Dubelbeiss v. Town of W. Hoboken

• Decision Date: 15 March 1911
• Citation: 81 N.J.L. 98,79 A. 290
• Parties: DUBELBEISS v. TOWN OF WEST HOBOKEN.
• Court: New Jersey Supreme Court

79 A. 290

81 N.J.L. 98

DUBELBEISS

v. TOWN OF WEST HOBOKEN.

Supreme Court of New Jersey.

March 15, 1911.

Syllabus by the Court.

Certiorari by Eugene Dubelbeiss against the Town of West Hoboken. Motion to strike out rule for judgment after hearing before single justice denied.

Argued November term, 1910, before REED, PARKER, and BERGEN, JJ.

Merritt Lane, for the motion.

Edwards & Smith, opposed.

PARKER, J. The principal point of attack in this proceeding is section 5 of the certiorari act of 1903 (P. 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 assigned thereon; provided, if the action be not noticed for argument before a justice at chambers within fifteen days after reasons filed, the hearing shall be before the Supreme Court as heretofore."

This statute was followed in the present case, and at the time for which argument was noticed counsel for respondents appeared before the justice, objected to the case going on, and requested that the hearing be had 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 be stricken from the files.

The holding of the Supreme Court by a single justice is nothing new in our judicial system. In 1799 (Pat. 393) the Legislature enacted that the Supreme Court might be held by the Chief Justice or any one of said (Associate) Justices, and in 1845 it provided for what is known as the "branch court" in these words: "That it shall he lawful for the Justices of the Supreme Court, at every term thereof, to designate, in such way as to them shall deem 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 be as good and effectual as if they had been rendered at the bar of said court."

This last sentence was questioned in the case of Wood v. Fithian, 24 N. J. Law, 838, in the Court of Errors 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 be of sufficient importance to consider at length so that any question might, as far as was practicable, be set at rest. It was held (1) that a branch court of one justice was a constitutional Supreme Court; (2) that a certiorari to the common pleas on appeal was "common business." On pages 840 and 841 of 24 N. J. Law, it is said: "The act was undoubtedly passed under the impression that the power to regulate the practice and modes of proceeding in the Supreme Court embrace the power of making provision for the facilitation of suits and the dispatch of business. That as the power was undoubtedly in the Legislature of enacting that all these matters of common business might be heard by a justice at chambers, it had the power to say that one or more justices in term time might hear and dispatch this same business, sitting as the Supreme Court, in a separate chamber from the justices who were engaged in hearing cases on the paper. It was not two Supreme Courts which the act contemplated, but one court, dispatching different classes of judicial business, by its different members, at the same time." See, also, Gray v. Bastedo, 40 N. J. Law, 453, 459.

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 of three justices, or two, or only one. For many years there have been two branch courts to hear common business, and recently the practice 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 tune both of court, counsel, and litigants; an economy now essential in view of the increased business of the courts.

Section 5 of the...