33 N.J.L. 344 | N.J. | 1869
Peter Kerrigan was held by the jailor of
Hudson county under a commitment signed by James Pope, as recorder of the city of Hoboken, for an alleged contempt in using insulting language to him while sitting in the trial of certain persons for violating a city ordinance, in not cleaning sidewalks and gutters. For this offence he summoned him to appear and answer, tried and found him guilty of contempt of court, and ordered him imprisoned in the county jail for fifteen days. The writ of habeas corpus was issued and made returnable at chambers, and referred to this court for determination. The chief question involved is as to the jurisdiction of the recorder to commit in execution for this contempt. The recorder is elected under a supplement to the act to incorporate the city of Hoboken, approved March 21st, 1865, (Laws 1865, p. 412,) and given all such powers and authority in the city of Hoboken as were conferred by law upon the recorder in Jersey City. By the act to incorporate Jersey City, (Laws 1851, p. 398, § 16,) the recorder of Jersey City has all powers, in criminal matters, that justices of the peace in and for the several counties of the state have, and like powers with the mayor, to cause to be arrested and committed, without process, any person guilty, or that he may have reason to believe guilty, of any crime or misdemeanor, or breach of the peace, and to try all causes and complaints arising from the violation of any city ordinance. By a supplement of April 12th, 1864, (Laws
That includes the courts of Westminster, the courts of Nisi Prins, Oyer and Terminer, Quarter Sessions, and others of the grade of courts of record in the course of the common law. To this rule there may be an exception in the Court Leet, so far as punishing by imprisonment is concerned, the usual mode of punishment in that court being by fine, and therefore the power to imprison for contempts in that court lias been questioned. But without discussing the exceptions, it is sufficient to say that the rule is generally as stated, and is not extended to the county courts of England, or any below’ the grade of courts of record. And as early as Griesley’s case, already cited, (during 30th Elizabeth) it was resolved, in the Common Pleas, that courts which are not of record cannot impose a fine, or commit any to prison, for contempts. A power to fine or imprison in such cases, although necessary for the proper discharge of the duties of a court not of an inferior jurisdiction, and for the maintenance of its independence and dignity, should not belong to all persons, bodies, or tribunals, who may have a judicial duty to perform. The common law, wisely, did not recognize it in courts below those of record; and we would be doing violence to the liberty of the citizen to encourage its existence in any of our own courts, except those that, in their very nature, or from analogy to their English models, or in their constitution, are courts of record, with jurisdictions not
As a ministerial officer, tire recorder could not commit by way of punishment. The powers of a justice of the peace were originally ministerial entirely, (Schrœder v. Ehlers, 2 Vroom 146,) consisting chiefly in preserving the peace, receiving complaints, issuing his summons or warrant, taking the examination of witnesses, and of the informant, binding them over, and bailing or committing the accused. 3 Black. 354, vote. In the discharge of all his ministerial duties, I can find no English case that directly establishes a right to punish for contempts. He may require security for the peace, or commit in default thereof, or take recognizance to appear at the oyer or sessions, or commit in default of bail. For immediate relief, he could remove the offender from his presence, and for personal redress for words against him in his official character could maintain an action. There are some dicta in cases imperfectly reported, giving encouragement to the existence of the power claimed in the magistrate, but there is no adjudication that I have discovered in the English hooks directly on the point, and as late as 1822, in the King’s Bench, the power was questioned as it had been before, and the court avoided expressing any opinion upon the subject, deciding the case on another ground, (King v. James, 5 Barn. & Ald. 894,) and we ought not to hold it to be possessed under the ministerial duties of the magistrate, without a direct recognition in the common law. It is well to remark that some expressions of judges have been embodied in the texts of authors, as gathered from the dicta referred to, which have given color to the notion that a justice of the peace, as a magistrate, may punish for con-tempts, in his presence, but they are entirely destitute of the force of decision, and may be mostly explained by the indefinite use of the word commit, not discriminating between its use in the sense of committing in default of sure
The recorder being only a judge in summary proceedings, and without ministerial power to commit in execution, his action was entirely outside his jurisdiction. If Kerrigan was guilty of contempt towards the recorder, while in the execution of his office, and on that point no opinion is intended, his offence could only be punished by indictment, and not under any of the summary powers of the recorder. The offence is indictable at common law, and Kerrigan had a right to be tried in the usual way, before a jury. To compel sureties for the peace, or bail to answer an indictment, or to commit in default of either, besides the other remedies stated, are powers sufficiently adequate to protect these inferior jurisdictions from obstruction, and he who disturbs them, although they may be inferior in a legal sense, should understand by the penalties of a conviction on an indictment, that they perform a very important and necessary part in the administration of the laws, both general and local, and will receive the full protection that punishments for misdemeanors can secure. The proceedings before the recorder were void, and Kerrigan must be discharged.
The Chief Justice, and Justices Dalrimple and Depue, concurred.