State ex rel. Wm. Eckelmann, Inc. v. Jones, M--74

• Decision Date: 24 April 1950
• Docket Number: No. M--74,M--74
• Citation: 72 A.2d 872,4 N.J. 374
• Parties: STATE ex rel. WM. ECKELMANN, Inc. v. JONES.
• Court: New Jersey Supreme Court

Page 374

4 N.J. 374

72 A.2d 872

STATE ex rel. WM. ECKELMANN, Inc. v. JONES.

No. M--74.

Supreme Court of New Jersey.

April 24, 1950.

James A. Major, Hackensack, for the motion (Joseph H. Gaudielle, Hackensack, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

The defendant petitioned for a reargument of the appeal on two grounds that are of such general interest that we deem it advisable to set forth our views thereon.

The first ground is that this Court, after requesting counsel to argue the point first raised in the respondent's brief, declined to rule on the constitutionality of R.S. 40:47--4, N.J.S.A., because the question had not been raised below.

The appeal here was from a judgment of the Law Division of the Superior Court, dismissing an information in the nature of a writ of Quo warranto. The appeal was taken to the Appellate Division and certified by this Court on its own motion. After argument we reversed the judgment below and entered judgment for the plaintiff. As Point V of his brief the defendant alleged that R.S. 40:47--4, N.J.S.A., was unconstitutional and counsel were requested by the court to give attention to this point in their argument. In our opinion this constitutional question was disposed of as follows (4 N.J. 207, 72 A.2d 322, 325):

'The defendant's next contention to escape the operation of this statute, is that it is unconstitutional as by its terms it is subject to another statute that permits a veteran to deduct five years from his age. Whatever the merits of this attack on the constitutionality of R.S. 40:47--4 N.J.S.A., may be, they need not be resolved here. There is nothing in the record even to hint that this argument was raised at either the pretrial conference or the trial and, this being so, the defendant should not be permitted to raise it on appeal.'

The defendant now urges that this is error, citing Bradner, New Jersey Law Practice, 676, § 731, wherein it is said that the appellate court will not consider 'Points of law not considered by lower court unless involving matters of public policy or constitutional questions.' The cases cited by Bradner, however, to support this statement demonstrate the correctness of our ruling and the weakness of the defendant's contention. In McMichael v. Horay, 90 N.J.L. 142, 100 A. 205 (E. & A. 1917) the court affirmed the judgment below on grounds of public policy not considered below. Commenting on its power so to do the court said, 90 N.J.L. at page 145, 100 A. at page 206:

'This court held in State v. Heyer (89 N.J.L. 187), 98 A. 413 (Ann.Cas. 1918D, 284), that a question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. But this must be read in the light of our holding in State v. Shupe, (88 N.J.L. 610), 97 A. 271, where it was decided that a court of last resort need not hear a party on a question which could have been, but was not, raised in an intermediate court of appeal, except where the question goes to the jurisdiction of the subject-matter or where a question of public policy is involved. The true doctrine is that a Court of Appeals need not, not that it cannot, decide a question arising on a record before it, which was not raised in a court below, whether that court be an intermediate court of appeals or a court of first instance.'

Five years later the court of last resort refused to consider a constitutional question not raised below and affirmed the judgment under review, Mahnken v. Meltz, 97 N.J.L. 159, 116 A. 794 (E. & A. 1922). With respect to the constitutional question before it, the court stated, 97 N.J.L. page 165, 116 A. page 795: 'The next point is that the act mentioned is unconstitutional in that its title is defective. Defendants-respondents assert in their brief that this point was not raised or argued in the court below and therefore cannot now be urged. In the reply brief it is stated for appellant that the constitutional question was fully raised by elaborating objections to the affidavit and asserting the invalidity of the entire proceedings, and that these questions were raised on the removal of the case to this court. An examination of the nine reasons filed in the Supreme Court fails to disclose or even suggest that the act under which the proceedings were brought is unconstitutional. Where the Supreme Court sits as a reviewing tribunal, as it did in this case, questions not argued there will ordinarily not be noticed here, but may be if they involve jurisdiction or public policy. See State v. Belkota, 95 N.J.L. 416, 113 A. 142; State v. Snell, 96 N.J.L. 299, 114 A. 416. But, as above remarked, the jurisdictional question of defective title of the act under which these proceedings were instituted was not even raised in the court of first instance, and, consequently could not have been argued in the court of intermediate appeal, as it was not and it will not be noticed here.'

The third case cited by Bradner is Wallach v. Stein, 103 N.J.L. 470, 136 A. 209 (E. & A. 1927), where the court considered a question as to the constitutionality of a section of the Uniform Stock Transfer Act, R.S. 14:8--23 et seq., N.J.S.A., when that question had not been raised below, but, finding the provision constitutional, affirmed the judgment under review. The court here said, 103 N.J.L. page 471, 136 A. page 209: 'We might well decline, under the settled practice here, to consider the question. In view, however, of the importance of the act and the fact that the Supreme Court has itself twice adverted to the possible unconstitutionality of this section, see opinion below and Mulock v. Ulizio, (102 N.J.L. 251), 131 A. 622, it may well be that this is one of those exceptional cases in which public policy requires that the question should be put at rest by authoritative declaration of this court, involving as it does the validity in part of a statute of wide application and of general interest. McMichael v. Horay, 90 N.J.L. 142, 100 A. 205; Franklin v. City of Millville, 98 N.J.L. 262, 119 A. 29. We therefore proceed to examine it.'

In the last case cited by Bradner, State v. Guida, 119 N.J.L. 464, 196 A. 711, 713 (.e. & A. 1938), the court considered the constitutionality of a statute under which the defendant had been convicted, and upheld it, even though the question had not been raised below. Mr. Justice Heher there said: 'Although not raised in the quarter sessions we conceive that the constitutional questions raised here and in the Supreme Court should be determined. They are fundamental. If the statute contravenes the Constitution of New Jersey the judgment under review is a nullity. If that is so the indictment does not charge a crime. Public policy is ill-served by convictions as for crime under a void statutory provision.'

These cases, which are in accord with the general rule in other states, 3 Am.Jur., Appeal and Error, §§ 287, 293 and 4 C.J.S., Appeal and Error §§ 233a, 234, clearly indicate that the true rule is that the appellate court May, but need not consider constitutional questions not raised below unless they involve jurisdiction. In this case there are no special circumstances existing which would prompt this Court to exercise its discretion and consider on this appeal a constitutional question not previously raised, and the rule is correctly stated in the opinion, for it states that 'Whatever the merits of this attack on the constitutionality of R.S. 40:47--4 N.J.S.A., may be, they Need not be resolved here.'

In addition to these pertinent authorities under the former practice we would direct particular attention to Rule 1:3--2(c): '* * * If the questions involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception.' This rule despite its imperative nature was not complied with in this case.

The second argument made in support of the motion for reargument was not mentioned in the briefs of either party nor was it adverted to at the oral argument. It is now tendered to us for the first time. It amounts to a contention that this appeal is not, or at least should not be, an appeal and that an opportunity to raise constitutional questions was never previously available to the defendant. This action was commenced on June 10, 1948 by filing an information in the nature of a writ of Quo warranto. The defendant's plea in answer thereto was filed on August 6, 1948. On September 15, 1948, by virtue of Article XI, Section IV, Paragraph 8 of the Constitution of 1947, N.J.S.A., the proceeding was automatically transferred to the...