State v. Court Of Common Pleas Of Mercer County

• Decision Date: 04 October 1948
• Docket Number: No. A-1.,A-1.
• Parties: STATE v. COURT OF COMMON PLEAS OF MERCER COUNTY et al.
• Court: New Jersey Supreme Court

61 A.2d 503

STATE

v.COURT OF COMMON PLEAS OF MERCER COUNTY et al.

No. A-1.

Supreme Court of New Jersey.

Oct. 4, 1948.

Appeal from late Supreme Court.

Certiorari proceeding by the State of New Jersey, Walter D. Van Riper, Attorney General, against the Court of Common Pleas of County of Mercer and Joseph Griffin to review an order of the Court of Common Pleas directing the release of Joseph Griffin under writ of habeas corpus. From an adverse judgment 136 N.J.L. 380, 56 A.2d 562, Joseph Griffin appeals.

Affirmed.

John J. Connell, of Trenton (John A. Musick, of Trenton, on the brief), for appellant.

Walter D. Van Riper, Atty. Gen. (Eugene T. Urbaniak, Deputy Atty. Gen., on the brief), for respondent.

HEHER, Justice.

An order made by the Judge of the former Mercer Court of Common Pleas discharging appellant from imprisonment in the State Prison under sentence upon a conviction of crime was vacated by the late Supreme Court on certiorari; and the prisoner appeals. The case is here pursuant to Article XI, section IV, paragraph 8 of the Constitution of 1947, N.J.S.A., and chapter 367 of the Pamphlet Laws of 1948, N.J.S.A. 2:16-70 to 86.

The initial question for decision is whether the order of discharge was reviewable on certiorari at the instance of the State. Did the Supreme Court have jurisdiction of the judgment on habeas corpus? We think it did.

Habeas corpus ad subjiciendum is a civil and not a criminal proceeding. Cross v. Burke, 146 U.S. 82, 13 S.Ct. 22, 36 L.Ed. 896. It is a high prerogative common-law and not a statutory writ whose origin is lost in antiquity. State Bank of Morris v. Dickinson, 16 N.J.L. 354; Vannatta v. Morris Canal & Banking Co., 17 N.J.L. 159; In re Thompson, 85 N.J.Eq. 221, 232, et seq., 96 A. 102. The statute was not designed to bestow an immunity from arbitrary imprisonment, for that is secured by Magna Charta, if indeed, it were not even more ancient, but to provide summary relief against impairment of the fundamental right. R.S. 2:82-1, et seq., N.J.S.A.; Church on Habeas Corpus (2d Ed.) section 25a. It is in aid of the jurisdiction to enforce the immemorial right of personal liberty; but the summary remedy thus provided is nevertheless a special jurisdiction whose exercise is on well-settled principles subject to review on certiorari.

Proceedings summary in their character are ordinarily reviewable by certiorari. Vanpelt's, Ex'rs v. Veghte, 14 N.J.L. 207; Rutherford v. Fen, 21 N.J.L. 700; State v. Wood, 23 N.J.L. 560; Taylor Provision Co. v. Adams Express Co., 72 N.J.L. 220, 65 A. 508; Jaudel v. Schoelzke, 95 N.J.L. 171, 112 A. 328; Defiance Fruit Co. v. Fox, 76 N.J.L. 482, 486, 70 A. 460; Eder v. Hudson County Circuit Court, 104 N.J.L. 260, 140 A. 883. We quote Mr. Justice Van Syckel: ‘A writ of certiorari is in the nature of a writ of error, and is resorted to in those cases where a writ of error does not lie. When courts act in a summary way, or in a new course different from the common law, a certiorari, and not a writ of error, is the proper remedy.’ State, Elder, Pros. v. District Medical Society of Hudson 35 N.J.L. 200. Chief Justice Hornblower said: ‘It is sufficient to say that a certiorari lies in all cases, unless taken away by the express words of a statute. Rex v. Mosely, 2 Burr. 1040: and not only, where there is another remedy, but even where an appeal is given upon the merits. Rex v. Mosely, 2 Burr. 1040, Kingsland v. Gould, 6 N.J.L. 161, 1 Halst. 161; Middlesex election case (State v. Justices, etc., of Middlesex), 1 N.J.L. 244; Coxe 244; Ludlow v. Ludlow's Ex'rs, 4 N.J.L. 387, 1 Southard 387, 389.’ New Jersey Railroad & Transp. Co. v. Suydam, 17 N.J.L. 25, 40. Certiorari is ‘in the nature of a writ of error, to examine the legality of the commitment.’ Ex parte Watkins, 3 Pet. 193, 201, 7 L.Ed. 650.

Where the judge exercises a special summary statutory power, certiorari is an appropriate remedy, especially where there is no indication of a mode of review. Peltier v. Pennington, 14 N.J.L. 312; Westfall v. Dunning, 50 N.J.L. 459, 14 A. 486; Oetjen v. Hintemann, 91 N.J.L. 429, 106 A. 213. Here, the summary power to issue the writ is lodged in ‘the judge of a court of common pleas'. R.S. 2:82-14, N.J.S.A. And even if the court be a common-law court, yet, if it sit as a statutory tribunal under a special jurisdiction in a course of procedure not according to the common law, the rules applicable to summary proceedings apply. Defiance Fruit Co. v. Fox, supra; Knapp v. Kremer, 103 N.J.L. 227, 135 A. 771; State v. Rosenblum, 100 N.J.L. 240, 126 A. 852, affirmed 102 N.J.L. 125, 130 A. 614; Goodman Warehouse Corporation v. Mayor and Aldermen of Jersey City, 102 N.J.L. 294, 132 A. 503, affirmed Err. & App., 133 A. 919. This is so if the statute declare the newly created tribunal to be a court of record; it is not thereby ‘to be assimilated to common law courts of record.’ Peltier v. Pennington, supra.

The office of the common-law writ of certiorari is to bring before the superior court for inspection the record of the proceedings of the inferior tribunal, to determine whether the latter had jurisdiction and had proceeded according to law. Errors of law as well as jurisdictional excesses are remediable on certiorari. In Bacon's Abridgement, the writ is defined thus: ‘A certiorari is an original writ issuing out of chancery or the King's Bench, directed to the judges or officers of inferior courts, commanding them to return the records of a cause depending before them, to the end that the party may have the more sure and speedy justice, before him or such other justices as he shall assign to hear the cause.’

There are cases suggesting that when certiorari is given by statute, it lies to correct any legal mistakes; but where issued as at common law, the review is limited to the jurisdiction of the inferior tribunal. But this distinction would seem to be illfounded. In the case of Jackson v. People, 9 Mich. 111, 77 Am.Dec. 491, it was said, apropos of this: ‘We have examined with much care all the English authorities within reach, bearing upon this subject, and have found nothing whatever to give color to such a distinction. There are indeed cases where a certiorari lies to examine errors generally, and others where it lies only to inquire into the jurisdiction; but the distinction arises out of very different considerations.’ It is there demonstrated, by comparison and analysis of the English cases, that ‘the usual office of the commonlaw writ (of certiorari) is to inquire into something more than jurisdiction;’ and that its function is to review questions of law, but not questions of fact. Again drawing upon the English cases, it is said that ‘in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal.’

Such is the nature of the writ of certiorari in New Jersey. Here, the commonlaw certiorari from early times performed the office of a writ of error, to review questions of law as well as of jurisdiction. Vanpelt's Ex'rs v. Veghte, supra; Ayres v. Bartlet, 14 N.J.L. 330; Wood v. Fithian, 24 N.J.L. 838; State, Wilson, Pros. v. City of Hudson, 32 N.J.L. 365; Coles & Sons' Co. v. Blythe, 69 N.J.L. 666, 55 A. 240; Marcus v. Graver, 71 N.J.L. 95, 58 A. 564; Ryer v. Turkel, 75 N.J.L. 677, 70 A. 68; Sexton v. Newark District Telephone Co., 84 N.J.L. 85, 86 A. 451, affirmed 86 N.J.L. 701, 91 A. 1070. The inquiry is, did the inferior tribunal ‘mistake or misapply the law.’ Brown v. Ramsay, 29 N.J.L. 117. The power thus exercised through the prerogative writ of certiorari was comprised within ‘the appellate and extraordinary jurisdiction with which the Supreme Court, as the successor of the King's Bench, had been originally vested.’ Dufford v. Decue, 31 N.J.L. 302; Green v. Heritage, 64 N.J.L. 567, 46 A. 634; Smith v. Holshauer, 68 N.J.L. 137, 52 A. 308. Of course, where certiorari issued to review the proceedings of a ‘special statutory tribunal,’ the former Supreme Court was enjoined by the statute to determine disputed questions of fact as well as of law. R.S. 2:81-8, N.J.S.A.

An order discharging the prisoner on habeas corpus is a final judgment reviewable on certiorari, if not by appeal or writ of error. This doctrine is supported by the great weight of authority. The cases are reviewed by the Supreme Court of Wisconsin in Crow's Case (In re Crow), 60 Wis. 349, 19 N.W. 713, 718: ‘The judgment of discharge, not actually void for want of jurisdiction to issue the writ, is a final judgment, and cannot be impeached collaterally. It can only be reviewed on error or certiorari. Ex parte McGehan, 22 Ohio St. 442; Hurd, Hab. Corp. 563; Ex parte Milburn, supra, 9 Pet. 704 (9 L.Ed. 280); Commonwealth v. McBride, 2 Brewst., Pa., 545; Mathis v. Colbert, 24 Ga. 384. If it is the judgment of a court, a writ of error lies without any statutory provision; and if by a judge or court commissioner, a certiorari lies at common law. Com. v. Biddle, 6 Pa. Law J. 287. The attorney general may appeal or take the writ in case of discharge. Ex parte Lafonta, 2 Rob., La., 495; Weddington v. Sloan, 15 B. Mon. Ky., 147; State v. Potter, Dud.Law, S.C., 296; Hurd, Hab.Corp. 575. A judge at chambers has plenary power and jurisdiction in writs of habeas corpus. In re Blair, 4 Wis. (522), 531. A county judge, as court commissioner, has jurisdiction to inquire into the legality of the commitment, but when jurisdiction is shown in the court to issue it, he cannot discharge for mere errors or irregularities, but must remand the prisoner. This case was heard on certiorari. * * * Certiorari will lie to a judge at chambers on habeas corpus proceedings to...