On rule to show cause why a writ of prohibition should not issue.
For the rule, Lum, Tamblyn & Fairlie (Ralph E. Lum, of counsel).
Contra, John J. Fallon and Charles Hershenstein (J. Emil Walscheid, of counsel).
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by HEHER, J. Under chapter 201 of the Laws of 1940, N.J.S.A. 2:212-4.4, the "Fourth Criminal Judicial District of the County of Hudson' came into being; and thereafter, on
October 4th, 1940, the legislature in joint session, pursuant to R.S. 1937, 2:212-1, et seq., as amended by chapter 200 of the laws of 1940 (N.J.S.A. 2:212-1, 2:212-1, et seq.), elected petitioner judge of the court thereby constituted in that territorial district. He thereupon qualified and is now functioning as such. This court has found that the creation of the tribunal was a valid exercise of legislative power. Wilentz v. Galvin, 125 N.J.L. 455.
It is averred in the petition herein that under R.S. 2:213-1, as amended by chapter 200 of the laws of 1940, supra, the court thus formed is invested with exclusive cognizance of offenses denounced by title 2, subtitle 15, of the Revision of 1937; that the judges of the Hoboken Recorder's Court and of the First and Second Criminal Courts of the City of Jersey City, the provision granting exclusive jurisdiction to the newly-organized court to the contrary notwithstanding, have since "repeatedly and consistently" exercised their pre-existing jurisdiction of such offenses; and that petitioner, "as Judge of the Court of the Fourth Criminal Judicial District of Hudson County is without any other proper, adequate and immediate remedy to prohibit the defendant courts and the judges thereof from usurping the exclusive jurisdiction" of his tribunal. And the prayer is for a writ of prohibition enjoining these courts and the judges thereof "from exercising or attempting to exercise any and all jurisdiction for violations" of the last cited statute.
Prohibition is a prerogative writ little known to our jurisprudence. We are aware of but three cases in which it was invoked, and in each the application was denied. State v. Price, 8 N.J.L. 358; Ruh v. Frambach, 47 Id. 85; Van Winkle v. Caffrey, 12 N.J. Mis. R. 834. Presumably, this nonuser has been due to the availability of other sufficient remedies, for it is a common law remedy of ancient origin and as such was incorporated in our judicial system by force of article X, paragraph 1, of the State Constitution. And the legislature has quiet recently given recognition to it as a subsisting extraordinary remedy. By chapter 190 of the laws of 1938, this court was invested with authority to make rules regulating the practice and procedure on prohibition. Pamph. L., p. 409; N.J.S.A. 2:80-4.
Since the scope of this remedial process has not been enlarged by statute or practice, it necessarily exists in our jurisprudence as it was at common law at the time of the adoption of our constitution. And so we must have recourse to that system at that particular time for its true function and significance, and disregard the subsequent modifications effected by statute or practice in England.
The writ of prohibition is as old as the common law itself. Glanville, the author of the earliest known work upon English law, written about the year 1181, gives several forms of the writ as then in use. The jurisdiction was generally exercised only by the King's Bench, though not exclusively confined to that judicial authority. 3 Blk. Com. 112; High's Extraordinary Legal Remedies (3 d ed.), § 764. Bacon thus states the origin and reason of the writ: "As all external jurisdiction, whether ecclesiastical or civil, is derived from the crown, and the administration of justice is committed to a great variety of courts, hence it hath been the care of the crown, that these courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ of prohibition was framed; which issues out of the superior courts of common law to restrain the inferior courts, * * *. The object of prohibitions in general is, the preservation of the right of the king's crown and courts, and the ease and quiet of the subject. * * * The king may sue for a prohibition, though the plea in the spiritual court be between two common persons, because the suit is in derogation of his crown and dignity." 8 Bacon's Abridgement, 206, 207, 210. Blackstone treats of the writ under the head of "Cognizance of Private Wrongs;" and he defines it as a remedy for injury ensuing from "encroachment of jurisdiction, or calling one coram non judice (before a judge unauthorized to take cognizance of the affair), to answer in a court that has no legal cognizance of the cause." He continues: "The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen (to another examination or trial), by a jurisdiction or manner
of process disallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea." 3 Blk. Com. 111-113. "The foundation for the writ of prohibition, as shown by the old books, consisted of: first, contempt of the crown, and disherison of it in taking on them judicial power where they have no right; second, is a damage to the party." Ede v. Jackson, Fortesc. 345; 92 Reprint 883.
It was by this process that the courts of common law preserved and extended their jurisdiction, "keeping other tribunals to their own peculiar province, and that they protected parties in their common law rights as opposed to rights good at ecclesiastical law. At a later day the Chancery, in its struggle with common law courts, employed the injunction to effect a similar purpose; but there was this important difference between the prohibition of common law courts and the injunction of Chancery, that the injunction restrained only parties, while the prohibition restrained both parties and courts. Only, therefore, in its effect in restraining parties can we say that the prohibition anticipated the injunction." Hazeltine, Essay on Early Equity, in Vinogradoff , Essays in Legal History, 277. Its principal use in early times having been the prevention of what was deemed to be the encroachment of the ...