Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
The sole question raised on this appeal is, Did the deputy clerk of the Municipal Court of the City of Summit have lawful authority to take a complaint for violation of the Motor Vehicle Act?
Defendant was apprehended while operating a motor vehicle in Summit on April 26, 1952. He was taken to police headquarters, examined by a physician and pronounced to be under the influence of intoxicating liquor and unfit to operate a motor vehicle. A complaint charging defendant with operating a motor vehicle while under the influence of intoxicating liquor, in violation of R.S. 39:4-50, was signed and sworn to before Frederick Fleming, who took the complaint as "Deputy Court Clerk." Fleming had been duly appointed deputy clerk of the municipal court pursuant to a supplement to an ordinance establishing a municipal court for the City of Summit under the provisions of L. 1948, c. 264 (N.J.S.A. 2:8 A -13 et seq. , now N.J.S. 2 A:8-1 et seq.).
After trial the municipal magistrate found defendant guilty of drunken driving, as charged. At the conclusion of
the hearing and before the entry of judgment of conviction, defendant moved to dismiss the complaint on the ground that Fleming had no authority as deputy clerk to take the complaint, and the municipal court was therefore without jurisdiction. The motion was denied.
Defendant appealed to the Union County Court from the judgment of conviction. He moved initially for an order reversing that judgment, again contending that the complaint was defective and that the local court lacked jurisdiction over the subject matter. The right to a trial de novo on the facts in the event of an adverse decision was reserved. After considering the stipulation of facts filed by the parties and hearing argument, the County Court entered its order denying defendant's motion. Defendant appeals under Rule 4:2-2(a)(3).
The complaint in this case was in the form set out in Criminal Procedure Form No. 11, the "Uniform Traffic Ticket." Rule 8:10-1. Rule 8:3-1(a) requires that "Complaints shall be written and shall be made on oath before any magistrate or other officer empowered by law to take complaints." (Italics ours.) Defendant argues that only a municipal magistrate may take a complaint for violation of the Motor Vehicle Act. He cites as authority R.S. 39:5-3, as amended, and directs the court's attention to the language of that section of the Motor Vehicle Act: "A complaint, in writing and duly verified having been made to a magistrate, * * *" and "All complaints shall be made before a magistrate of the municipality in which it is alleged that the violation occurred * * *."
However, R.S. 39:5-6, as amended, authorizes clerks and deputy clerks of municipal courts to take complaints. This section was last amended by L. 1952, c. 288, § 1, effective May 23, 1952, and now reads as follows:
"All acts, whether in connection with the taking of complaints, issuing of process, return thereof, taking of bail for appearance or committing to custody for failure to deposit such bail and all proceedings preliminary to trial, including the arraignment, taking of
plea and postponement of trial and all ministerial acts and proceedings subsequent to trial, may be performed by the clerk or deputy clerk of a magistrate, and the jurisdiction so to do with respect to a violation of this subtitle is hereby conferred." (Italics ours.)
Defendant appears to be of the impression that clerks and deputy clerks had no authority to take complaints until the effective date of the 1952 act, which date was subsequent to the date of the complaint and defendant's trial. An examination of ...