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Borawick v. Barba

Decided: June 18, 1951.


On appeal from the Superior Court, Chancery Division, Essex County.

For affirmance -- Chief Justice Vanderbilt and Justices Case, Oliphant, Wachenfeld and Ackerson. For reversal -- Justices Heher and Burling. The opinion of the court was delivered by Case, J. Heher, J. (dissenting). Mr. Justice Burling joins in this opinion.


Plaintiff is the mother of a child born out of lawful wedlock. She resides, with the child, in another state. She filed her complaint in the Superior Court, Chancery Division, praying that the court adjudge the defendant to be the father of the child and direct him to pay to the plaintiff suitable sums of money for the care, maintenance and education of the child as well as the expenses which were incurred as a result of the pregnancy of the plaintiff and the subsequent birth of the child, together with loss of earnings and other expenses incidental thereto, and that plaintiff, as the mother, be granted the custody together with the care, education and maintenance of the child. The Superior Court dismissed the complaint for lack of jurisdiction. An appeal from the order thereon was taken to the Appellate Division and comes to us on our own motion.

Appellant argues that the Superior Court had jurisdiction because of the following statutory provisions, R.S. 9:16-2, -3, -4, and because of the constitutional provision, Art. VI, sec. III, par. 2, that "The Superior Court shall have original general jurisdiction throughout the State in all causes."

An understanding of the statutory references requires a study of their history. The purpose of the old bastardy acts was to protect the public from becoming charged with the support of an illegitimate child. Jurisdiction was lodged with the justices of the peace and the proceedings were prosecuted by the overseer of the poor. The putative father was apprehended, security was required and appropriate orders were made against the father and the mother. That, briefly, was the procedure set up by the "Act for the maintenance of bastard children," passed February 26, 1795. Pat. 152. The substance of it, referred to with greater detail later herein, amplified to provide the lying-in expenses of the mother, an order of filiation against the father, a trial by jury if demanded and an appeal to the Sessions, was reenacted by the revision bearing the same title, passed March

27, 1874, Rev. 1877, p. 70. So, too, of the Revision of 1898 (found at p. 959 of the Pamphlet Laws of that year, and at p. 184 of the Compiled Statutes), with more particularity and with the proceedings set before a "magistrate," defined to include justices of the peace, judges of city criminal courts, police justices, recorders and all other officers having the powers of a committing magistrate. But the moving party was always the overseer of the poor. Kaufman v. Smathers, 111 N.J.L. 52 (E. & A. 1933). The Revised Statutes of 1937 assembled the provisions of the 1898 bastardy act as Title 9, chapter 17, viz., R.S. 9:17-1, et seq., and incorporated with them certain amendatory additions, such as transferring the function of an "overseer of the poor" to the "director of welfare" under the direction of the county welfare board in counties having such an officer and board. But the proceedings remained essentially as they had always been, namely, the means whereby the overseer of the poor, or a person occupying his relative position, could bring before the justice of the peace or other local magistrate the matter of an illegitimate child born or likely to be born so that the putative father might be bound to protect the public from the expense of the child's support.

The origin of R.S. 9:16-2, -3, -4, upon which appellant relies, was ch. 153, Pamph. Laws 1929, "An Act concerning the support and education of children born out of wedlock." The statute did not go into a determination of paternity; but such a determination is a necessary preliminary to an order upon the father for support and is to be reached by a procedure correlated to that of present chapter 17 -- the former bastardy act. The 1929 statute provided that a child born out of wedlock was entitled to support and education from its father and mother to the same extent as if it had been born in lawful wedlock and that proceedings to enforce the statute could be maintained by one parent against the other or by the person having physical custody of the child, or, if the child was likely to become a public charge, that proceedings might be instituted by the overseer of the poor of the municipality

where the father and mother or either of them resided. It further provided that "For the purposes of this act jurisdiction is conferred upon the magistrates or courts now exercising jurisdiction in bastardy cases. The action herein given shall be deemed cumulative as to the remedies contained in the act entitled 'An act for the maintenance of bastard children' (Revision of 1898), approved June fourteenth, one thousand eight hundred ninety eight, and the acts amendatory thereof and supplemental thereto." Thus, the statute was an addition to the Bastardy Act and placed jurisdiction with the magistrates or courts having jurisdiction in bastardy cases; it was incorporated into the Revised Statutes of 1937 as Title 9, chapter 16, sections 2, 3 and 4, viz., R.S. 9:16-2, -3, and -4; and the proceedings thereunder are cumulative to the Bastardy Act and are had before the magistrates or courts which exercise jurisdiction in the bastardy proceedings, namely (R.S. 9:17-1), "justices of the peace, judges of city criminal courts, judges of the juvenile and domestic relations courts, police justices, recorders and all other officers having the powers of a committing magistrate," "except that justices of the peace in cities having a police, criminal or recorder's court shall not have jurisdiction of any such proceedings."

The decision of this court in Kopak v. Polzer, 4 N.J. 327 (1950), was premised on the fact that there had already been a bastardy proceeding instituted by the overseer of the poor, wherein the defendant had entered a plea of guilty. Paternity had been adjudicated. The points presented were: (1) the action was barred by order of the filiation court releasing the father from further support; (2) the action was by the mother in her own behalf and not for the child and did not present other statutory requisites; (3) a ruling on evidence. Jurisdiction of the criminal judicial district court to entertain a proceeding to compel an adjudged father to render support was not raised, was not considered and was not passed upon. The dictum in the opinion of the Appellate Division, 5 N.J. Super. 114 (App. Div. 1949), that the

Constitution gave a concurrent jurisdiction to the Superior Court was not pertinent to the decision and was not considered here. We discover no authority for a finding of filiation elsewhere than in the bastardy courts.

It follows that jurisdiction does not lie in the Superior Court and did not lie in any of those courts whose jurisdictions have been taken over by the Superior Court.

R.S. 9:16-1 is placed by the Revised Statutes of 1937 in the same chapter with and immediately preceding, both in physical position and in numerical classification, sections -2, -3 and -4, which we have just been considering, but it is not connected with them historically, in subject matter or in jurisdiction. It provides that the mother of an illegitimate child shall have the exclusive right to its custody and that the putative father shall have no right of custody, control or access to the child without the mother's consent; but that, if the mother is unfit, the Court of Chancery, or any other court which may have jurisdiction in the premises, may make any order touching the custody or control of the child which might theretofore have been made and that the "section is intended to be declaratory of the existing law." That section was a reenactment of ch. 331, Pamph. Laws 1913, which in turn was a supplement to ch. 92, Pamph. Laws 1902, entitled "An Act concerning minors, their adoption, custody and maintenance (Revision of 1902)." The last-named statute, in section 1, provides for proceeding by petition in the Orphans' Court; in section 6 for jurisdiction, in certain aspects, in the Court of Chancery; and in section 14 for jurisdiction, in certain other aspects, in the Chancellor or a Supreme Court Justice; but neither the 1902 statute nor the 1913 statute, with which, as the predecessor of R.S. 9:16-1, we are immediately concerned, furnishes any authority for a proceeding to determine paternity or to give other relief in illegitimacy. Custody, although prayed in the complaint, is not a real issue. Plaintiff has the custody, and no one disputes her right to it or the propriety of her having it.

Since this is not a proceeding in strict bastardy we have passed over the facts that neither the mother nor her child has any settlement in this State and is not shown to be likely to become public charges here, and that no local authority burdened with the care of the poor is made a party.

Before discussing the effect of the express words of the Constitution we shall explore the possibility of an original jurisdiction in the Superior Court acquired from a superseded court to whose powers it is the successor. The only court through whose powers such an inherited jurisdiction could come would be the former Supreme Court. Article XXII of the 1776 Constitution provided: "The common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature * * *." Article XXI of the same document provided that "all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony * * *." That Constitution also, by inference rather than by direct statement, provided for the continuance of the Supreme Court; and the Legislature, three months later (October 2, 1776), enacted that "the several courts of law and equity of this State shall be confirmed and established, and continued to be held with like powers under the present government, as they were held at and before the declaration of independency, lately made by the honorable the continental congress." Pat. 38. It has been held that by the conjunction of the ordinance of Lord Cornbury, enacted in 1704, other ordinances including the ordinance of 1714 passed by Governor Hunter and his Council, the 1776 Constitution, the statute supra of October 2, 1776, and the Constitution of 1844, the former Supreme Court became vested with the ordinary common law original jurisdiction of the Court of King's Bench, shared to some extent by the county circuit courts and the courts of common pleas, and that it became more exclusively vested with the appellate and extraordinary

jurisdiction of that English court. State, Dufford, Prosecutor, v. Decue, 31 N.J.L. 302 (Sup. Ct. 1865); Hedden v. Hand, 90 N.J. Eq. 583 (E. & A. 1919); State v. Longo, 136 N.J.L. 589, 594 (E. & A. 1947).

Distinction must be made between that character of bastardy proceedings which had to do with the determination of legitimacy or illegitimacy and the effect thereof upon the rights of inheritance and upon family position generally and that procedure which was directed toward the support of a bastard at public expense. The latter is and has always been a part of the law concerning the settlement and support of the poor. Cf. Regina v. Cambridgeshire, 7 A. & E. 480. Notwithstanding a dictum to the contrary in Schomp v. Tompkins, 46 N.J.L. 608 (E. & A. 1884), there was no obligation on the putative father to support his illegitimate child at common law, Commonwealth v. Dornes, 132 N.E. 363 (Sup. Jud. Ct. Mass. 1921), Kordoski v. Belanger, 160 A. 205 (Sup. Ct. R.I. 1932), and there is none today except where, as here, the common law has been changed by statute, People ex rel. Lawton v. Snell, 216 N.Y. 527, 111 N.E. 50 (Ct. of Appeals N.Y. 1916), Murrell v. Industrial Commission, 291 Ill. 334, 126 N.E. 189 (Sup. Ct. Ill. 1920). We are not concerned with actions on contract, either express or implied.

Our colonial statute, XIV Geo. III. A.D. 1774, printed as ch. DXC of Allinson (page 403) and therefore within the statutes specified for retention in the 1776 Constitution, was entitled "An Act for the Settlement and Relief of the Poor" and in paragraph 4 provided that "Whereas single Women with Child often remove from the Places of their Settlement, and are delivered of Bastard Children in distant Cities, Townships or Precincts, whereby such Cities, Townships or Precincts are unjustly liable to, and often made chargeable with the Support of such Bastard Children, Be It Therefore Enacted by the ...

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