van Winkle v. Caffrey

• Decision Date: 30 November 1934
• Citation: 175 A. 362
• Parties: VAN WINKLE v. CAFFREY, Circuit Judge.
• Court: New Jersey Supreme Court

175 A. 362

VAN WINKLE

v. CAFFREY, Circuit Judge.

Supreme Court of New Jersey.

Nov. 30, 1934.

Application by Winant Van Winkle for a writ of prohibiton to prohibit Edwin E. Caffrey, Judge of the Bergen County Circuit Court, from proceeding with a petition filed in such court.

Writ denied.

Argued November term, 1934, before TRENCHARD, IIEHER, and PERSKIE, JJ.

McDermott, Enright & Carpenter, of Jersey City(James D. Carpenter, Jr., of Jersey City, of counsel), for petitioner.

Hamilton Cross, of Jersey City, for respondent.

PER CURIAM.

This is a motion for a writ of prohibition to prohibit the circuit court of Bergen county from proceeding with a petition filed by William H. J. Ely pursuant to chapter 187, P. L. 1930, article 26, p. 829(Comp. St. Supp. 1930, § 65—2601A et seq.) to contest the election of a Senator in that county, in which the certificate of the county board of canvassers shows that Winant Van Winkle received 646 more votes than his opponent, William H. J. Ely.

Now at the outset it is well to fully recognize the fact that our State Constitution provides in paragraph 2 of section 4 of article 4 that "each house [Senate and General Assembly] shall be the judge of the elections, returns and qualifications of its own members."

Therefore it is undoubtedly true, as stated by Chief Justice Depue in Kearns v. Edwards, 17 N. J. Law J. 51, that "the constitution having conferred upon the legislative department the power to judge—that is judicially determine—it would not be competent for the Legislature to confer that authority on the judicial department of government."Again in Ruh v. Frambach, 47 N. J. Law, 85, the Supreme Court said: "The legislature have the power to determine the source from which the certificate of election shall issue, but the house of assembly being by the constitution the judge of the election of its own members, can go behind the certificate whether issued by a board of canvassers or by order of a justice of the Supreme Court, and finally decide who is entitled to the seat.* * * The legislature could not invest a justice of the Supreme Court with the power of determining the election of a member of assembly."

If, then, the Legislature intended by the act of 1930 to give the circuit court the power of finally judicially determining the election of a member of the Senate (which of course it did not), that purpose failed because of the constitutional provision referred to.

It is plain, we think, that the Legislature intended, when it enacted article 26 of the act of 1930, that the power to finally determine the election of a senator should remain where it is placed by the Constitution.As was said by Chief Justice Beasley in Conger v. Convery, 52 N. J. Law 417, 20 A. 166, 168, affirmed53 N. J. Law 658, 24...