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State v. Osborn

Decided: April 4, 1960.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LE ROY OSBORN, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

The defendant was convicted in the "Marine Navigation Court," by Frank Walsh, Jr., "Judge-Magistrate," of recklessly operating a power vessel in the tidal waters of the Manasquan River in violation of L. 1952, c. 157, ยง 4, N.J.S.A. 12:7-47, and was fined $100. He appealed to the Ocean County Court, which "affirmed" his conviction after a trial de novo, but imposed a fine of $25. See R.R. 3:10-10(e) as to the proper practice. The defendant then appealed to the Appellate Division and we certified the cause before hearing there.

At the trial de novo in the County Court, the defendant contended that the "court" in which he was first convicted was established in violation of Art. III, Par. 1 and Art. VI, Sec. VI, Par. 1 of the New Jersey Constitution, and that therefore his conviction was a nullity. He further argued that the complaint before that "court" was fatally defective because it was not verified by the complaining witness. As to the latter argument, the county judge held that the defendant had waived the defect in the complaint below by seeking a de novo review of his conviction. As to the constitutional objection, the county judge declined to make a decision, holding that he had jurisdiction to hear the cause whether or not the proceedings below were void. He proceeded

to hear the cause de novo, and, as said above, affirmed the conviction but modified it by reducing the amount of the fine.

The defendant contends here, as before the County Court, that his conviction was void for two reasons, (1) that the complaint before the "Marine Navigation Court" was fatally defective because not verified, and therefore could not confer jurisdiction, and (2) that the statute authorizing Frank Walsh, Jr., to sit as a magistrate was unconstitutional, and, therefore, there was no validly created court with jurisdiction of the subject matter. The State argues in reply that the defendant waived his objection to the complaint by his appeal; that the "Marine Navigation Court" is constitutional, but that even if it is not, the County Court had jurisdiction to proceed in the cause, and the defendant's conviction there was valid.

We agree with the county judge that the alleged defect in the complaint brought against the defendant did not affect his jurisdiction of the case on appeal. Proceedings for violations of section 4 of the tidal waters act, N.J.S.A. 12:7-47, are, at least procedurally, quasi-criminal in nature. See N.J.S.A. 12:7-52, N.J.S.A. 12:7-34.28, and Sawran v. Lennon, 19 N.J. 606, at page 612 (1955). See also State v. Yaccarino, 3 N.J. 291 (1949); City of Newark v. Pulverman, 12 N.J. 105 (1953). Appeals from convictions in inferior courts for such violations are therefore governed by R.R. 3:10-10(b). That rule provides that an appeal to the County Court "shall operate as a waiver of all defects in the record, including any defect in, or the absence of any process or charge laid in the complaint." Therefore, the lack of verification of the complaint was a defect waived by the defendant by reason of his appeal to the County Court. State v. Bigley Bros., 53 N.J. Super. 264 (App. Div. 1958).

But the reach of the waiver provision of R.R. 3:10-10(b) extends only to procedural matters. It does not have the effect of curing a lower court's lack of jurisdiction

over the subject matter, which is not conferred by the defendant's waiver or implied consent. See State v. Hunter, 12 N.J. Super. 128 (App. Div. 1951); State v. Baumgartner, 21 N.J. Super. 348 (App. Div. 1952). Cf. State v. Rosenblum, 102 N.J.L. 125 (E. & A. 1925). Jurisdiction over the subject matter is the power of a court to hear and determine cases of the class to which the proceeding in question belongs. It rests solely upon the court's having been granted such power by the Constitution or by valid legislation, and cannot be vested by agreement of the parties. Petersen v. Falzarano, 6 N.J. 447, at page 454 (1951); Abbott v. Beth Israel Cemetery Ass'n of Woodbridge, 13 N.J. 528, at page 537 (1953).

The State argues, however, that it is immaterial whether the "Marine Navigation Court" had jurisdiction to convict the defendant, because the County Court, which heard the case on its merits, had original jurisdiction, and therefore could have heard the case in the first instance. N.J.S.A. 12:7-34.31, N.J.S.A. 12:7-52. Granting the County Court's original jurisdiction of the cause, we are unable to see how it helps the State's argument here. The simple answer is that the County Court's original jurisdiction was never invoked either by the State or the defendant. The complaint was not addressed to it, and the State made no attempt to institute proceedings before it in any other way. The jurisdiction of the County Court was invoked only by way of the defendant's appeal, and thus it heard the cause only in its appellate capacity. Therefore, if by reason of the invalidity of the proceedings brought before it for appellate review the County Court should have set aside the conviction, it is no matter that it might as an original matter have validly convicted the defendant.

The State also argues that any lack of jurisdiction in the "Marine Navigation Court" is cured by R.R. 1:27 D. Paragraph (a) of that rule provides, with exceptions not here pertinent, that "where any court is without jurisdiction ...


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