Mayor v. Richardson

• Decision Date: 14 February 1905
• Citation: 71 N.J.L 458,59 A. 897
• Parties: MAYOR, ETC., OF EAST ORANGE v. RICHARDSON.
• Court: New Jersey Supreme Court

59 A. 897

71 N.J.L 458

MAYOR, ETC., OF EAST ORANGE

v. RICHARDSON.

Supreme Court of New Jersey.

Feb. 14, 1905.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Edward G. Richardson, from a conviction of violation of an ordinance of the city of East Orange. Dismissed.

Argued February term, 1904, before HENDRICKSON and PITNEY, JJ.

Howe & Davis, for prosecutor.

Philemon Woodruff, for the city of East Orange.

PITNEY, J. This certiorari was sued out for the purpose of reviewing a supposed conviction had in the recorder's court of East Orange against the prosecutor for a violation of section 166 of the code of ordinances of that city. The record returned by the recorder shows a complaint made in writing, under oath, against the prosecutor, and a summons issued thereon, reciting the complaint and requiring the prosecutor to appear before the recorder at a specified time and place to answer the complaint, and shows further a transcript of the recorder's docket, wherein, after recital of the complaint, and the summons and return thereof, there appears this entry, under a date corresponding with that specified in the summons for the appearance of the defendant, viz.: "The defendant appeared and pleaded guilty, and paid the penalty of $10." Subsequent entries show that a few days later the defendant's attorney moved that the case be reopened on the ground of newly discovered evidence, and because when the defendant pleaded guilty he did not understand his rights. After hearing, the application for reopening the case and for a new trial was refused. Of this action no complaint is now made.

Beyond the entry of the fact that the defendant appeared, pleaded guilty, and paid the penalty, the record discloses no conviction of the defendant. It is difficult to perceive how this constitutes an adjudication by which he is aggrieved. As the prosecutor paid the penalty without being convicted— paid it voluntarily, so far as appears—the Incident seems to be closed, and the record manifests rather a historical memorandum of the proceedings, than an adjudication of the prosecutor's guilt.

Assuming, however, that it may be treated as the record of a conviction, its attack by certiorari is met by the insistment that an appeal to the court of common pleas is made by statute the exclusive primary method of review. East Orange is incorporated under "An act for the incorporation of cities, and providing for their officers, government and powers," approved March 24, 1899 (P. L. 1899, p. 283). The jurisdiction, powers, and duties of the recorder are prescribed by section 32 of this act. Section 34 declares: "Every conviction for violating a city ordinance had before the recorder, either with or without a jury trial, may be reviewed by appeal to the court of common pleas of the county in the same manner and upon the same terms as appeals are or may be taken from courts for the trial of small causes, and in case the judgment appealed from shall be imprisonment, the said recorder or any judge of the court of common pleas may admit to bail the party appealing during the pendency of his appeal; but no judgment for the violation of any ordinance shall be reversed for any imperfection, omission, defect in or lack of form, nor for any error except such as shall or may have prejudiced the defendant in maintaining his defence upon the merits."

The inherent jurisdiction of the Supreme Court to review by certiorari, or equivalent proceeding, the judgments of inferior tribunals, is placed by the Constitution beyond abridgment by the Legislature. The acts constituting the small-cause court, in providing for appeals to the common pleas in certain cases, have at the same time expressly prohibited a direct review of the judgment of the Justice by the Supreme Court or Circuit Court, where the Justice has jurisdiction, and where an appeal is given to the common pleas. Gen. St. p. 1882, § 96 (P. L. 1903, p. 279, § 93). This prohibition of a direct review by certiorari has been sustained on the ground that the Supreme Court ultimately supervises the action of the appellate tribunal, so that in effect the legislative provision amounts to a mere regulation of the remedy. Traphagen v. Township of West Hoboken, 39 N. J. Law, 232, 236; Flanagan v. Plainfield, 44 N. J. Law, 118, 122. It requires clear language, however, to evince a legislative intent to preclude a citizen from what would otherwise be his undoubted right to a direct review by certiorari, and to substitute for it a primary appeal to the common pleas, followed by a review of the proceedings in that court by certiorari from the Supreme Court. Ritter v. Kunkle, 39 N. J. Law, 259, 261. See, also, State v. Falkinburge, 15 N. J. Law, 320, 322.

The act of 1899, unlike the justice's court act, contains no express prohibition of a direct review by certiorari. It simply renders the proceedings in the recorder's court conformable in general to those in the small-cause court, and provides a review "by appeal to the court of common pleas in the same manner and upon the same terms as appeals are taken from courts for the trial of small causes." Under somewhat similar language found in an amended charter of the city of Plainfield, and in one of its supplements (P. L. 1872, p. 1142, § 21, etc.; P. L. 1873, p. 483, § 8), it was said in Flanagan v. Plainfield, 44 N. J. Law, 118, at page 121, that the remedy by appeal was exclusive. See. also, Watson v. Plainfield, 60 N. J. Law, 260, 37 Atl. 615. But the point seems not necessarily to have been involved in either of those cases. Nor does it seem to be properly raised in the present case. Section 34 of the act of 1899 gives an appeal only in the same manner and upon the same terms as appeals are taken from the small-cause court. But appeals do not lie from the judgment of the small-cause court if given by confession. Gen. St. p. 1891, § 138 (P. L. 1903, p. 276, § 80). Now, if the record before us discloses a judgment at all, it is a judgment by confession, as held in Watson v. Plainfield, where the opinion (60 N. J. Law, at page 263, 37 Atl., at page 616) states, "If it is entered on an acknowledgment of a violation of an ordinance, it is a judgment by confession, and may be reviewable by certiorari."

Turning now to the reasons assigned by the prosecutor for reversal of the so-called conviction, the first is that there was no legal trial; and the third, that there was no legal evidence upon which to base prosecutor's conviction. But a plea of guilty obviates the necessity of a trial, and constitutes legal evidence upon which to base conviction. According to the record, the defendant thus pleaded when he appeared at the time and place specified in the summons. The case is not at all parallel to Watson v. Plainfield, 60 N. J. Law, 260, 37 Atl. 615, where, after a plea of not guilty was entered, and the cause postponed until a later day for trial, the defendant before the trial day admitted his guilt to the city judge, who afterwards made that admission the basis of entering judgment of conviction. In the present case, also, the complaint sufficiently specifies the violation of the ordinance, and so the case is not parallel to Bray v. Damato (N. J. Sup.) 57 Atl. 394.

Another reason assigned for reversal is that the judgment is entered in figures, and not in words at length. But this is a mere defect of form, not prejudicial to the defendant and so furnishes no ground for reversal. P. L. 1899, p. 297, § 34.

The remaining reasons set up that the code of ordinances of East Orange, and section 166 thereof, are invalid because never legally adopted by the city council, because not advertised after introduction in two newspapers for one week prior to final action thereon, because passed without notice of advertisement of the time or place when the same would be considered or passed, because passed at a special meeting without previous notice, and because it does not appear on the face of the proceedings that the code of ordinances was advertised as required by law. But are these not all matters of fact, that are conclusively admitted by the plea of guilty? This question has not been debated before us, and we do not propose to base our judgment upon it. It would seem, however, that, although a local ordinance passed under due legislative authority becomes the law of the place, yet that the existence of such a local law and its terms, like the existence of a local custom, are matters of fact, to be pleaded and proved as such, and to be admitted by a plea of guilty. The sworn complaint in the...