Mayor & Aldermen of Jersey City v. Thorpe

• Decision Date: 18 June 1917
• Parties: MAYOR AND ALDERMEN OF JERSEY CITY v. THORPE.
• Court: New Jersey Supreme Court

101 A. 414

90 N.J.Law 520

MAYOR AND ALDERMEN OF JERSEY CITY

v. THORPE.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court.

Herbert A. Thorpe was convicted in the First Criminal Court of Jersey City of violating an ordinance against littering the streets with refuse matter, and from a judgment of the Supreme Court affirming the conviction, the defendant appeals. Dismissed.

Frank W. Heilenday, of Jersey City, for appellant. John Bentley, of Jersey City, for appellee.

GARRISON, J. The appellant was convicted by the First criminal court of Jersey City of a violation of the provisions of section 4 of an ordinance entitled, "An ordinance concerning the littering of the streets with refuse matter," in that the said appellant did distribute hand circulars upon Summit avenue in said city.

Having been thus convicted, the appellant made application to the Justices holding the circuit of the Supreme Court in Hudson county for the purpose of having his said conviction set aside, if found to be illegal, as provided by the act establishing criminal courts in municipalities in counties of the first class.

The said Justice having heard said appeal, "under the statute in such case made and provided" ordered that the conviction of the said appellant be affirmed. This order the appellant seeks to bring before this court by an appeal.

It is too plain for argument that such an appeal is without legal foundation, not only for the reason that an appeal has not been substituted for a writ of error in the review of the judgments of courts of criminal jurisdiction, but for the more substantial reason that a writ of error does not ran directly to this court from the orders or judgments of a legislative agency such as the Justice of the Supreme Court is under the provisions of the statute under which the proceedings below were had.

Certiorari is the proper remedy; the constitutionality of the statutory review by a legislative agency is sustainable solely upon the ground that orders or judgments so made may be supervised by the Supreme Court upon certiorari. Newark v. Kazinski, 86 N. J. Law, page 59, 90 Atl. 1016.

The present appeal, therefore, brings nothing before this court, and must consequently be dismissed.

It may be well to point out to counsel for the appellant that he has no right to argue in an appellate court constitutional questions based upon a stipulation entered into for the purpose of such...