State v. Weiss, A--728

• Decision Date: 18 January 1951
• Docket Number: No. A--728,A--728
• Citation: 11 N.J.Super. 250,78 A.2d 272
• Parties: STATE v. WEISS.
• Court: New Jersey Superior Court — Appellate Division

Page 250

11 N.J.Super. 250

78 A.2d 272

STATE v. WEISS.

No. A--728.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 8, 1951.

Jan. 18, 1951.

Edward S. Miller, Millville, argued the cause for defendant-appellant (David C. Harper, Bridgeton, attorney).

William Gallner, Bridgeton, argued the cause for plaintiff-respondent.

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WM. J. BRENNAN, Jr., J.A.D.

An illegitimate child was born on April 12, 1949, in Bridgeton Hospital, at Bridgeton, Cumberland County. The child's mother, whose home, and legal settlement, was in Pleasantville, Atlantic County, had come to the hospital from Pleasantville for the sole purpose of her confinement, and upon discharge had returned with the child to Pleasantville. Several months later, in January 1950, the Overseer of the Poor of Bridgeton, at the request of the mother, who with the baby was still living at the time in Pleasantville, initiated a bastardy proceeding against the defendant in the Bridgeton Municipal Court under R.S. 9:17--2, as amended by P.L.1949, c. 141, N.J.S.A. Defendants unsuccessfully challenged the jurisdiction of the municipal court and an order under the statute was made against him. He appealed to the Cumberland County Court, R.S. 9:17--20, N.J.S.A., and at the hearing on the appeal raised the single question of jurisdiction. The county court on June 30, 1950, entered the order before us for review, dismissing defendant's appeal from the order of the municipal court and holding that 'jurisdiction, in bastardy matters, resides in the place where the child is born, and the Magistrate's court of the City of Bridgeton, as well as this Court, has jurisdiction.'

The order of the county court will be reversed. Although the child was born in Bridgeton, the mother was not living in that municipality when the proceeding was brought, and Pleasantville, her legal settlement, where she was living, is a municipality of Atlantic County, not of Cumberland County. The statute invests jurisdiction in any magistrate of a county but only if at the time the proceeding is initiated the mother is living in a municipality of that county, which municipality, also, is either that in which the child is born, or is likely to be born, or that of the mother's legal settlement. Section 9:17--2, as amended in 1949, N.J.S.A., provides: 'If a woman is delivered of an illegitimate child or declares herself to be pregnant of a child likely to be born illegitimate, which is or is likely to become a public charge, a duly authorized representative of the State Board of Child Welfare or an overseer of the poor of the municipality where the woman is, or of the municipality wherein she has a legal settlement, may, by complaint, apply to a magistrate of the same county wherein the woman is, to make inquiry into the facts and circumstances of the case; Provided, however, that the initiation of proceedings under this chapter shall in no wise be deemed a condition precedent nor a deterrent to the granting of assistance or relief under any law of this State to persons otherwise eligible therefor.'

Originally the proceeding was maintainable only by the overseer of the poor of the municipality in which the child was born or was likely to be born, so that, the mother living there, the child was, or was likely to become, chargeable to the municipality. Act of February 26, 1795, Rev. 1821, p. 171; Dally v. Overseers of Woodbridge, 21 N.J.L. 491 (Sup.Ct. 1848); Quick v. Overseer of Amwell, 3 N.J.L. 569 (1017) (Sup.St. 1813); Hawkins v. State, 21 N.J.L. 630 (E. & A. 1845); Nottingham v. Amwell, 21 N.J.L. 27 (Sup.Ct. 1848). By Act of March 1, 1851 (Laws of 1850--51, p. 137) authority to maintain the proceeding was given also to the overseer of the poor of the municipality in which the mother had her legal settlement at the time of the child's birth if subsequently the mother again took up her residence there. Garwood v. Overseers of Poor of Township of Waterford, 27 N.J.L. 436 (Sup.Ct. 1859); McCoy v. Overseer of Poor of Newton, 37 N.J.L. 133 (Sup.Ct. 1874). Later revisions of the statute in 1874 (Rev. 1709--1877, p. 70) and 1898 (P.L. 1898, c. 241, p. 959), continued both provisions which were codified in the Revision of 1937 as R.S. 9:17--2, N.J.S.A. The requirement, implicit in the earlier statutes, that the mother be living in either such municipality of the county at the time the proceeding was brought before a magistrate of the county, was made explicit in the 1874 Revision in the wording authorizing the bringing of the action by the overseer of the poor of either such municipality 'where such woman may be,' and in the 1937 Revision, and present text, 'where the woman is.'

The cases under the statute prior to its 1949 amendment emphasized that its purpose was to protect the municipality where the child was born, or was about to be born, or had its legal settlement (which...