O'Neill v. State Highway Dept.

Decision Date26 November 1962
Docket NumberNo. A--690,A--690
Citation77 N.J.Super. 262,186 A.2d 127
PartiesCatherine O'NEILL, Individually and as Executrix and Trustee under the Will of John I. O'Neill, deceased, Plaintiff-Appellant, v. STATE HIGHWAY DEPARTMENT of New Jersey and Dwight R. G. Palmer, Commissioner of the State Highway Department of New Jersey, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

John C. Heavey, Jr., Newark, for appellant (Carpenter, Bennett & Morrissey, Newark, attorneys, John C. Heavey, Jr., Newark, on the brief).

Robert B. Kroner, Deputy Atty. Gen., for respondents (Arthur J. Sills, Atty. Gen., attorney, Marilyn Loftus, Law Asst., on the brief).


The opinion of the court was delivered by


This is an appeal from an interlocutory order of the Superior Court, Law Division, striking plaintiff's demand for jury trial in an action in lieu of prerogative writs, R.R. 4:88.

The complaint, in alternative counts, sought to eject defendants, the State Highway Department of New Jersey and its Commissioner, from her lands or to compel condemnation proceedings for the taking of this property. The trial court granted a motion to dismiss the first count on the ground of sovereign immunity.

The second count alleges that plaintiff is entitled to possession of the land described in the complaint; that defendants negotiated with plaintiff for a right of way over her property; that these negotiations were never concluded; that, without notice to the plaintiff, defendants entered upon these premises, constructing a highway, bridge, and other structures; and that defendants have not instituted condemnation proceedings nor paid to plaintiff or into court money representing the fair value of the property as required by applicable statutes. The complaint demands defendants be ordered to institute condemnation proceedings and includes a timely demand for jury trial on all issues.

In their answer, defendants admit that they entered upon part of the land, but deny plaintiff's right to possession of the property in question. They allege that the premises are tidelands, title to which is in the name of the Department of Conservation and Economic Development. Further, they claim that part of the land was conveyed to defendants by plaintiff or her predecessor in title and that part has been in defendants' possession in excess of 20 years, thus barring by estoppel the present action. After filing this answer, defendants moved to strike the demand for jury trial. The motion was granted, and plaintiff was given leave to take this appeal, R.R. 2:2--3(a).

The sole question presented is whether plaintiff is entitled to a trial by jury in a proceeding in lieu of the prerogative writ of Mandamus when factual issues are involved. The pertinent rule is R.R. 4:88--2, which provides that:

'Review, hearing and relief heretofore available by prerogative writs * * * shall be afforded by a civil action at law in the Law Division of the Superior Court. Such action shall be tried before a single judge without a jury, Except in any case where a jury trial would have been heretofore available * * *.' (Emphasis added.)

Consequently, the solution to our problem lies in an understanding of the circumstances under which a jury trial would have been available in Mandamus under the practice prior to the adoption of our rules of civil procedure in 1948.

At common law a writ of Mandamus was a high prerogative writ directed to any person, corporation or inferior court within the jurisdiction, requiring them to perform some ministerial act pertaining to their office and duty. McKenna v. New Jersey Highway Authority, 19 N.J. 270, 275, 116 A.2d 29 (1955); Blackstone's Commentaries (Chase, 4th ed. 1919), pp. 668--70. The writ was generally issued in the alternative form, giving the party to whom the writ was directed an opportunity to show cause why an unchallengable peremptory writ should not be issued. Cause was shown by filing an answering pleading entitled 'the return'--the object being to give the opposing party a full hearing on the merits. State ex rel. Kelly v. Mayor, etc., of City of Paterson, 35 N.J.L. 196, 199 (Sup.Ct.1871); Wood, Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari and Quo Warranto (1880), pp. 43 et seq.

If the return was insufficient on its face, it was quashed and a peremptory writ was awarded; if sufficient, the peremptory writ was denied. Kenny v. Hudspeth, 59 N.J.L. 504, 527--528, 37 A. 67 (E. & A.1896). The return was taken as conclusive; there was no trial of the issues. Layton v. State, 28 N.J.L. 575, 577 (E. & A.1860); 35 Am.Jur., Mandamus, § 373, p. 112.

To test the facts of a return, a second action was brought to recover damages for making a false return. Layton v. State, supra, 28 N.J.L., at p. 577. An action for a false writ was one of the numerous common law actions on the case for damages. Raker v. Bucher, 100 Cal. 214, 219, 34 P. 654, 849 (Sup.Ct.1893). In an action on the case, as in other civil actions, disputed questions of fact have always been for the jury's determination. 14 C.J.S. Case, Action On § 11, p. 14. If relator 'obtained a final judgment that the (writ) was false,' he simultaneously 'vindicated his right to a peremptory writ' of Mandamus. Kenny v. Hudspeth, supra, 59 N.J.L., at p. 528, 37 A., at p. 67.

To simplify this cumbersome procedure requiring two separate actions, England by statute consolidated the proceedings into a single action, 9 Anne, c. 20, § 2 (1710). Originally applicable only to actions involving municipal offices, the statute was amended by 1 Wm. IV, c. 21, § 3 (1831), which extended this unification of action to all other forms of Mandamus. Shortt on Informations, Mandamus and Prohibition (1888), §§ 413, 414, pp. 460--1.

Until 1794, New Jersey followed the common law procedure, as modified by 9 Anne, c. 20, § 2. 'On December 2, 1794, a statute was passed in New Jersey extending to All cases the procedure described in 9 Anne, c. 20 (Gen.St. p. 2000).' Kenny v. Hudspeth, supra, 59 N.J.L., at p. 529, 37 A., at p. 67. (Emphasis added.) This statute applied to 'any writ of Mandamus' and states that, after the return of the writ and at the end of the pleadings,

'such further proceedings, and in such manner, shall be had therein, for the determination thereof, As might have been had, if the person or persons, suing such writ, had brought his or their action on the case for a false return; and if any issue shall be joined on such proceedings, the person or persons suing such writ, Shall and may try the same in such place, as an issue joined in such action on the case should or might have been tried; and in case a Verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication, or other pleading, he or they shall recover his or their damages and costs, In such manner as he or they might have done in such action on the case as aforesaid; * * *.' Laws of the State of New Jersey; Revised and Published under the Authority of the Legislature. Trenton: Printed, for the State, by Joseph Justice, pp. 160--1 (1821). (Emphasis added.)

The result was the consolidation of the separate action on the case with the return of the alternative writ in Mandamus and, consequently, a jury trial on disputed questions of fact in a Mandamus proceeding.

The statute has, from time to time, been amended, e.g., L.1870, c. 339; L.1903, c. 195, § 2. It was revised and consolidated in the 1937 Revision of the Laws of New Jersey, R.S. 2:83--1 et seq. R.S. 2:83--7 retained the essence of the 1794 statute and provided that--after the return and completion of the pleadings--the proceeding should continue 'as if the relator had brought an action in the nature of an action on the case for a false return.'

As we have seen, R.R. 4:88--2 fixes the relevant date for the availability of a jury trial in a Mandamus action at the adoption of the rules of civil procedure in 1948. Therefore, it is of no consequence that this statutory grant of trial by jury in a Mandamus proceeding was not enacted in the 1951 Revision of Title 2, L.1951, c. 344. As the late Chief Justice Vanderbilt commented in Bank of Commerce v. Markakos, 22 N.J. 428, 431, 126 A.2d 346, 347 (1956), the purpose of the repeal of the original Title 2 was merely to 'strip the statute book of all procedural enactments inconsistent with the rules of procedure theretofore promulgated by the Supreme Court * * *.'

Our constitution provides that in proceedings in lieu of prerogative writs 'review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by the rules of the Supreme Court, as of right.' N.J.Const., Art. VI, § 5, par. 4. In affirming its rule-making power under this constitutional provision, the Supreme Court has noted that:

'The regulation of the remedies so provided is the exclusive province of the Supreme Court; the regulative power is not made subject to legislative action. * * * No distinction is made between the substantive jurisdiction to afford the relief theretofore available through the prerogative writs and the mode and manner of the exercise of the power. The whole is within the exclusive jurisdiction of the Supreme Court. * * * Viewing the specific constitutional grant in its historical and contextual setting, we have no doubt that the purpose was to commit this jurisdiction in its entirety to the newly-organized Supreme Court, free of legislative supervision.' Fischer v. Township of Bedminster, 5 N.J. 534, 539, 541, 542, 76 A.2d 673, 675, 676 (1950).

See State v. Rivers, 16 N.J.Super. 159, 162, 84 A.2d 16 (App.Div.1951). Therefore, the Supreme Court has the power to continue at its own discretion the former right of trial by jury in a proceeding in lieu of the prerogative writ...

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    ...Grove Tp., 36 N.J. 51, 61, 174 A.2d 890 (1961); Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957); O'Neill v. State Highway Dept., 77 N.J.Super. 262, 270, 186 A.2d 127 (App.Div.1962), reversed on other grounds 40 N.J. 326, 191 A.2d 481 (1963); Mangieri v. Spring Tool Co., 68 N.J.Super. 211......
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