Conger v. Convery

• Citation: 20 A. 166,52 N.J.L. 417
• Decision Date: 15 June 1890
• Court: New Jersey Supreme Court
• Parties: JOHN H. CONGER v. PATRICK CONVERY

20 A. 166

52 N.J.L. 417

CONGER

v. CONVERY.

Supreme Court of New Jersey.

June 5, 1890.

(Syllabus by the Court.)

Case certified from circuit court, Middlesex county; before Justice SCUDDER.

A petition was presented in the Middlesex circuit court on the 12th day of November, 1889, by John H. Conger, contestant, against Patrick Convery, incumbent, duly verified and indorsed by more than 15 qualified electors of the county of Middlesex, as required by "An act to regulate elections,"(Revision, p. 356, § 104;) whereupon the court appointed December 3, 1889, as a suitable time for hearing such complaint, of which due notice was given to the incumbent pursuant to the statute.At the time appointed both parties appeared in person and by counsel.Neither party objecting to the jurisdiction of the court, or demanding a trial by jury at that time, (nor until the testimony on both sides had been closed,) the judge of the circuit court proceeded to hear the cause.Testimony was offered and heard on the part of the contestant to show that, in the first polling precinct of the Sixth ward of the city of New Brunswick, 173 ballots were deposited in the ballot-box voting for John H. Conger for the office of county clerk, whereas the return made by the officers of election was that he received but 100 votes for said office; that the total majority of the incumbent for said office in the county of Middlesex was 16 votes, according to the return of the board of county canvassers, and that the difference was sufficient to change the result.Testimony was also offered and heard on the part of the contestant that the ballots in the ballot-box were not all "punched and milled," showing, as was claimed, that a large number of ballots sufficient to change the result had not been put in the box regularly, but by fraudulent substitution for other ballots voted for the contestant.Testimony was also offered and heard on the part of the incumbent to show the imperfect condition of the box, and opposing the proofs offered on the part of the contestant.At the time of the filing of the petition the said Patrick Convery had received his certificate of election, and between the time of presenting said petition and making the order for hearing and the time of said hearing, the term of the former clerk having expired, he was inducted into office, and since that time has acted as clerk of the county of Middlesex and of the circuit court.Both parties having closed their evidence, a day was appointed for hearing the argument of counsel, as well on the facts as on the question whether the court had jurisdiction under the statute to hear and determine the issues between the contestant and incumbent.At the day and place appointed the parties and their counsel appeared, and arguments were made; the court being of the opinion that the question of jurisdiction is one of doubt and difficulty, and preliminary to any decision of the facts in the case, does hereby certify the same to be argued at the bar of the supreme court, at the next term thereof, for its advisory opinion, pursuant to the statute, of which the counsel of the contestant shall give notice, and cause this certificate to be filed by the clerk of the supreme court, the costs to abide the result.The points thus certified are as follows: "(1) Can the judge of the circuit court 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?(2) Can the said judge, finding the incumbent to be in the possession of the office of the county clerk, if the judgment be against him and in favor of the contestant, issue an order to carry into effect the judgment of the court, under the seal of the court, commanding the sheriff of the county to put the contestant into possession of the office without delay, and to deliver to him all books, papers, and effects belonging to the same?(3) Were the parties respectively entitled to a trial by jury under the statute, on demand, and, if so, did they waive said right by failing to demand such trial, thereby enabling the judge to try the cause without jury, and within the terms of the statute?The above case of doubt and difficulty is most respectfully certified to the supreme court for its advisory opinion.E. W. SCUDDER, Judge.New Brunswick, December 31, 1889. "

BEASLEY, C. J.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 estabished by law, which inferior courtsthe legislature may alter or abolish, as the public good shall require."Article 6, § 1.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 de-marked, 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," has 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, have their 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 that called them into existence.A presumption of such inviolability would, indeed, be justified by a consideration of the nature of the thing 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 legislature may alter or abolish only those inferior courts that may be erected by its own fiat.This doctrine that...