Mayor and Common Council of City of Newark v. Kazinski

• Citation: Mayor and Common Council of City of Newark v. Kazinski, 90 A. 1016, 86 N.J.L. 59 (N.J. 1914)
• Decision Date: 17 June 1914
• Court: New Jersey Supreme Court
• Parties: THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK, PROSECUTOR, v. STEPHEN KAZINSKI ET AL

90 A. 1016

86 N.J.L. 59

MAYOR AND COMMON COUNCIL OF CITY OF NEWARK

v. KAZINSKI.

Supreme Court of New Jersey.

June 19, 1914.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Essex County.

Stephen Kazinski was convicted of violating a city ordinance, and the judge directed the proceedings to be brought to the court of common pleas, and the Mayor and Common Council of the City of Newark bring certiorari. Affirmed.

Argued February term, 1914, before GARRISON, TRENCHARD, and MINTURN, JJ.

Herbert Boggs, of Newark, for prosecutor. Henry Carless, of Newark, for defendant.

TRENCHARD, J. The defendant, Stephen Kazinski, was convicted in the second criminal court of the city of Newark for violating a city ordinance and a fine was imposed upon him.

Pursuant to the provisions of chapter 228 of P. L. 1908 (page 442), an order was made by the judge of the Essex common pleas directing that the proceedings had in the second criminal court be brought before the court of common pleas for review. This writ brings up for review that order.

The act P. L. 1908, p. 442, provides that:

"Upon application to the justice of the Supreme Court holding the circuit * * * or the president judge of the court of common pleas * * * by any person who has been convicted in any summary conviction had before any police justice, * * * who desires to have the legality of his conviction reviewed, such justice of the Supreme Court or president judge of the court of common pleas, shall order the complaint, warrant, proceedings and record of conviction to be forthwith brought before him, that the legality of such proceedings and conviction may be reviewed and determined. * * *"

The prosecutor argues that this act, in so far as it attempts to confer upon the court of common pleas power to review proceedings of the police courts is unconstitutional, as, in effect, conferring upon the common pleas court the power to review the proceedings of an inferior tribunal by certiorari. We are of opinion that there is no merit in the contention.

It is true that in Dufford v. Decue, 31 N. J. Law, 302, Green v. Heritage, 64 N. J. Law, 567, 46 Atl. 634, and Flanagan v. Plainfield, 44 N. J. Law, 118, it has been held that the circuit court cannot be given certiorari power no matter under what name, for the reason that it is incompetent for the Legislature to deprive this court of its use of its prerogative writs to supervise the proceedings of inferior tribunals; but such is not the effect of the statute here invoked.

In Green v. Heritage, 64 N. J. Law, 567, 572, 46 Atl. 634, 635, it was said by Justice Van Syckel:

"A writ of error may at the option of the litigant, be taken directly from the circuit court to the Court of Errors, thereby passing the Supreme Court. To the extent that the power of the circuit court is amplified in this respect, what Chief Justice Beasley (in Dufford v. Decue, 31 N. J. Law 302) terms an anomaly is produced, and necessarily the exclusive jurisdiction of the Supreme Court is contracted and impaired."

In Flanagan v. City of Plainfield, 44 N. J. Law, p. 118, the question was whether or not the circuit courts could be empowered to issue the...