On motion for reargument.
For denial -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For granting -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The defendant petitioned for a reargument of the appeal on two grounds that are of such general interest that we deem it advisable to set forth our views thereon.
The first ground is that this Court, after requesting counsel to argue the point first raised in the respondent's brief, declined to rule on the constitutionality of R.S. 40:47-4 because the question had not been raised below.
The appeal here was from a judgment of the Law Division of the Superior Court, dismissing an information in the nature of a writ of quo warranto. The appeal was taken to the Appellate Division and certified by this Court on its own motion. After argument we reversed the judgment below and entered
judgment for the plaintiff. As Point V of his brief the defendant alleged that R.S. 40:47-4 was unconstitutional and counsel were requested by the court to give attention to this point in their argument. In our opinion this constitutional question was disposed of as follows:
"The defendant's next contention, to escape the operation of this statute, is that it is unconstitutional as by its terms it is subject to another statute that permits a veteran to deduct five years from his age. Whatever the merits of this attack on the constitutionality of R.S. 40:47-4 may be, they need not be resolved here. There is nothing in the record even to hint that this argument was raised at either the pretrial conference or the trial and, this being so, the defendant should not be permitted to raise it on appeal."
The defendant now urges that this is error, citing Bradner, New Jersey Law Practice, 676, § 731, wherein it is said that the appellate court will not consider "Points of law not considered by lower court unless involving matters of public policy or constitutional questions." The cases cited by Bradner, however, to support this statement demonstrate the correctness of our ruling and the weakness of the defendant's contention. In McMichael v. Horay, 90 N.J.L. 142 (E. & A. 1917), the court affirmed the judgment below on grounds of public policy not considered below. Commenting on its power so to do the court said (p. 145):
"This court held in State v. Heyer, 89 N.J.L. 187, that a question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. But this must be read in the light of our holding in State v. Shupe, 88 Id. 610, where it was decided that a court of last resort need not hear a party on a question which could have been, but was not, raised in an intermediate court of appeal, except where the question goes to the jurisdiction of the subject-matter or where a question of public policy is involved. The true doctrine is that a court of appeals need not, not that it cannot, decide a question arising on a record before it, which was not raised in a court below, whether that court be an intermediate court of appeals or a court of first instance."
Five years later the court of last resort refused to consider a constitutional question not raised below and affirmed the
judgment under review, Mahnken v. Meltz, 97 N.J.L. 159 (E. & A. 1922). With respect to the constitutional question ...