For the prosecutor, Charles M. Grosman.
For the defendants Juvenile and Domestic Relations Court and Harry W. Lindeman, Judge, Arthur T. Vanderbilt (G. Dixon Speakman, of counsel).
For the defendant Anna Frank, Michael Breitkopf (Joseph Siegler, of counsel).
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. Certiorari was granted to review an order made by the Juvenile and Domestic Relations Court of the County of Essex on June 16th, 1947, adjudging prosecutor "guilty of constructive desertion" and his wife as "apt to become a public charge," and directing the payment of $15 per week for her support. The order recites that prosecutor was tried on a complaint made by his wife under R.S. 9:6-1, et seq., R.S. 9:18-14 and R.S. 44:1-1, et seq., charging him "with abandoning, abusing, deserting or wilfully refusing or neglecting to support his family." The complaint, however, makes no mention of section 9:6-1. It alleges that prosecutor "has refused and failed to provide adequate support and maintenance of his family, * * * in that for the past several weeks" he "has failed to support his wife contrary to" R.S. 9:18-1, et seq., R.S. 44:1-1, et seq., R.S. 2:204-1, et seq., and R.S. 2:205-1, et seq.
It is said that chapter 77 of the laws of 1946 (Pamph. L., p. 267), amending R.S. 9:18-14, supra, was designed to confer upon the Domestic Relations Courts concurrent jurisdiction with Chancery "in matters of support and maintenance of a wife," and to that extent constitutes an impairment of the exclusive jurisdiction of Chancery at the time of the adoption of the Constitution of 1844, and so exceeds the bounds of constitutional limitations. We think not.
The subject-matter of the cited statute was not within the exclusive inherent jurisdiction of equity prior to the adoption of the Constitution of 1844. As early as 1799, justices
of the peace were given a summary jurisdiction in cases where a husband defaulted in the performance of the obligation to support his family. The power was amplified in 1864. Rev. 1821, p. 473; Nixon's Elmer's Digest (4 th ed.) 1007, 1008. This jurisdiction was transferred to the Domestic Relations Courts upon their creation in 1929; and it has since reposed there without question. Pamph. L. 1929, p. 274; R.S. 9:18-4, et seq. In 1794, our Chancery for the first time was invested by the Council and General Assembly with jurisdiction over divorces and alimony and the maintenance of children as an incident thereto, subjects until then within the exclusive province of the ecclesiastical courts. Paterson's Laws, 143; Harris v. Vanderveer's Executor, 21 N.J. Eq. 424, 432. And jurisdiction to award separate maintenance in cases of abandonment and refusal or neglect of support was not granted to Chancery until the year 1818. Pamph. L., p. 20; Lynde v. Lynde, 64 N.J. Eq. 736, 752. The amendment of 1946 cited supra empowered the Domestic Relations Courts to provide "adequate" support and maintenance of "the spouse, child, children or the entire family," and thus enlarged the pre-existing jurisdiction. Vide Hiers v. Hiers, 132 Id. 610. Alimony, in its origin, was the method by which the spiritual courts of England enforced the duty of support owed by the husband to the wife "during such times as they were legally separated pending the marriage relation." Lynde v. Lynde, supra.
Only the inherent powers of our constitutional courts as they existed in their English prototypes were saved from alteration by article VI, section I and article X, section I of the Constitution of 1844. It is the essential nature or jurisdiction of the constitutional courts that was thereby rendered indestructible and unalterable in the legislative forum. The functions and powers thus safeguarded are those inherent in the constitution of the court itself. Harris v. Vanderveer's Executor, supra; Jersey City v. Lembeck, 31 N.J. Eq. 255; Traphagen v. Township of West Hoboken, 39 N.J.L. 232; Hedden v. Hand, 90 ...