State v. Rosenblum

• Decision Date: 07 December 1924
• Parties: STATE v. ROSENBLUM.
• Court: New Jersey Supreme Court

126 A. 852

STATE

v. ROSENBLUM.

Supreme Court of New Jersey.

Dec. 7, 1924.

Certiorari to Court of Common Pleas, Mercer County.

Isaac Rosenblum was convicted of operating motor vehicle while under influence of liquor, and brings certiorari. Affirmed.

Argued May term, 1924, before KALISCH, BLACK, and CAMPBELL, JJ.

Harry Heher, of Trenton, for prosecutor.

Harvey T. Satterthwaite, of Trenton, for the State.

KALISCH, J. The prosecutor was convicted in the recorder's court of the township of Lawrence upon a complaint charging hira with operating a motor vehicle on a public highway in said township, on the 31st day of October, 1923, while under the influence of intoxicating liquor, etc., in violation of subdivision 3 of section 14 of the Motor Vehicle Act (P. L. 1921, c. 208), and was sentenced by the recorder upon conviction to imprisonment in the Mercer county jail for a term of 30 days. From this conviction and judgment the prosecutor appealed to the Mercer county court of common pleas, where the case was tried de novo, as directed by the Motor Vehicle Act, supra.

Where an appeal is taken, by virtue of section 27 of the act referred to, the succeeding section (28) provides that it shall be the duty of the magistrate to send all papers and all money, if any, deposited according to the preceding section and all money paid for costs of prosecution, together with a transcript of the proceedings in the case to the next court of common pleas of the said county, which court shall de novo, and in a summary way, try and determine such appeal, and, in case the judgment or sentence of the magistrate shall be reversed on such appeal, the said common pleas court shall order the return of all money deposited, as aforesaid, and all costs of prosecution paid by the latter.

The significance of this section is that in this class of cases the common pleas court sits as a statutory tribunal. True, it is a court of general jurisdiction, where the procedure is in accordance with the common law, but in cases arising under the provisions of the statute in question its jurisdiction is statutory and special. The course of precedure provided is not in accordance with the common law. Hence it follows that any of the essential steps taken in a cause by a court in the exercise of this special jurisdiction conferred upon it by statute can only find legal sanction when it appears that there has been a rigid observance of the statutory mandate. The legal principles which are applied to procedure in cases of bastardy, desertion, removal of paupers, penal statutes, and summary proceedings, generally, are applicable here.

Chief Justice Green, in Overseers of Princeton v. Overseers of South Brunswick, 23 N. J. Law, 169, speaking for the Supreme Court, at pages 172 and 173, says:

"The legal principles by which the decision of this case must be governed have been too long and too firmly settled to admit, at this day, of doubt or controversy.

"Two justices, in making an order for the removal of a pauper, or of a person likely to become chargeable, exercise a special statutory authority, which must be strictly pursued, or their acts are invalid. Everything necessary to confer jurisdiction must not only be done, but must appear upon the face of the proceedings to have been done. There can be no intendment in support of their proceedings. The case must appear to have been within the scope of their authority, otherwise their act will be deemed an usurpation of power, and their proceedings coram non judice. In such case there can be no trial upon the merits before the sessions. * * * Chittinston v. Penhurst, 2 Salk. 473, 475; S. C. 5 Mod. 149; Rex v. Dobbyn, 2 Salk. 474; Rex v. Stepney, Burr. Sett. Cas. 23.

"The principle is of universal application to all tribunals exercising a special statutory authority. The legal presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction), but that a cause is without its jurisdiction till the contrary appears. [Cases cited.] But it is well settled that an omission to state upon the face of the order any of the essential elements of the jurisdiction of the tribunal is a defect, not of form, but of substance. [Cases cited.]"

It is pertinent to this discussion to note here that the general jurisdiction of the court of common pleas has always been limited to cases of a civil nature only. The history of the legislation of this state relating to the trial of cases or a quasi criminal nature or appeals therefrom shows that the common-law procedure was strictly adhered to, in that the jurisdiction to try and determine such cases was invariably conferred upon the sessions court, except in civil actions on penal statutes to recover a penalty.

The offense, created by the statutory provision in question, of which the prosecutor was convicted, is purely criminal in character. No question has been raised as to the power of the Legislature to confer the right of appeal in a criminal case to a court whose jurisdiction before and after the adoption of the Constitution has been confined to the exercise of jurisdiction in civil cases. But on the assumption that the jurisdiction was constitutionally conferred, upon the court, in dealing with the case under review, the court was limited to a strict adherence to the provisions of the statute, and therefore, under the law, as settled in this state, nothing in the record could be left to intendment.

Keeping in view all that has been said upon the subject of the special jurisdiction of the court of common pleas, and the necessity that it should appear that there was a strict compliance with the provisions of the statute, it is quite apparent from a plain reading of section 28 that the court of common pleas is not solely limited to a trial de novo upon the facts, but must take into consideration the transcript of the initial statutory proceedings, for, if it should appear upon the face of the complaint that the magistrate had no jurisdiction of the subject-matter complained of, or had not acquired jurisdiction of the person, the latter not voluntarily appearing, and going to trial, under protest, or that there was substantive defect in the statutory proceedings, the court would be warranted to reverse the judgment and pursue the course pointed out by section 28 of the statute.

We are further of the view that the party appealing is entitled to raise in the court of common pleas all questions relating to defects of substance in the proceedings in the court of first instance, unless such procedural defects were waived by him, by his going voluntarily to trial, without objecting to the procedure.

In the present case the magistrate sent up to the common pleas court the conviction of the prosecutor, in the manner and form as prescribed by a supplement to the act of 1921, which supplement is chapter 137 of P. L. 1923, p. 298, and also a transcript of the proceedings in the case. By the latter it appears that all the requirements of the provisions of the statute under which the prosecutor was arrested, arraigned, tried, convicted, and sentenced were complied with.

As the case is tried de novo, on the appeal, in the court of common pleas, the order made by it, ipso facto, nullifies the order of the magistrate. See State, Dunn, Pros., v. Overseers of the Poor, 32 N. J. Law, 275, 284. We are therefore only concerned with the regularity of the proceedings in the court of common pleas and the jurisdictional question presented there, whether or not there was a sworn complaint on file in the recorder's court at the time of the trial of the prosecutor, for, if there was no sworn complaint, the magistrate was without jurisdiction, and the prosecutor would be entitled to a reversal.

The record of the common pleas court shows that the jurisdiction of the recorder...