820, (Elmer’s Dig. 145), from the final decree of the Ordinary, approving and confirming the report of commissioners assigning dower to Elizabeth Anthony, was dismissed. No opinion in this case is reported, nor is the ground upon which the dismissal rested, stated by the court. The history of the case shows that the appeal had been taken in 1843, and was dismissed in 1846. It was argued ex parte, and the court dismissed it for want of jurisdiction, without giving us the reasons which led to that result. A want of jurisdiction in that case might have rested upon a reason that would not apply here. A special power was given to the Ordinary in relation to dower; the same power might have been conferred upon a master in chancery, or a commissioner, and it is questionable whether the right to supervise persons exercising a special statutory authority, which, under our judicial system, inheres in the Supreme Court, could be taken away by legislative act. If it could in one case, it might in every case, and thus one of the very highest and most important functions of the court would bo endangered, if not destroyed. But if this view was not taken in that case, it is highly improbable that the court after full argument would have admitted a want of jurisdiction, when for so many years their right to hear appeals from chancery rested on no better foundation. There
The other case referred to is Hillyer v. Schenck, 2 McCarter 501; to which it is a sufficient answer to say, that at that time there had been no legislative action authorizing an appeal to be taken.
The legislature, under the old Constitution, in passing the acts of 1799 and 1820 respecting apjieals from chancery, and the supplement of February 24th, 1820, to the act concerning dower, and under the new Constitution in passing the act of February 26th, 1858, giving a review by this court of proceedings in criminal cases by writ of error directed to the Oyer and Terminer, have construed the Constitution liberally, and have not treated the words “ as heretofore,” as words of strict limitation. A like liberality has been manifested by the Supreme Court, and the court of last resort, in 2 Southard 861, 2 Green 223, 7 Halst. 368, and other cases readily referred to, in reviewing cases which had never arisen prior to the formation of the first Constitution.
It was intimated that no argument can be drawn from legislation under the first Constitution, because then the legislature, like the English Parliament, was supreme, and had a right to pass the act of 1799, even against an express interdiction. This is an entire misapprehension of the character of the first Constitution, as must be apparent from our judicial history, showing that the constitutionality of legislative acts passed in review before the courts. In the very case cited of Anthony v. Anthony, the question of constitutionality was raised. Certainly Mr. Griffith would not, in his Law Register, have so earnestly insisted upon the unconstitutionality of the act of 1799, unless it was well understood in his day that the legislative will must act within certain prescribed limits.
There is another fact in the history of legislation on this.
It is also a noticeable fact that the new Constitution takes away from the Supreme Court the power to review by certiorari the proceedings of the Orphans’ Court, in cases where the Orphans’ Court has jurisdiction, and has enlarged the power of the Prerogative Court by giving to it that right of review. It should require clear language to load to the conclusion that it was intended 'in those cases to prohibit the legislature from giving an appeal to the court of last resort, such right having existed under the old Constitution.
It is very difficult to conceive of any reason which could have influenced the framers of our Constitution to put it beyond the power of the law maker to give an appeal from the decree of the Prerogative Court. It was not, as will hereafter appear, because an appeal from the Prerogative Court to the judges of the common law courts was unknown to the judicial system from which our own was borrowed. It was not for the reason that the decrees of the Ordinary were invested with peculiar sanctity, for the Chancellor, from whom an appeal was given, was made Ordinary; and it could not have been from any want of confidence in the court of last resort, because matters of the highest concern in all the other courts wore placed within their review.
There is, therefore, nothing in the language of the Constitution itself, or in the interpretation it has received, either
It may be urged that while the legislature has power to extend the jurisdiction of this court, it has no right to abridge the powers of the Prerogative Court, and that one of the essential powers of that court is the finality of its decrees. If, under the English system, finality had been a feature of the Prerogative Court, the argument would have great force; but in view of the fact that the Prerogative Court in England is subject to appellate jurisdiction, no possible difficulty can be suggested in the way of subjecting its decrees to appeal here, which would not have applied with equal force to decrees in chancery, for both courts •were adopted in this state without the right of appeal.
It was warmly urged upon the argument that although there is aii appeal in England from one ecclesiastical court to another, such a thing was never heard of as an appeal from an ecclesiastical court to common law judges, and that the framers of our Constitution could never have contemplated any such thing. This argument rests upon an erroneous statement.
By the statute of 24 Henry VIII, ch. 12, sec. 8, any cause commenced before the archbishop was to be definitely determined by him without any appeal, and by the 6th section of the same act, appeals to the archbishop were to be “ definitely and finally ordered, decreed, and adjudged by him, according to justice, without any other appellation or provocation to any other person or persons, court or courts.” But by a later statute, 25 Henry VIII, eh. 19, after prohibiting appeals to the Pope, it was enacted by section 4, that “for lack of justice at or in any of the, courts of the archbishops of this realm, or in any of the king’s dominions, it shall be lawful to the parties grieved to appeal to the king’s majesty in the King’s Court of Chancery; and that-upon every such appeal a commission shall be directed under the great seal to such persons as shall be named by the King’s Highness, his heirs or successors, like as in cases of appeal
The Prerogative Court in this state owes the finality of its decrees, neither to its peculiar organism, nor to constitutional provision, but wholly to legislative enactment, {Rev. Laws 776); and there is therefore nothing in that attribute of the court which inhibits legislative interference.
But if such appeal had not been entertained in England, the answer is obvious. If those ecclesiastical courts which had appellate jurisdiction had been adopted into our judicial system, and continued under the new Constitution, the argument would have great weight. But the fact that the power of the Ordinary and the Prerogative Court, which existed separately under the English system, have been blended here, and no ecclesiastical court of appellate jurisdiction provided, repels the -presumption which otherwise might have arisen, and points strongly to the opposite inference. With equal force it might be argued that the legislative acts which give to the Ordinary powers unknown to the ecclesiastical courts, such as the act concerning drunkards, and others of like character, are void, because the framers of the Constitution could never have intended that the Ordinary
There is no difficulty suggested by pi. 5, section 2 of Article IV, in reference to the question whether the Chancellor could sit on the hearing of this appeal, for that clause clearly excludes him. iñ every case of appeal, from sitting or having a voice in the hearing or final decree.
The motion to dismiss the appeal must, for the reasons expressed, be denied.
Dissenting Opinion
dissenting.
The question here is, whether the act of 1869, granting-an appeal from the Prerogative Court, is constitutional-Courts will not declare an act of the legislature unconstitutional, unless it is shown to be so, clearly and free from all reasonable or serious doubt. It is not necessary that it should be expressly prohibited by positive words in the Constitution. Most of the cases in which acts have been declared void, as prohibited by the Federal or State Constitutions, are those in which they were held to be contrary to the intent and object declared, by a fair construction of the instrument. The legislature seldom or never intends to. violate the Constitution, and therefore few cases can arise in-which their action is prohibited by its express words.
But, beyond this requirement that the case should be free-from reasonable doubt, courts should have no leaning or intendment either way. The Constitution is the act of the. people of the state. They adopt it directly; it is almost the. only act in the formation or conduct of the government that, they directly perform. By it they determine how much of their natural rights they are willing to surrender, and how much power over themselves they are willing to place in others, to form an efficient government. In proportion to. the rights reserved the nation is free; if. all are surrendered, the government is despotic; and this, whether the power is delegated to one, or to a number. The judiciary is the
In this case, the people of New Jersey have retained the ■creation and change of the six principal courts to themselves. It is a power not necessary to make the legislature an efficient government, but can be exercised by the people conveniently. It needs no haste; and it is perhaps better that such change cannot bo made to suit the emergency of every cause that may arise. Beyond the requirement that the unconstitutionality should plainly appear, there ought to he no leaning or intendment.
There are here two questions : First, whether the Constitution directly authorizes an appeal from the Prerogative Court to the Court of Appeals. If it does, the act of 1869 is valid. But if the Constitution does not authorize it, as there is no prohibition against conferring additional power ■on any court, unless so far as the powers of the other courts are infringed on, the second question will arise, whether this act infringes on the powers of the Prerogative Court.
The Constitution divides the powers of government into three distinct departments, the legislative, judicial, and executive. It then declares that: “The judicial power shall 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 and abolish as the public good may require.”
Before that Constitution, the Court of Appeals had never been authorized to hear appeals from the Prerogative Court,
But if it was a case in which transposition was admissible, there is nothing to require it. The other provisions of the instrument show, on the contrary, that this clause was intended to operate as it reads, and thus alone will bo in harmony with its other provisions; the last sentence of the first paragraph of the' 10th Article, directs that these courts should continue, except as therein otherwise provided, with their former powers and jurisdiction. This indicates a general intention that the powers should remain unaltered. The special provision for writs of error from the circuits to this court would be entirely unnecessary, if the words creating this court gave it appellate jurisdiction over all courts, and clearly shows that the only jurisdiction understood to be conferred on this court was in such causes as it before had jurisdiction to hear. The provisions of pi. 5 and 6, in section 2 of Article VI, also show that such was their understanding.
"What the convention intended, if it was not expressed, should never be allowed to control the meaning of the words they have used; but when it is claimed that they intended something different from what is expressed, facts which show that their intention could not have been other than that expressed, are a full answer to the claim.
If this construction is correct, the Constitution did not give this appeal. But as the legislature may confer additional powers on any constitutional court, the act of 1869 is
The first section of the 10th Article provides, that “ the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction, as if this Constitution had not been adopted.” These words are not to be construed in a strict technical sense, as if it read courts of common law, but must include all courts which administer either testamentary or common law. This but affirms positively the plain implication to be derived from the other provisions regarding the courts named as the judicial power of the state, that the legislature cannot interfere with their existence or diminish their power. The special provision that certain equity powers may be conferred on circuit courts for foreclosure, is another confirmation.
The only question then is, does subjecting the Prerogative Court to an appeal, detract from or diminish its powers ? It makes it at once an inferior court; it subjects it to the Court of Appeals, and takes from it the power of making a final decision in any case. The power of determining all causes, or a certain class of causes, without appeal, is the very summit of judicial power. It is the same question, as whether it would detract from the power of a legislature before uncontrolled, to place over it an absolute veto, or whether it diminishes the power of a sovereign, to give a parliament power to reject his edicts. To state the question is to answer it. The convention deemed it necessary to provide for writs of error from circuits, and to prohibit writs of certiorari to Orphans’ Courts, and therefore must have considered the right of appeal as one of those fixed by the Constitution.
By the same reasoning that would sustain this law, the Supreme Court or the Court of Chancery, may be made subject to an appeal to the circuit, or one of them to the other.
But this whole question has been before decided in this court, and is res adjudicata. In the case of Anthony v. Anthony, 1 Halst. Ch. 627, a direct deliberate decision was
Of the twelve judges who heard the cause, six were members of the constitutional convention held within two years. All the court concurred in the dismissal, except Chancellor Halsted, who declined to vote. The appeal had been taken by a prominent member of the convention, one who would not have deserted his client if he thought the appeal sustainable, any more than lie would have endeavored to sustain it if he thought it clearly unconstitutional; ■ he did not resist the application. The motion was made by another prominent member of the convention, who based it on the want of jurisdiction, and contended that under the new Constitution his case was stronger than under the old. Both counsel had just risen from their labors as revisers of the whole statute law, and one week before this the legislature had passed the dower act of 1820, with the appeal section stricken out by the commission, and it cannot be doubted, stricken out because they thought it unconstitutional.
In the case of Hillyer v. Schenck, 2 McCarter 501, a
If there is authority in judicial decision, these should bind this court on this question. The first was made near the time of the adoption of the Constitution, and by men who were concerned in framing it. And if there is any force -in the maxim contemporánea ezpositio fortissima est, it should be regarded here.
■ The revisers finished their work without provision for such appeals. One part of their duty was to adapt the statute law to the new Constitution. If that gave this appeal, the omission was as gross, though not so mischievous, as to have left the writ of habeas corpus of no avail for want of provision by whom and when it should be granted. Twenty-four successive legislatures have been guilty of the same neglect. Except in a plain case, we should not arrive at a conclusion involving such results, even to perform that pleasant duty of a good judge, ampliare jurisdictionem.
The appeal from chancery granted under the old Constitution, may be explained by the fact that this Constitution was not viewed as restricting the legislature. It expressly vested in the legislature, not the legislative power, but the “ government of the province.” That of course included the power of making or changing a Constitution. And the provision which it contained, that each legislator should take an oath not to assent to any law which would annul or repeal three specified sections, implies both power and permission to repeal at pleasure, all other sections. Under this view, the legislature changed entirely the elective franchise, and the very style and name of the government, and many other provisions. Had the Constitution been unalterable, it did not create the Court of Chancery, or recognize its existence at all, much less in such way that the legislature had not power to abolish it, or change its jurisdiction, by adding or taking away. The Prerogative Court was in the same
So for as the question under consideration is concerned, I am gratified at the result to which the majority have arrived, although I cannot concur in it. The subject matters of the jurisdiction of the Prerogative Court are too important to be submitted to any single judge, without appeal. It is an anomaly in our jurisprudence, and with the elements of both courts as now constituted, there remains nothing of the reason that once existed, for not. giving the appeal to the appellate courts in law and equity cases.
The question being whether the appeal should be dismissed, the vote was as follows :
For dismissal — Zabriskie, C., Vail. 2.
Contra — Beasley, O. J., Belle, Clement, Depute, Kennedy, Ogden, Olden, Scudder, Van Syckel, Wales. 10.