State v. Hudspeth

Decision Date01 March 1897
Citation69 N.J.L. 504,37 A. 67
PartiesSTATE ex rel. KENNY v. HUDSPETH.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to supreme court.

Mandamus by the state, on the relation of John Kenny, against Robert S. Hudspeth. Judgment for defendant, and relator brings error. Affirmed.

Chauncey H. Beasley and Allan McDermott, for plaintiff in error.

Foster M. Voorhees and Frank Bergen, for defendant in error.

DIXON, J. The mandamus contained in this record is a peremptory writ, in form, but it was treated in the supreme court and on argument here as an alternative writ, and therefore will be now so regarded. The defendant filed a demurrer to it, and, the relator having joined in the demurrer, the supreme court gave final judgment for the defendant.

The first question to be considered is whether, upon such a judgment, error will lie. At the common law a peremptory writ of mandamus was always awarded or denied on the return to the alternative writ. If the return was, on its face, insufficient, it was quashed, and a peremptory writ was awarded. If the return was, on its face, sufficient, a peremptory writ was denied, unless the relator, by a separate action against the defendant to recover damages for making a false return, obtained a final judgment that the return was false, and so vindicated his right to a peremptory writ. On an award of the writ in such proceedings error would not lie. Rex v. Dean and Chapter of Dublin, 1 Strange, 530; s. e?on error, 1 Brown, Pari. Cas. 73. The reasons for this rule, which are given only in the king's bench report, were partly technical and partly substantial,— technical, in that the proceedings contained no formal judgment ("ideo consideratum est"); substantial, in that the right was not there adjudicated, but either was confessed by the defendant in his return, or had been established in the action for a false return. The same rule holds in New Jersey, where the common-law procedure is followed. Lay ton v. State, 28 N. J. Law, 575; American Transp. & Nav. Co. v. New York, S. & W. R. Co. (N. J. Err. & App.) 35 Atl. 1118. So, also, did it in New York. People v. Brooklyn, 13 Wend. 130. But the statute of 9 Anne, c. 20, did away with the reasons for this rule in the cases which it covered, by providing that the relator might plead to or traverse the material facts contained in the return, and that the person making the return should reply, take issue, or demur, and thereupon such further proceedings should be had as if the relator had brought his action for a false return, and the relator might have judgment for damages and costs, or the defendant might have judgment for costs. Under this statute there was a real determination of the rights of parties, and a formal judgment for the successful litigant; and accordingly Blackstone says that in cases within the statute the proceedings are in the nature of an action, and a writ of error may be had thereupon. 1 Bl. Comm. 265. To the same purport is the editor's headnote in 1 Brown, Pari. Cas. 73. So, also, Littledale, J., in 3 Barn. & Adol. 281. On December 2, 1794, a statute was passed in New Jersey extending to all cases the procedure prescribed in 9 Anne, c. 20 (Gen. St p. 2000). A like statute was also passed in New York. Under these laws a somewhat different practice obtained in this country from that pursued in England. There the words of the act were very closely adhered to, and as they do not in terms authorize a demurrer to the return or to the alternative writ, the practice was to challenge their sufficiency in law, not by a formal demurrer, but on a concilium, which was in the nature of a demurrer. Rex v. Pier Co., 3 Barn. & Aid. 220; Rex v. Mayor, etc., of London, 3 Barn. & Adol. 255, 279; Rex v. Oundle, 1 Adol. & E. 283; Reg. "v. Churchwardens, etc., of St. Saviour, 7 Adol. & E. 925; Reg. v. Ledgard, 1 Q. B. 616. Whether the determination of the court on such an argument was reviewable by writ of error seems doubtful, the negative apparently being assumed in Rex v. Pier Co., 3 Barn. & Ald. 220, and in Rex v. Oundle, 1 Adol. & E. 283, and the affirmative in Reg. v. Churchwardens, etc., of St Saviour, 7 Adol. & E 936, and in Reg. v. Kendall, 1 Q. B. 366. Afterwards the statute 6 & 7 Vict c. 67, authorized a demurrer to the return, and expressly gave a writ of error in any case within the acts. But in New York and New Jersey the practice of demurring to the return always prevailed. People v. Champion, 16 Johns. 60; Ex parte Jennings, 6 Cow. 518, 536; Silverthorne v. Railroad Co., 33 N. J. Law, 173, 372; State v. Assessors of City of Rahway, 43 N. J. Law, 338, 348; Gallagher v. Board, 45 N. J. Law, 465. And in both states the practice was commended as one enabling either party to review the judgment by writ of error. Per Spencer, J., in 16 Johns. 65 (A. D. 1819), and per Beasley, C. J., in 33 N. J. Law, 178 (A. D. 1868). See, also, Commercial Bank of Albany v. Canal Com'rs, 10 Wend. 25. Prom all these authorities it appears to be beyond doubt that when the proceedings for mandamus take the form of pleadings in personal actions, so that the rights of the parties are presented for determination therein, and a final judgment is rendered, a writ of error lies, according to the principles of the common law. The statute of March 17, 1870 (2 Gen. St. p. 2001), expressly santioning such writs of error, was merely declaratory of an existing right. A still wider departure from the letter of the statute of 1794 has taken place in this state, viz. the practice of demurring to the alternative writ itself. Pairbank v. Sheridan, 43 N. J. Law, 82; Rader v. Union Tp., Id. 518; Hopper v. Freeholders, 52 N. J. Law, 313, 19 Atl. 383; Wilbur v. Railway Co., 57 N. J. Law, 212, 31 Atl. 238. This practice is justified on the ground that it tends to simplicity, without in the least jeopardizing any right, and is in harmony with the modern idea, which likens the application for a mandamus to a personal action, and the alternative writ to a declaration therein. As a demurrer to the return opens for examination the contents of the writ itself (Town of Belvidere v. Warren R. Co., 84 N. J. Law, 193, 195), and final judgment thereon is subject to review by writ of error, there is no reason why the same matter may not be considered on a demurrer directly aimed at the writ, or why the judgment on that matter so determined should not be similarly reviewed.

For these reasons we think the present writ of error should be sustained. Consequently, we come to the merits of the question decided below, which is whether the relator was entitled to exercise the functions of a judge of the court of common pleas in the county of Hudson. This question turns upon the validity of the act of March 26, 1896 (Pamph. Laws 1896, p. 149), which enacted that after March 31, 1896, there should be but one judge of that court in each county; that he should be the president law judge then in office, and his successors; and that the terms of office of all other judges of said court should end on March 31, 1896. The relator contends that under the constitution of this state the legislature has no power to reduce the number of judges in this court, and therefore the act is invalid. The pertinent provisions, as found in the constitution of 1844, are these:

"Art. 6, § 1. The judicial power shall be vested in a court of errors and appeals in the last resort in all causes, as heretofore; a court for the trial of impeachments; a court of chancery; a prerogative court; a supreme court; circuit courts; and such inferior courts as now exist, and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish, as the public good shall re quire."

"Art. 6, § 6. (1) There shall be no more than five judges of the inferior court of common pleas in each of the counties in this state, after the terms of the judges of said court now in office shall terminate. One judge for each county shall be appointed every year, and no more, except to fill vacancies, which shall be for the unexpired term only. (2) The commissions for the first appointments of judges of said court shall bear date and take effect on the first day of April next; and all subsequent commissions for judges of said courts shall bear date and take effect on the first day of April in every successive year, except commissions to fill vacancies, which shall bear date and take effect when issued."

"Art. 7, § 2, subsec. 2. ...

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