Minochian v. City of Paterson

• Decision Date: 30 November 1928
• Docket Number: No. 233.,233.
• Citation: 143 A. 825
• Parties: MINOCHIAN et al. v. CITY OF PATERSON et al.
• Court: New Jersey Supreme Court

143 A. 825

MINOCHIAN et al.

v. CITY OF PATERSONet al.

No. 233.

Supreme Court of New Jersey.

Nov. 30, 1928.

Richard Minochian and others were convicted of gaming and keeping of gaming house, and they bring certiorari. Writs of certiorari dismissed.

Argued January term, 1928, before TRBNCHARD, KALISCH, and KATZENBACH, JJ.

Edward F. Merrey, of Paterson, for prosecutors.

Benjamin J. Spitz, of Paterson, for defendants.

KALISCH, J. The prosecutors were convicted in the recorder's court of the city of Paterson upon the following complaints:

"Before me, John F. Evans, recorder of the city of Paterson, personally appeared Sergt. Gus VanDerBok, police department of No. Paterson, New Jersey, who being duly sworn according to law deposeth and saith that on the 19th day of April, 1926, Richard Minochian, George Johnson, John Aetinia, Billy Effsa, Peter Georger, Louis Agan, Paul Bazir, Jake Vanorin, Thomas Gassis, John Ali, Edward Scheriniar, in the city of Paterson, county of Passaic aforesaid, did violate a provision of the ordinance of the mayor and aldermen of the city of Paterson, entitled 'An ordinance to prohibit gaming and the keeping of gaming houses in the city of Paterson, and to provide for the punishment thereof,' passed August 18, 1899, and approved the Same day, and the amendments thereof, in that said defendants were present in the house, room or apartment that John Caracaras, of the city of Paterson, did keep or maintain at, to wit, 40 Van Houten street, Paterson, New Jersey, a room within said city wherein betting, chances' or gaming upon the happening of an event, to wit, dice and card gaming was carried on or allowed for money or valuables, in violation of section one of the said ordinance as above set forth.

"[Signed] Sergt. G. VanDerBok,

Complainant.

"Sworn at Paterson, this 20th day of April, 1926.

"John F. Grossi, Clerk to Recorder."

The complaint is very inartiflcially drawn, but that circumstance of itself does not render the complaint invalid, so long as it apprises the accused of the nature of the charge brought against him.

Section 1 of the amended ordinance reads as follows: "That no person or persons shall keep or maintain or be present in any house, room or apartment, within this city, wherein betting, pool selling or chances or gaming of any kind, upon the event of any horse race or races between horses, or upon the happening of any event carried on or allowed, nor shall any person or persons keep any house, room or apartment or be present therein, wherein gaming for money or valuables' is allowed or carried on in this city; provided, that where a person is innocently present without any interest in the gaming, and this is proved to the satisfaction of the recorder, he shall be acquitted."

The recorder having found the prosecutors' guilty, inter alia, adjudges: "And it not appearing to the court from the testimony, that the prosecutors were not innocently present without any interest in the gaming, were sentenced to pay a fine of five dollars each." The record of the recorder's court further shows that the fines were paid under protest.

The prosecutors, under the statute of 1908, page 442 (2 Comp. St. 1910, p. 1910, § 145b), applied to the president judge of the court of common pleas to have the legality of their several convictions reviewed, and that tribunal ordered that the complaint, warrant, proceedings' of record of conviction had in the recorder's court to be brought before him so that the legality of the proceedings and conviction there had may be reviewed and determined by him, and, according to the record of the court of common pleas, it appears that after the hearing, and a postponement of the decision of the court, the following minute was entered upon the record: "This case having been continued until this time, the judgment of the recorder's court of the city of Paterson is upheld."

The prosecutors then sued out of the Supreme Court a writ; of certiorari, directed to the court of common pleas at Passage county, and in obedience to the writ the common pleas court has sent to this court, under its hand and seal, all the proceedings and the order made by it, in the cause, and from which it appears, as above stated, that the court's order was that "the judgment of the recorder's court of the city of Paterson is upheld."

We have reached the conclusion that the writs should be dismissed, for reasons we will now proceed to state.

The Statute of 1908, supra, which is invoked by the prosecutors as warranting the removal of the record of their conviction in the recorder's court to the court of common pleas, is entitled "A supplement to an act entitled, 'An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases.'" Revision of 1898, approved June 14, 1898, P. L. p. 866 (2 Comp. St. 1910, p. 1820 et seq.). The statute in substance provides that, upon application made to a justice of the Supreme Court holding the circuit in each of the counties of this state, or the president judge of the court of common pleas for said county, for any person who has been convicted in any summary conviction had before any police judge, justice of the peace, mayor, recorder or other magistrate in any city, town, township, or borough for the violation of any ordinance at any such city, town, township, or borough, who desires to have the legality of the 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, and, if such proceedings and conviction shall thereupon be found to be illegal, forthwith set aside the same and order the discharge of the person so convicted from custody.

The language of the statute is too clear and explicit to need any argument to demonstrate that the employment of the words in the statute, "to order the discharge of the person so convicted from custody" means that the benefit of the statute was only to be extended to a person who was convicted in a summary proceeding, and who was in actual custody. The fact in the instant case is that none of the prosecutors was in custody, and therefore none was entitled to a review of his conviction, by virtue of this statute. Each of the prosecutors paid his fine, and, though he paid it under protest, that circumstance did not have the effect of being tantamount to a situation of a person being in actual custody.

Before proceeding any further to discuss the intent and scope of the statute, we find it convenient here to first consider the problem which obtrudes itself upon the surface of this legislative act, and that is as to whether or not the procedural remedy provided for by the statute, in substance, invests a judge of the common pleas with the jurisdictional power to grant a writ of certiorari in the cases designated by the statute. We are mindful that the jurisdictional question has not been raised or argued in the brief of counsel of prosecutors; nevertheless, since the facts themselves present the question and since counsel are not precluded from raising it in the event of an appeal being taken, even though the jurisdictional question was not raised and passed upon by this court, we deem it of sufficient importance to express our views in regard to the nature and scope of the statute and of the remedy provided.

In Green v. Heritage, 64 N. J. Law, 567, 46 A. 634, which case dealt with a provision of the District Court Act of 1898, P. L. 1918, p. 630, § 206 (2 Comp. St. 1910, p. 2014), providing for an appeal to the circuit court, in these words, "If either party in any such action or proceeding shall be dissatisfied with the determination or direction of said court in point of law, or upon the admission or rejection of evidence, such parties may appeal from the same to the circuit court of the county wherein said district court is held," Van Syckel, J., speaking for the Court of Errors and Appeals, at page 568 of 64 N. J. Law (46 A. 634), says:

"There can be no question that, although the proceedings by which the judgment of the district court was removed into the circuit court is styled in the District Court Act of 1898 'appeal,' the power conferred is identical with that which is exercised by the Supreme Court through its prerogative writ of certiorari. The power granted is the certiorari power, and must be dealt with as such. McCullough v. Essex Circuit Court [59 N. J. Law] 30 Vroom, 103 . The question now presented was most ably and elaborately discussed by the late Chief Justice Beasley as long ago as 1865, in Dufford v. Decue [31 N. J. Law] 2 Vroom, 302, and the conclusion reached has never been challenged, and I am confident cannot be successfully controverted. After showing that, prior to the adoption of the Constitution of 1844, our Supreme Court was empowered to have cognizance of pleas, civil, criminal and mixed, as fully and amply to all intents and purposes whatsoever as the Courts of Queen's Bench, Common Pleas and Exchequer within Her Majesty's Kingdom of England, he says 'that at the time of the formation of the Constitution of 1844 the ordinary common-law original jurisdiction of the Supreme Court was shared by the respective county circuit courts and to a definite extent by the courts of common pleas; but the appellate and extraordinary jurisdiction with which the Supreme Court, as the successor of the King's Bench, had been originally vested, remained centered still exclusively in that tribunal, with the single anomaly that the act constituting the circuit court had conferred upon them the power to review suits originating in the justices' courts by the instrumentality of the writ of certiorari

"After declaring that no change in this respect was effected by the Constitution of 1844, he further says 'that it was...