that action. He not only failed to do so, by merely asking for visitation rights rather than custody, but he failed to raise the issue in his brief on appeal to the Appellate Division.
By reason of New Jersey's "single controversy" doctrine, Falcone v. Middlesex, etc., 47 N.J. 92, 219 A.2d 505 (1966), as well as by established principles of res judicata, Barbier cannot raise the issue by a separate suit, after judgment and pending appeal. The State courts have concurrent jurisdiction with the federal courts over suits brought under 42 U.S.C. Sec. 1983. See, Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976), and especially footnote 17 to the dissent of Mr. Justice Brennan, and Peper v. Princeton, 77 N.J. 55, 389 A.2d 465 (1978).
This analysis shows that the case is one that might well be disposed of by summary judgment for all defendants. To do so, however, would implicate an adjudication on the merits which might in turn deprive Barbier of whatever opportunity he may have to raise and argue the constitutional questions before the Superior Court, Appellate Division, if that Court should be inclined to allow him to do so.
The amended complaint will accordingly be dismissed as to Judge Nitto for failure to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6), and as to all other parties for lack of jurisdiction of the court.
The history of the Court of Chancery and its successor, the Superior Court, is worth noting briefly in this context.
By N.J.Const. 1776, Art. 8, the governor was constituted as the chancellor. By N.J.Const. 1844, Art. 6, sec. 4, par. 1, it was provided that "The Court of Chancery shall consist of a chancellor", and under both provisions the jurisdiction and modes of remedy were the same as those of the Court of Chancery in England, West v. Paige, 9 N.J.Eq. 203 (Ch. 1852). See In re Vice Chancellors, 105 N.J.Eq. 759, 148 A. 570 (Ch. 1930); Pennsylvania R. Co. v. National Docks, etc., 54 N.J.Eq. 647, 35 A. 433 (E. & A.1896). The jurisdiction and powers of the Court of Chancery may not be impaired by the Legislature. Ex parte Hague, 104 N.J.Eq. 31, 144 A. 546 (Ch. 1929), Aff'd, 104 N.J.Eq. 369, 145 A. 618 (E. & A.1929).
The first statute providing for divorce proceedings in the Court of Chancery was the Act of December 2, 1794, Paterson's Laws, p. 143. For the early history, see Wallace v. Wallace, 62 N.J.Eq. 509, 50 A. 788 (Ch. 1901), Rev'd on other grounds, 65 N.J.Eq. 359, 54 A. 433 (E. & A.1903).
At common law, the father was the natural guardian, State v. Stigall, 22 N.J.L. 286 (Sup. 1849), but this right was held to be subject to statutory change more than 100 years ago, Bennet v. Bennet, 13 N.J.Eq. 114 (Ch. 1860). The language of N.J.S.A. 9:2-4 stating that "the father, as such, shall not have preference over the mother" reflects the statutory change to neutralize that common law rule, going back at least to P.L. 1860, p. 437 and P.L. 1871, c. 48, sec. 6 (Rev.1877, p. 319, sec. 27). See, also, English v. English, 32 N.J.Eq. 738 (E. & A.1800), indicating that the view of equal rights in the parents, with welfare of the child the prime consideration, had been established even before the statutory changes.