Ex parte Hague

• Decision Date: 05 December 1928
• Citation: 143 A. 836
• Parties: Ex parte HAGUE.
• Court: New Jersey Court of Chancery

143 A. 836

Ex parte HAGUE.

Court of Chancery of New Jersey.

Dec. 5, 1928.

(Syllabus by the Court.)

In the matter of the application of Frank Hague for a writ of habeas corpus. On petition of the Senate and General Assembly for an order removing the proceedings. Petition dismissed.

On petition of the Senate and General Assembly of the state of New Jersey for an order removing habeas corpus proceedings instituted by Frank Hague before John J. Fallon, Vice Chancellor, and for their further hearing before the Chancellor himself, on the ground that the Vice Chancellor is biased and prejudiced in favor of Hague.

Russell E. Watson, of New Brunswick, for the Legislature.

Thomas J. Brogan, of Jersey City, and Merritt Lane, of Newark, for Hague.

WALKER, Chancellor. Section 6 of the petition, which contains the subject of the complaint against the Vice Chancellor, is as follows:

"6. Said John J. Fallon, Vice Chancellor, is prejudiced and biased, and incapable of rendering and advising an impartial judgment because—

"(a) Of the failure of the Legislature of the State of New Jersey to confirm his appointment as Prosecutor of the Pleas of Hudson County by the Governor of New Jersey in 1923.

"(b) The activities of the said John J. Fallon, as Corporation Counsel of the City of Hoboken and County Counsel of the County of Hudson, have been under investigation by the said Joint Committee with reference to the award of a contract by the City Commission of the City of Hoboken to James J. McFeeley, a brother of Commissioner Bernard N. McFeeley of the City of Hoboken, while the said John J. Fallon was Corporation Counsel of the City of Hoboken, with reference to the appointment of Franklin Minturn, as Secretary to the County Counsel, while the said John J. Fallon was County Counsel of Hudson County, as appears by the record of the proceedings of the said Joint Committee, the investigation of the latter incident having been replied to by the said John J. Fallon in the public press, and the motives of the said Joint Committee assailed by the said John J. Fallon, as appears by a news article in the Jersey Journal of September 14, 1928, a copy of which is hereunto attached.

"(c) The said John J. Fallon, while County Counsel and Corporation Counsel as aforesaid, and at other times, was a prominent and active merrber of the political organization of which the said Frank Hague was and is the reputed leader."

Upon the hearing before me, counsel for the Legislature moved to amend the petition by adding ground omitted from it, but intended to be stated therein, as follows:

"Because (d) John Milton had acted for Hague in the transactions in which real estate was involved, handling vast sums of money; that Mr. Hague had used Mr. Milton's office, adjoining the Chancery Chambers for submitting to arrest, and that Mr. Milton was an intimate friend of the Vice Chancellor."

This was not objected to, and was admitted. I had expected it would be put in writing and filed. It was doubtless the intention of counsel to do so, but, in the laborious work connected with this case, it does not appear to have been done; so I have been obliged to draw upon my memory as to what occurred. There was some elaboration upon what is here recited, but sufficient has been stated to indicate the scope of the amendment. It has been considered and is involved in the decision of the issue in the case before me.

While this is a habeas corpus secured by Frank Hague from Vice Chancellor Fallon, the real parties in interest are the two houses of the Legislature and also Mr. Hague. For brevity's sake, the applicant will be called the Legislature, and the respondent, Frank Hague, will of course be referred to by name. It may be remarked, by the way, that Mr. Hague is a prominent man, being mayor of Jersey City, standing high in the councils of his party, national, state, and city.

So we have a case here in which the Legislature, representing the state, is one of the parties; but, be it said, and it was conceded on the argument, that because the Legislature is one of the parties and has appealed to the court, it stands before the court in exactly the same situation as does the other party. It is true that the Legislature represents an independent branch of the state government, but in the eye of the law justice is even and exact, and no litigant, not even the state, is a preferred suitor, except as to speeding cause, hereinafter stated. And nothing on the score of prominence was claimed for Mr. Hague, nor could it have been. An apt illustration may be referred to: When a man is prosecuted for a crime, and if convicted might be fined and imprisoned, or even forfeit his life, by whom is he prosecuted? The state! The trial is presided over by an impartial judge, who charges the jury on the question of the benefit of doubt, and the presumed innocence of the defendant unless and until he be convicted by the jury, which he should be if proven guilty. The state and the defendant are, by the judge, treated alike.

The proceeding before me, namely, one to take an unfinished cause pending before a Vice Chancellor from him and conclude the hearing myself, is conceded to be novel. It certainly is one of first impression in this state, and, having been given the fullest consideration, it will now be decided upon the law which governs this class of cases.

Never yet, to my knowledge, and it is quite extensive, has an application been made to this or any other court to take a partially tried case out of the hands of a judge before whom it is pending upon the grounds here urged, but I am referred to the case of W. D. Cashin & Co. v. Alamac Hotel Co., Inc., 98 N. J. Eq. 432, 131 A. 117, as authority for the proposition. In that case a decree of foreclosure had been entered and an execution issued to the sheriff, who had advertised the sale of the property; whereupon the Alamac Hotel Company obtained an order to show cause before a Vice Chancellor why the sale should not be adjourned to enable it to effect a reorganization and raise money to pay the mortgage debt, with a stay in the meantime. The Bankers' Trust Company preferred a petition to me to vacate the order and stay, and I held that the application upon which the order to show cause was granted disclosed no equity, that is, no right of action; that the Bankers' Trust Company had an absolute right to enforce its decree and could not be hindered and delayed in the recovery of its mortgage debt by anything short of a sufficient defense made before decree or by defensive matter of some sort arising after decree, going to its enforcement, and none such was shown to exist. That case was not one to remove a Vice Chancellor for bias, and is clearly to be distinguished from the application presently before me. If here the Legislature had denied the power of this court to take jurisdiction of the matter because of settled law to the contrary, and that therefore Mr. Hague was not entitled to prosecute the writ, a question would be presented somewhat analogous, doubtless, to that in W. D. Cashin & Co. v. Alamac Hotel Co., Inc. No such claim is made, and such is not the case.

But that the courts have jurisdiction in this class of cases has been settled beyond the peradventure of a doubt. See Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377 (1880), Supreme Court of the United States; McGrain v. Daugherty, 273 U. S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. K. 1 (1926), Supreme Court of the United States; Cunningham v. Barry, 29 F.(2d) 817, opinion filed November 26, 1928, in the United States Circuit of Appeals, Third Circuit. Jurisdiction in this court was not questioned.

Now we go to the merits of this case. It is alleged that prejudice on the part of the Vice Chancellor exists, because the Senate of New Jersey failed to confirm his appointment as prosecutor of the pleas of Hudson county by the Governor in 1923. It is significant to know that the Senate of 1923 is not the Legislature of 1928. While some of the same members are still in the Senate by reason of re-election, it cannot be said, especially as matter of law, that Mr. Fallon was prejudiced for all time against the Senate generally, and that he therefore cannot fairly decide a case in which the Legislature is a party, and of which he has cognizance, because of his failure of confirmation five years ago. In this failure of confirmation nothing is shown to his discredit. He was not rejected by the Senate, but his name, after confirmation being withheld for considerable time, was withdrawn by the Governor. Presumably there was some political objection to his confirmation, but what it may have been has not been exploited before me, and I have no information concerning it. In fact I had forgotten all about the instance, and, doubtless, never knew anything beyond the mere fact, and know nothing more now.

It is further stated that, because Mr. Fallon was corporation counsel of Hoboken, and county counsel of Hudson county, which were under investigation, as county counsel he appointed a secretary, as appears by the record, that he made statements in the public press, concerning that appointment, etc., and because Mr. Fallon, while county counsel and corporation counsel, and at other times, was a prominent, active member of the political organization of which Frank Hague was and is the reputed leader, and because he was intimate with John Milton, who acted for Hague, as stated, he is biased and prejudiced against the Legislature, whereby he is disqualified to sit as judge in this case.

But prejudice growing out of business, political, or social relations is not sufficient to disqualify a judge. 33 C. J. p. 1001. And prejudice against the cause or defense of a party is not a disqualifying prejudice. 33 C. J. p. 1001.

Generally it is held that an interest which a judge has in common with many others in a public matter is not sufficient to disqualify him. 33 C. J. p. 995.

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