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State v. Court of Common Pleas of County of Mercer

Decided: October 4, 1948.


On appeal from the late Supreme Court, whose opinion is reported in 136 N.J.L. 380. Judgment on certiorari vacating order of the Mercer Common Pleas discharging appellant Griffin from imprisonment in the State Prison.

For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant and Burling. For reversal: None. The opinion of the court was delivered by Heher, J.


An order made by the Judge of the former Mercer Court of Common Pleas discharging appellant from imprisonment in the State Prison under sentence upon a conviction of crime was vacated by the late Supreme Court on certiorari; and the prisoner appeals. The case is here pursuant to Article XI, section IV, paragraph 8 of the Constitution of 1947 and chapter 367 of the Pamphlet Laws of 1948.

The initial question for decision is whether the order of discharge was reviewable on certiorari at the instance of the State. Did the Supreme Court have jurisdiction of the judgment on habeas corpus ? We think it did.

Habeas corpus ad subjiciendum is a civil and not a criminal proceeding. Cross v. Burke, 146 U.S. 82, 13 Sup. Ct. 22, 36 L. Ed. 896. It is a high prerogative common-law and not a statutory writ whose origin is lost in antiquity. State Bank at Morris v. Dickinson, 16 N.J.L. 354; Vannatta v. Morris Canal and Banking Co., 17 N.J.L. 159; In re Thompson, 85 N.J. Eq. 221, 232, et seq. The statute was

not designed to bestow an immunity from arbitrary imprisonment, for that is secured by Magna Charta, if indeed, it were not even more ancient, but to provide summary relief against impairment of the fundamental right. R.S. 2:82-1 et seq.; Church on Habeas Corpus (2 d ed.) section 25 a. It is in aid of the jurisdiction to enforce the immemorial right of personal liberty; but the summary remedy thus provided is nevertheless a special jurisdiction whose exercise is on well-settled principles subject to review on certiorari.

Proceedings summary in their character are ordinarily reviewable by certiorari. Vanpelt v. Vegthe, 14 N.J.L. 207; Rutherford v. Fen, 21 N.J.L. 700; State v. Wood, 23 N.J.L. 560; Taylor Provision Co. v. Adams Express Co., 72 N.J.L. 220; Jaudel v. Schoelzke, 95 N.J.L. 171; Defiance Fruit Co. v. Fox, 76 N.J.L. 482, 486; Eder v. Hudson Circuit Court, 104 N.J.L. 260. We quote Mr. Justice Van Syckel: "A writ of certiorari is in the nature of a writ of error, and is resorted to in those cases where a writ of error does not lie. When courts act in a summary way, or in a new course different from the common law, a certiorari, and not a writ of error, is the proper remedy." State, Elder, pros. v. District Medical Society of Hudson 35 N.J.L. 200. Chief Justice Hornblower said: "It is sufficient to say that a certiorari lies in all cases, unless taken away by the express words of a statute: Rex v. Mosely, 2 Burr. 1040: and not only, where there is another remedy, but even where an appeal is given upon the merits. Rex v. Mosely, 2 Burr. 1040. Kingsland v. Gould, 1 Halst R. 161, Middlesex election case, Coxe's R. 244. Ludlow v. Ludlow, 1 South. R. 389." New Jersey Railroad Transp. Co. v. Suydam, 17 N.J.L. 24, 40. Certiorari is "in the nature of a writ of error, to examine the legality of the commitment." Ex parte Watkins, 3 Peters 201.

Where the judge exercises a special summary statutory power, certiorari is an appropriate remedy, especially where there is no indication of a mode of review. Peltier v. Pennington, 14 N.J.L. 312; Westfall v. Dunning, 50 N.J.L. 459; Oetjen v. Hintemann, 91 N.J.L. 429. Here, the summary power to issue the writ is lodged in "the judge of a

court of common pleas." R.S. 2:82-14. And even if the court be a common-law court, yet, if it sit as a statutory tribunal under a special jurisdiction in a course of procedure not according to the common law, the rules applicable to summary proceedings apply. Defiance Fruit Co. v. Fox, supra; Knapp v. Kremer, 103 N.J.L. 227; State v. Rosenblum, 100 N.J.L. 240, affirmed 102 N.J.L. 125; Goodman Warehouse Corporation v. The Mayor and Aldermen of Jersey City, 102 N.J.L. 294, affirmed 133 A. 919. This is so if the statute declare the newly created tribunal to be a court of record; it is not thereby "to be assimilated to common law courts of record." Peltier v. Pennington, supra.

The office of the common-law writ of certiorari is to bring before the superior court for inspection the record of the proceedings of the inferior tribunal, to determine whether the latter had jurisdiction and had proceeded according to law. Errors of law as well as jurisdictional excesses are remediable on certiorari. In Bacon's Abridgement, the writ is defined thus: "A certiorari is an original writ issuing out of chancery or the King's Bench, directed to the judges or officers of inferior courts, commanding them to return the records of a cause depending before them, to the end that the party may have the more sure and speedy justice, before him or such other justices as he shall assign to hear the cause."

There are cases suggesting that when certiorari is given by statute, it lies to correct any legal mistakes; but where issued as at common law, the review is limited to the jurisdiction of the inferior tribunal. But this distinction would seem to be ill-founded. In the case of Jackson v. The People, 9 Mich. 111, it was said, apropos of this: "We have examined with much care all the English authorities within reach, bearing upon this subject, and have found nothing whatever to give color to such a distinction. There are indeed cases where a certiorari lies to examine errors generally, and others where it lies only to inquire into the jurisdiction; but the distinction arises out of ...

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