Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D. Goldmann, S.j.a.d. (dissenting).
This is an appeal from an interlocutory order of the Superior Court, Law Division, striking plaintiff's demand for jury trial in an action in lieu of prerogative writs, R.R. 4:88.
The complaint, in alternative counts, sought to eject defendants, the State Highway Department of New Jersey and its Commissioner, from her lands or to compel condemnation proceedings for the taking of this property. The trial court granted a motion to dismiss the first count on the ground of sovereign immunity.
The second count alleges that plaintiff is entitled to possession of the land described in the complaint; that defendants negotiated with plaintiff for a right of way over her property; that these negotiations were never concluded; that, without notice to the plaintiff, defendants entered upon these premises, constructing a highway, bridge, and other structures; and that defendants have not instituted condemnation proceedings nor paid to plaintiff or into court money representing the fair value of the property as required by applicable statutes. The complaint demands defendants be ordered to institute condemnation proceedings and includes a timely demand for jury trial on all issues.
In their answer, defendants admit that they entered upon part of the land, but deny plaintiff's right to possession of the property in question. They allege that the premises are tidelands, title to which is in the name of the Department of Conservation and Economic Development. Further, they claim that part of the land was conveyed to defendants by plaintiff or her predecessor in title and that part has been in defendants' possession in excess of 20 years, thus barring by estoppel the present action. After filing this answer, defendants moved to strike the demand for jury trial. The motion was granted, and plaintiff was given leave to take this appeal, R.R. 2:2-3(a).
The sole question presented is whether plaintiff is entitled to a trial by jury in a proceeding in lieu of the prerogative writ of mandamus when factual issues are involved. The pertinent rule is R.R. 4:88-2, which provides that:
"Review, hearing and relief heretofore available by prerogative writs * * * shall be afforded by a civil action at law in the Law Division of the Superior Court. Such action shall be tried before a single judge without a jury, except in any case where a jury trial would have been heretofore available * * *." (Emphasis added.)
Consequently, the solution to our problem lies in an understanding of the circumstances under which a jury trial would have been available in mandamus under the practice prior to the adoption of our rules of civil procedure in 1948.
At common law a writ of mandamus was a high prerogative writ directed to any person, corporation or inferior court within the jurisdiction, requiring them to perform some ministerial act pertaining to their office and duty. McKenna v. New Jersey Highway Authority , 19 N.J. 270, 275 (1955); Blackstone's Commentaries (Chase , 4 th ed. 1919), pp. 668-70. The writ was generally issued in the alternative form, giving the party to whom the writ was directed an opportunity to show cause why an unchallengable peremptory writ should not be issued. Cause was shown by filing an answering pleading entitled "the return" -- the object being to give the opposing party a full hearing on the merits. State ex rel. Kelly v. Mayor, etc., of City of Paterson , 35 N.J.L. 196, 199 (Sup. Ct. 1871); Wood, Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari and Quo Warranto (1880), pp. 43 et seq.
If the return was insufficient on its face, it was quashed and a peremptory writ was awarded; if sufficient, the peremptory writ was denied. Kenny v. Hudspeth , 59 N.J.L. 504, 527-528 (E. & A. 1896). The return was taken as conclusive; there was no trial of the issues. Layton v. State , 28 N.J.L. 575, 577 (E. & A. 1860); 35 Am. Jur., Mandamus , § 373, p. 112.
To test the facts of a return, a second action was brought to recover damages for making a false return. Layton v. State, supra , 28 N.J.L. , at p. 577. An action for a false writ was one of the numerous common law actions on the case for damages. Raker v. Bucher , 100 Cal. 214, 219, 34 P. 654, 849 (Sup. Ct. 1893). In an action on the case, as in other civil actions, disputed questions of fact have always been for the jury's determination. 14 C.J.S. Case, Action On , § 11, p. 14. If relator "obtained a final judgment that the [writ] was false," he simultaneously "vindicated his right to a peremptory writ" of mandamus. Kenny v. Hudspeth, supra , 59 N.J.L. , at p. 528.
To simplify this cumbersome procedure requiring two separate actions, England by statute consolidated the proceedings
into a single action, 9 Anne, c. 20, § 2 (1710). Originally applicable only to actions involving municipal offices, the statute was amended by 1 Wm. IV, c. 21, § 3 (1831), which extended this unification of action to all other forms of mandamus. Shortt on Informations, Mandamus and Prohibition (1888), §§ 413, 414, pp. 460-1.
Until 1794, New Jersey followed the common law procedure, as modified by 9 Anne, c. 20, § 2. "On December 2, 1794, a statute was passed in New Jersey extending to all cases the procedure described in 9 Anne, c. 20. (Gen. St., p. 2000)." Kenny v. Hudspeth, supra , 59 N.J.L. , at p. 529. (Emphasis added.) This statute applied to "any writ of mandamus" and states that, after the return of the writ and at the end of the pleadings,
"such further proceedings, and in such manner, shall be had therein, for the determination thereof, as might have been had, if the person or persons, suing such writ, had brought his or their action on the case for a false return; and if any issue shall be joined on such proceedings, the person or persons suing such writ, shall and may try the same in such place, as an issue joined in such action on the case should or might have been tried; and in case a verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication, or other pleading, he or they shall recover his or their damages and costs, in such manner as he or they might have done in such action on the case as aforesaid; * * *." Laws of the State of New Jersey; Revised and Published under the Authority of the Legislature. Trenton: Printed, for the State, by Joseph Justice, pp. 160-1 (1821). (Emphasis added.)
The result was the consolidation of the separate action on the case with the return of the alternative writ in mandamus and, consequently, a jury trial on disputed questions of fact in a mandamus proceeding.
The statute has, from time to time, been amended, e.g., L. 1870, c. 339; L. 1903, c. 195, § 2. It was revised and consolidated in the 1937 Revision of the Laws of New Jersey, R.S. 2:83-1 et seq. R.S. 2:83-7 retained the essence of the 1794 statute and provided that -- after the return and completion of the pleadings -- the proceeding should continue "as
if the relator had brought an action in the nature of an action on the case for a false return."
As we have seen, R.R. 4:88-2 fixes the relevant date for the availability of a jury trial in a mandamus action at the adoption of the rules of civil procedure in 1948. Therefore, it is of no consequence that this statutory grant of trial by jury in a mandamus proceeding was not enacted in the 1951 Revision of Title 2, L. 1951, c. 344. As the late Chief Justice Vanderbilt commented in Bank of Commerce v. Markakos , 22 N.J. 428, 431 (1956), the purpose of the repeal of the original Title 2 was merely to "strip the statute book of all procedural enactments inconsistent with the rules of procedure theretofore promulgated by the Supreme Court * * *."
Our constitution provides that in proceedings in lieu of prerogative writs "review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by the rules of the Supreme Court, as of right." N.J. Const., Art. VI, § 5, par. 4. In affirming its rule-making power under this constitutional provision, the Supreme Court has noted that:
"The regulation of the remedies so provided is the exclusive province of the Supreme Court; the regulative power is not made subject to legislative action. * * * No distinction is made between the substantive jurisdiction to afford the relief theretofore available through the prerogative writs and the mode and manner of the exercise of the power. The whole is within the exclusive jurisdiction of the Supreme Court. * * * Viewing the specific constitutional grant in its historical and contextual setting, we have no doubt that the purpose was to commit this jurisdiction in its entirety to the newly-organized Supreme Court, free of legislative supervision." Fischer v. Township of Bedminster , 5 N.J. 534, 539, 541, 542 (1950).
See State v. Rivers , 16 N.J. Super. 159, 162 (App. Div. 1951). Therefore, the Supreme Court has the power to continue at its own discretion the former right of trial by jury in a proceeding in lieu of the prerogative writ of mandamus -- irrespective of the repeal of the preceding but, since 1948, superseded statutory grant of trial by jury.
In their description of the procedures prior to 1948, the commentators were uniform in their recognition of the availability of jury trial in mandamus cases involving the determination of factual issues. If the return of the alternative writ raised an issue of fact, the Supreme Court in our early cases heard the factual issues with a jury or, under the later practice, sent these issues to be tried at the Circuit Court by a jury. After the Circuit Court trial, a postea -- a formal statement of the trial proceedings -- was customarily prepared and signed by the trial judge. The Supreme Court then entered judgment in accordance with the jury's verdict or, when the case had been sent to the Circuit Court, with the court's postea. 1 Bradner, New Jersey Law Practice (1940), § 627, pp. 583-4; Harris, Pleading and Practice in N.J. (rev. ed. 1939), § 720, pp. 729-30; Sheen, N.J. Law Practice (2 d ed. 1931), vol. I, § 912, p. 673; ibid. vol. II, p. 1090.
That jury trial was available in mandamus proceedings prior to 1948 is demonstrated not only by R.S. 2:83-7 and the commentators but also by a further examination of our reported cases. In State v. Holliday , 8 N.J.L. 265 (Sup. Ct. 1826), the court noted that, where the return to a mandamus produced an issue of fact, the case "is placed in the regular mode of trial." (at p. 267) The factual issue in the mandamus action in Ferguson ads. State , 31 N.J.L. 283 (Sup. Ct. 1865), "was submitted to a jury." (at p. 285) The court in Jones Co. v. Guttenberg , 66 N.J.L. 659 (E. & A. 1901), sent the factual issues raised by the mandamus action to the Circuit Court for trial by a jury. (at p. 665)
See Finger v. Doane , 98 N.J.L. 635, 637 (Sup. Ct. 1923); Harrison R. Van Duyne, Inc. v. Senior , 105 N.J.L. 257 (E. & A. 1928), "* * * such issues were directed to be, and were, tried before a jury at Circuit and a postea showing such findings [had] been filed"; Freeland v. Sargeant , 6 N.J. Misc. 906, 143 A. 73 (Sup. Ct. 1928); Freda v. Societa Di Mutuo Succorso Concordia of Jersey City , 106 N.J.L. 17, 19 (Sup. Ct. 1930), "if the issue be one of fact, as in the present case, it goes to the circuit for a jury trial like any
other fact case"; Wenk v. Polish Ladies' Circle , 13 N.J. Misc. 596, 597, 180 A. 229 (Sup. Ct. 1935); Phelps v. Fort Lee , 15 N.J. Misc. 511, 192 A. 581 (Sup. Ct. 1937); Abbott v. Sterner , 124 N.J.L. 49, 50 (Sup. Ct. 1940). In Sagarese v. Holland , 116 N.J.L. 137, 140 (E. & A. 1936), Chancellor Campbell, writing on behalf of the court, said:
"In causes of this character, the facts are to be settled by a jury in a trial at nisi prius under the direction of the Supreme Court justice or, under the present day practice, of a circuit court judge, sitting in his place, and the sole jurisdiction and function of such justice or judge is to make return to the Supreme Court, by postea , of the facts as found by the jury; the settlement of all legal questions residing in the Supreme Court."
In Haycock v. Jannarone , 99 N.J.L. 183 (E. & A. 1923), the factual situation was similar to the instant case. In Haycock a suit was brought to eject the state highway commission as a trespasser from the plaintiff's land. Rejecting the suit on the basis of sovereign immunity, the court commented that the highway commission "can be required by mandamus to take proper proceedings to condemn the land, and in such proceedings the question whether there has been any encroachment can be settled by a jury on a proper issue framed." (at p. 185).
Some of the cases state that the "normal," Freeland v. Sargeant, supra , 6 N.J. Misc. , at p. 906, 143 A. , at p. 73, or "better," Abbott v. Sterner, supra , 124 N.J.L. , at p. 50, practice calls for a jury trial, and they do not expressly state that there is a right to trial by jury in cases such as this. However, this seemingly equivocal language is only a recognition that in many instances a jury may have been waived or simply not requested. Research has failed to produce a single case involving a contested issue of fact in a mandamus proceeding in which a jury was actually denied or even a suggestion made that the possibility of such a denial existed under our statute and case law.
Defendants seek to avoid the preceding statutes and authorities by maintaining that R.R. 4:88-2 only grants a jury trial
under those circumstances where the party had a constitutional right to trial by jury in 1948. In support of their position, defendants rely upon the statement of the Tentative Draft ...