State v. Mayor

• Decision Date: 16 December 1893
• Citation: 56 N.J.L. 222,28 A. 378
• Parties: STATE (WHITE, Prosecutor) v. MAYOR, ETC., OF BOROUGH OF NEPTUNE CITY.
• Court: New Jersey Supreme Court

28 A. 378

56 N.J.L. 222

STATE (WHITE, Prosecutor)

v. MAYOR, ETC., OF BOROUGH OF NEPTUNE CITY.

Supreme Court of New Jersey.

Dec. 16, 1893.

(Syllabus by the Court.)

Certiorari at the suit of William P. White against the mayor and common council of the borough of Neptune City to review a conviction before a justice of the peace for violating a borough ordinance. Dismissed.

Argued November term, 1893, before ABBETT and DIXON, JJ.

David Harvey, Jr., for prosecutor.

DIXON, J. The prosecutor was sued in four actions instituted by the mayor and council of the borough of Neptune city before a justice of the peace in the county of Monmouth for penalties said to have been incurred by the violation of an ordinance of the borough passed under authority of "An act respecting licenses in incorporated boroughs," approved March 28, 1892, (P. L 1892, p. 293.) Judgments having been rendered against him in these proceedings, he has removed them to this court by writs of certiorari, and now assails them chiefly upon the ground that they lack the essentials of "summary convictions." The justice before whom the suits were brought regarded them as actions in the court for the trial of small causes, and has so entitled the records returned with the writs of certiorari. It is necessary, therefore, to determine in what capacity the judicial officer on whom power is conferred by the statute in question is to act, for the determination of that matter must have an important bearing upon the judgments which we should now render. The proceeding intended by the statute is a civil suit This is, I think, conclusively settled by the decision of the court of errors in Brophy v. City of Perth Amboy, 44 N.J.Law, 217, upon provisions identical in substance with those now before us. In describing the procedure, the statute first empowers "every justice of the peace in any county" to issue process; then it directs "the said court, justice of the peace or recorder" to hear the testimony, and give judgment; and, finally, it requires "the said court, justice of the peace, police justice or recorder" to give judgment, and issue execution. It is not easy to gather the sense of such incongruous clauses as these, but the best construction I can put upon them is that the judicial officer intended is a justice of the peace, or a police justice, or recorder invested with the powers of a justice of the peace, and that such officer is to hold a court. Under these views, then, we have a court, presided over by a justice of the peace or an officer possessing the authority of a justice of the peace, and competent to entertain a civil suit.

The next question is whether the court thus contemplated by this statute is one newly created by the statute itself, or is the pre-existing and well known "justice's court." According to the decision in Greely v. Passaic, 42 N.J.Law, 429, we should deem it the justice's court, unless the act under review clearly indicates the contrary. The procedure prescribed by this act differs from that prescribed by the small cause court act in several respects. A complaint under oath before summons takes the place of a state of demand without oath after summons. The summons may be made returnable within a different period. And perhaps a trial by Jury is denied, as apparently it can be, in even civil actions brought for the recovery of penalties imposed by municipal ordinances. McGear v. Woodruff, 33 N.J.Law, 213. But these modifications of the procedure do not necessarily lead to the conclusion that a new tribunal is to be erected. The machinery of the old justice's court is adequate for this new practice. Other features of the act strongly suggest that the legislature had in mind this existing machinery, for without its supplemental aid it will be difficult to give effect to this statute. The act directs that process in the nature of a summons is to be issued, but does not say by whom, or how it shall be served, or how its service shall be attested. It requires the court to give judgment for the penalty and costs, but does not say what costs. Execution is to issue against the goods and chattels and the body of the defendant, but to what officer the writ shall go, and how it shall be executed against goods and chattels, are not stated. On all these points the act constituting courts for the trial of small causes affords the needed information. So the act under review dispenses with a special order as preliminary to the awarding of execution against the body. Such an order is not required in any proceedings before a justice of the peace, except when he...