(N. J. Supreme Court, Dec. 10, 1921).
Certiorari--Railroad Land Acquired by Park Commission by Condemnation--Disuse of Land by Railroad.
New York and Greenwood Lake Railway Co., a Corporation, and Erie Railroad Co., a Corporation, Prosecutors, against Essex County Park Commission. Application for writ of certiorari before Hon. William S. Gummere, Chief Justice.
Messrs. Parker, Emery & Van Riper (by Mr. John M. Emery) for Prosecutors.
Mr. Alonzo Church for Respondent.
GUMMERE, C. J. (orally): As I understand the situation with relation to the law and the facts, it is this:
The Park Commission, having been created by the Legislature for the purposes specified in the Act under which it was organized, conceived the idea of acquiring land to be devoted to the uses of a park up in Verona, and that was done, of course, under a form of resolution, and I assume, unless I am corrected, that the land to be embraced in the park was described, in a general way at least, in the resolution. Having taken that step they started in to acquire the land to be embraced in theproposed park, and in carrying out that purpose they approached this railroad company for the purpose of buying from them, for the purposes of a park, this particular piece of land, but they were unable to make any arrangement with the company with relation to its purchase and sale. I say that from my recollection of the provisions in the petition which was submitted to me, and the accompanying affidavits.
The railroad company at that time, and that was prior to the first of November, knew that this Park Commission proposed to acquire a tract of land, of which this particular piece was an integral part, for the purposes of public recreation, not only for the citizens of Verona and neighborhood, not only for the citizens of the county of Essex, but for all the citizens of the State who desired to enjoy that public benefit. Now, the Park Commission either had or had not the right to acquire this land in invitum, that is, against the will of the railroad company and by the exercise of the power of eminent domain given to them by the State itself, and so if they had desired to do so (and when I say "they" I mean the railroad company), they could have ascertained just what the steps were that had been taken by the Park Commission antecedent to the negotiations for the purchase of this land. They would have ascertained that this resolution had been passed and that this particular piece of land was only a part, perhaps a small part of the whole territory which was to be acquired and devoted as a unit to park purposes, but they did not do it. They sat still until they received notice that an application had been made to the presiding Justice here for the appointment of commissioners to condemn that piece of land, and a representative of the railroad company appeared here in response to that notice.
Of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the Judge in a matter of that kind sits as a mere legislative agent. But, after the Court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that I have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, I suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. Counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and I suppose to see what the award would be. I don't know whether they offered testimony or not as to the value of the land. That has not been spoken of.
Mr. Church: They did offer testimony.
The Court: With the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money.
Now the question is whether in that situation this railroad company is in a position to ask relief from a Judge of the Supreme Court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the Court. I am not speaking about the question of laches, but, in determining whether this writ ought to issue, I must take into consideration all of the circumstances. It appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of Essex expend a large amountof money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out.
So, I would be inclined to say that, in view of that situation, in the exercise of a proper discretion, I ought to tell the railroad company that I cannot see my way clear to allow this writ; that it would be greatly injurious to the people of Essex county and the people of the State, even, and would produce that injury, although the people and their representative, the Park Commission, are in no way responsible for it.
Then there is another reason why I think this writ ought not to be allowed.
This railroad company received from the State of New Jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. That grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this State backward and forward across it for the compensation which the Legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. They have acquired the land. They have not attempted, and so far as I know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. They are holding it out of the general property of the State, and by doing so prohibiting its use for the benefit of the State, or any of its citizens, or anybody else. In other words, it is not land that is being held by this company for railroad use. It has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted.
Now, in that situation, the State comes along and through its agent, the Essex County Park Commission (for that Commission is a State agent) says: 'We need this land for public use. You have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the State and of the people of that part of the State located within the borders of the County of Essex,' and I am inclined to think that this was the situation contemplated by the Legislature which induced the reservation in the Act of 1921 that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. And so, I think, for this reason also this application should be denied.
ABSTRACTS OF RECENT PUBLIC UTILITY DECISIONS.
In re West Shore & Seashore R. R. Co.--Application to discontinue maintaining an agent at Forest Grove, as revenues do not warrant expense of the agency; the place to be put under the supervision of the agent atMinetola, who would keep the station open, lighted, etc. The Board permitted the discontinuance, adding that "if future conditions change to the extent of warranting the re-establishment of an agent, the matter will be given further consideration." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Joseph Little and Mr. Charles H. Lincoln for Protestants.
Another application was made at the same time by the same Company for the discontinuance of the agent at Buena. The Board said: "While the reasonableness of the Company's desire to reduce operating expenses is recognized, the discontinuance of the agent would undoubtedly result in inconveniencing shippers and receivers of freight and express to an extent that would not be justified considering the volume of business. The necessity for the presence of an agent or clerk for a portion of the day is manifest, and arrangement should be made to have a representative at the station from 8 A. M. until 1.30 P. M. daily, excepting Sundays: also that the station be kept open during the hours it is at present open for the convenience of passengers. If the Company will arrange to have a representative at the station for the transaction of necessary business from 8 A. M. until 1.30 P. M., and keep the station open covering hours now in effect, the Board will approve such an arrangement in lieu of agency now effective." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Charles Wray for Protestants.
In re Pennsylvania R. R.--Application to discontinue an agent at Allaire. Permit granted. Report dated Nov. 4, 1921. Mr. W. Holt Apgar for Petitioner.
In re City of Newark.--Application for a change in the colorific standard of gas. The Board was about to investigate the rates charged for gas by the Public Service Gas Co., when the City of Newark gave notice of a demand for an increase in the standard. "There was thus," said the Board, "injected into the proceeding a question which had to be decided before the Board's investigation into the rates could proceed, it being impossible to fix a price for gas until the Board should fix the standard for gas under Newark's petition. The rule fixing the standard for gas being applicable to all gas companies in the State, general notice of hearing was given, and the gas companies were represented." Testimony was begun in August last, and the general purport appears in the Report. The Board said: "It does not appear that the gas supplied by the Public Service Gas Company compares favorably with that furnished by other companies, which, confronted by the rule [IX of the standard adopted by the former Utility Board] alone, have applied it in accordance with its apparent literal significance. The rule, however, should be free from any misunderstanding as to its meaning. As the Public Service Gas Company supplies the greater part of the gas consumed in the State, and to now require it to change its interpretation of the rule might result in undesirable complications in the rate proceeding being conducted by the Board without corresponding advantage to its customers, it is deemed inadvisable to insist upon such change. In order, however, that there may not be a continued apparent conflict between the rule as wordedand the practice of the Company, the Board will change the wording of the rule so that there will be no doubt if gas is supplied with a minimum daily average of 525 B. t. u. it will be in compliance therewith." Report dated Nov. 4, 1921. Messrs. E. W. Wakelee, E. A. Armstrong and G. H. Blake for Public Service Gas Company. Mr. Jerome T. Congleton and Mr. J. G. Wolber for the City of Newark. Mr. George L. Record for City of Jersey City. Mr. Benjamin Natal for City of Camden. Mr. William A. Kavanagh for City of Hoboken. Mr. Joseph T. Hague for City of Elizabeth. Mr. A. O. Miller for City of Passaic. Mr. William P. Hurley for Town of Nutley. Mr. Welcome W. Bender for Chamber of Commerce of Elizabeth. Mr. F. R. Cutcheon for Consolidated Gas Company. Mr. S. J. Franklin for Cumberland County Gas Company. Mr. H. S. Schutt for Atlantic City Gas Company. Mr. William Wherry, Jr. for New Jersey Gas Association. Dr. W. G. Hanrahan for Rent Payers' Association of Essex County and Federation Improvement Associations. Mr. James W. Howard on his own behalf.
In re Blackwood Water Co.--Application for increase in rates. The Board required, first, that changes must be made in the system so as to provide for continuous operation of the filter plant, additional power to operate the pumping machinery, etc., six different improvements in all. Doing this the Company could make certain increases in rates beginning Jan. 1, 1922. Report dated Nov. 9, 1921. Mr. Lewis Starr for Petitioner. Mr. Samuel P. Hagerman for Township of Gloucester.
SOME INTERESTING OUT-OF-STATE DECISIONS.
State Prohibition Laws And Eighteenth Amendment.
In the habeas corpus proceeding of Jones v. Hicks, decided by the Georgia Supreme Court and reported in 104 Southeastern Reporter, 771, portions of the statement of facts and opinion of the Court by Judge Gilbert are as follows:
"Jones was arrested under a bench warrant issued by the Judge of the city court of Macon, based upon an accusation charging him with violating the prohibition law of this State on January 21, 1920. He filed a petition for the writ of habeas corpus, based upon the ground that the Eighteenth Amendment to the Constitution of the United States, which was ratified on January 16, 1920, and the 'National Prohibition Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated all State laws on the subject covered by said Eighteenth Amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid State law in existence. The court refused to release the petitioner, and that judgment is excepted to....
"The second section of the amendment as proposed to the States and ratified, provides that 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.'
"Three views as to the proper construction of the second section have been generally discussed: (1) That concurrent power means joint power; (2) That the power is given to each, the legislation of either Congressor the States being of equal force with the other; and (3) that the power is in each, but that the legislation of Congress, as the supreme law of the land, will supersede any inconsistent State legislation....
"The Supreme Court of the United States having adversely disposed of the contention that 'concurrent power' means joint power [State of Rhode Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be considered. Similar, but not identical, questions have been discussed heretofore by Courts of several States and by the Supreme Court of the United States. None of these involved construction of delegated powers to be exercised concurrently. They are cited here for comparison, and not as controlling....
"The sphere in which the Congress, under the Eighteenth Amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' From a consideration of the question as above presented, we reject the view that the legislation of Congress will supersede and abrogate the laws of the State which are appropriate for the enforcement of the amendment. We conclude that the power of Congress and of the State is equal and may be exercised by the several States for the purpose of enforcement concurrently within their legitimate constitutional spheres. Ex parte Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section."
Killing Cows By Automobile.
An automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. The animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. The machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of 57 feet. The driver admitted he was going "about" 25 miles an hour; and the Court comments: "The result of the catastrophe indicate rather strongly that he underestimated his speed."
The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. The Court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "The parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another.
The fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively."
MISCELLANY
PUBLIC SERVICE LOSES JITNEY SUIT
On Dec. 2 the Court of Errors and Appeals, by a tie vote, 7 to 7, practically affirmed the decision of Vice-Chancellor Griffin in denying an injunction to the Public Service Railway Co. to prevent operation of jitneys on the public highways. The affirmative votes were by Justices Black, Kalisch, Parker, Swayze and Trenchard, and Judges White and Van Buskirk; the negative by Chief Justice Gummere, Justices Bergen, Katzenbach and Minturn, and Judges Williams, Gardner and Heppenheimer. Justice Minturn wrote an opinion for the negative view.
The essential points relied upon by counsel for the railway company in support of the application for an injunction against the jitney owners were that none of the defendants had applied for and obtained consent for the use of the streets and highways on which they operated, as required by the Limited Franchise Act of 1906; that none of the defendants filed with the chief fiscal officer of the city in which they operate a policy of insurance, as required by the Kates Jitney Act of 1916; that Barnett, though filing a policy of insurance in Newark, filed only a copy of the policy in Elizabeth; that Banker filed a policy in New Brunswick, but none in South Amboy; that the Public Service Railway in the enjoyment of a legal franchise is entitled to an injunction against the alleged illegal competition on the part of jitneys, and that the Public Service is entitled to protection of its franchises and business by injunction under decisions of the New Jersey court.
Merritt Lane, counsel for the jitney owners, questioned the jurisdiction of the Court of Chancery to grant the injunction, contending that the rights of the Public Service are not of such a nature as to justify it in seeking relief in any Court, and argued that the franchise of the company was not to transport passengers for hire and reward but to lay and maintain rails in public streets and to operate cars thereon. Mr. Lane also submitted that to grant the injunction would create a result manifestly opposed to public policy and would result to the disadvantage of the public. He submitted that the Company was not in a position adequately to handle the traffic and that if the jitney were eliminated hundreds of thousands of persons would be obliged to walk or stand while riding.
HUNTING BY FOREIGNERS.
The County Clerk of Sussex, Mr. Harvey S. Hopkins, has appropriately called the attention of municipal clerks in that county to their neglect of duty under the hunting and fishing license law. Doubtless the same neglect has resulted in other counties. In sending out the supply of 1922 licenses Mr. Hopkins wrote:
"In every monthly report compiled by this office I can see instances where resident hunting licenses have been improperly issued to foreigners who have not yet acquired their final naturalization papers. This is both unjust and unlawful and sooner or later some issuing clerk will encounter serious trouble through his laxity in this matter. Unless you have personalknowledge respecting the applicant, there is but one safe procedure: Compel him to produce his certificate of final naturalization. His first papers, or declaration of intention are not sufficient."
Mr. Hopkins also called the attention of the municipal clerks to the change in the fish and game laws which no longer exempt women from the necessity for procuring a license. Formerly women were not required to have licenses to fish, although they had to get them to hunt. Now they have to have licenses for both, as per Chapter 112, Laws of 1921.
HONOR TO MR. GASKILL.
Mr. Nelson B. Gaskill, formerly Assistant Attorney-General of New Jersey, and now a member of the Federal Trade Commission, has been elected chairman of that body. He is the second Jerseyman to enjoy that honor, the late J. Franklin Fort, former Governor, having been chairman several years ago.
Mr. Gaskill is a son of former Judge Joseph H. Gaskill of Burlington County, was for many years connected with the New Jersey National Guard and during the late War held the rank of Lieutenant-Colonel in the Judge Advocate-General's Department. He was appointed to the Federal Trade Commission by the then President Wilson.
JERSEY LAW SCHOOL ALUMNI.
The New Jersey Law School Alumni Association has completed its organization. The officers elected are: Judge Clyde D. Souter, President; John A. Ammerman, first Vice President; Miss Irene Rutherford O'Crowley, Second Vice President; John A. Matthews, Third Vice President; Miss Helen Oppenheimer, Secretary; Raymond Foster Davis, Treasurer.
At the dinner in the Berwick Hotel, Newark, more than 100 lawyers in this State, all graduated from the school, attended. Richard D. Currier, President of the law school, told the guests of the advantages gained by promoting good fellowship in the form of an alumni association.
HUMOR OF THE LAW.
A certain lawyer was asked by an acquaintance how it was that lawyers contrived to remain on such friendly terms with each other, although they were famed for their cutting remarks.
The lawyer looked at him with a twinkle in his eye, and remarked:
"Yes, but they're like scissors; they only cut what comes between."--Japan Advertiser.
His Honor: "Get the prisoner's name, so we can tell his mother." Rookie: "He sez his mither knows his name."--Vaudeville News.
"Prisoner at the bar," said the judge, "will you have trial by judge or jury?"
"By jury, your honor," said the defendant. "I'll take no chance on you!"
"What!" roared the court. "Do you mean to say that I would--"
"I don't mean t' say nothing," said the prisoner, stoutly, "but I ain't taking no chances. I done some plumbin' work for you last winter!"--Richmond Times-Dispatch.
There recently died in Illinois an aged farmer, reputed to be wealthy. After his death, however, it was discovered he left nothing. And his will ran like this:
"In the name of God, amen. There's only one thing I have. I leave the earth. My relatives have always wanted it. Now they can have it."
Mr. Hardfax: "So your son left us to go into a bank in the city? How did he acquit himself?"
Mr. Timbertop: "He didn't acquit himself. It took the best lawyer in the county to get him acquitted."--Boston Globe.
THE LEGISLATURE.
The 146th session of the New Jersey Legislature opened at Trenton on January 10. The Senate consisted of 16 Republicans and 5 Democrats; the Assembly of 45 Republicans and 15 Democrats.
There are two women in the Legislature, Mrs. Catherine Brown, Democrat, of Hudson county, and Mrs. Margaret B. Laird, Republican, who was reëlected from Essex county.
Senator William B. Mackay, of Bergen county was elected President of the Senate; and Assemblyman T. Harry Rowland, of Camden, Speaker of the House of Assembly.
GOVERNOR'S APPOINTMENTS.
Among the recent appointments by Governor Edwards the following will prove of special interest to the Bar:
Justice James F. Minturn, of Hoboken, of the Supreme Court, reappointed.
Justice Charles C. Black, of Jersey City, of the Supreme Court, reappointed.
Judge Walter P. Gardner, Jr., of Jersey City, member of the Court of Errors and Appeals.
Mr. Samuel M. Shay, of Merchantville, Common Pleas Judge of Camden county in place of Judge John B. Kates.
Judge William H. Speer, of Jersey City, Circuit Court Judge, reappointed.
Mr. Willis T. Porch, of Pitman, Prosecutor of the Pleas of Gloucester county, to succeed Oscar B. Bedrow.
Mr. John O. Bigelow, of Newark, for Prosecutor of the Pleas.
Mr. John Enright, of Freehold, for Commissioner of Education.
SOME STATE NOTES.
On Jan. 5 former Judge Maja Leon Berry, solicitor of the Ocean County Board of Freeholders, entertained that body, the county officials and newspaper men at a dinner at the Ocean House. The occasion was the host's forty-fifth birthday and he has followed this custom of entertaining the officials for the past twelve years.
Mr. James R. Nugent, of Newark, was nominated on January 16 by the Governor for Prosecutor of the Pleas of Essex county, but, a week later, was refused confirmation by the Senate, by a vote of 17 to 3.
Mr. William E. Holmwood, of Newark, has removed his law office to 43 Washington street.
Mr. J. Victor D'Aloia, of Newark, has gone to Europe for a stay of about two months, so as to visit his parents in Italy.
A testimonial dinner was given to Judge Rulif V. Lawrence, of Freehold, at the Hotel Belmont at that place, on January 2, and he was presented with the gift of a gold watch.
The Monmouth Co. Bar Association held its annual meeting at Freehold on January 3 and reëlected its President, Halstead H. Wainwright, of Manasquan.
The Union Co. Bar Associationheld its annual meeting at Elizabeth on January 3 and elected as its President Mr. Clark McK. Whittemore. It decided to ask the Legislature to increase the jurisdiction of the District Courts.
State Senator Thomas Brown, of Perth Amboy, was appointed counsel for the Public Utilities Commission on January 3, to succeed Mr. L. Edward Herrmann, although the latter is still retained by the Commission as special counsel in the prosecution of the Public Service rate case before the United States Supreme Court. Senator Brown has practiced law at Perth Amboy since 1907.
OBITUARIES.
Mr. George W. Jenkins.
Mr. George Walker Jenkins, one of the best known lawyers of Morristown in former years, afterward as active in corporation matters in New York City, died in Memorial Hospital, New York City, on January 19, 1922. He had been out of health for some months, but went to the Hospital only a few days before his death.
Mr. Jenkins was born November 7, 1848, at Catasauqua, Pa., his parents being George and Hannah (Morgan) Jenkins, who were Welsh people and born in Wales. After the usual early education he entered Yale College, from which he was graduated in 1870. He studied law with Messrs. Parker & Keasbey, in Newark, and was admitted to the New Jersey Bar at the November Term, 1873, and became counselor at the February Term, 1880. He began practice at Boonton, but later went to Morristown, where he soon became one of the most active lawyers of the place. He had ability, assiduity and exactness in office matters, being so exact in fact that he became one of the most popular Special Masters of the Court of Chancery to whom other members of the Bar referred their cases whenever practicable. Taking early to politics he was soon prominent in the Republican party, and was elected and served as a Member of the Assembly during the years 1883, 1884 and 1885. He was also counsel to the Board of Chosen Freeholders, and at one time served as Journal Clerk of the New Jersey Senate. In 1886 he ran for State Senator for Morris county, but was defeated by George T. Werts, who afterward became Governor.
About twenty-five years ago Mr. Jenkins, while not removing from Morristown, went to New York City, and was engaged from then until recently, when his health became impaired, in carrying on legal business connected with various extensive corporation enterprises. He was Vice-President and director of the Bridgeport (Conn.) Gun Implement Co. and Remington Arms Co., director of the M. Hartley Co., Treasurer and director of the Union Metallic Cartridge Co., Trustee of the Washington Trust Co., etc., in all of which his legal knowledge was used with skill and real ability. He owned a large and handsome residence in Morristown, and also the Silver Lake Farms at Green Village. He was a member of the Morristown Club, Morris County Golf Club and the University, Yale and Union League Clubs of New York City.
Mr. Jenkins married Miss Helen Hartley, daughter of Marcellus Hartley, of New York City, who, with one daughter and two grandchildren, survive him. His eldest daughter, Mrs. Frances Greer, of New York City, died about two years since; the surviving daughteris Mrs. Winter Mead, of Sand Beach, Conn. He is also survived by a sister, Mrs. A. L. Dennis, of Plainfield, and by nieces. The interment was at Boonton.
Mr. James A. Gordon.
Mr. James A. Gordon, an active practicing lawyer at Jersey City, died suddenly at his home, 638 Pavonia avenue, on January 11. Complaining that he felt ill, Mr. Gordon left his office the day previous, but his illness gave no indication that death was near.
Mr. Gordon was the son of John A. and Isabella (Leslie) Gordon, and was born in the city of Bergen (now Jersey City), October 7, 1860. He was graduated from the Jersey City High School in 1881; read law with Mr. John Linn and Linn & Babbitt, and was admitted as a New Jersey attorney at the June Term, 1885, and as counselor at the June Term, 1888. He soon became one of the ablest of the younger members of the Hudson Bar. His office was at 586 Newark avenue, Jersey City, at the time of his death. He was unmarried and made his home with a sister, Miss Isabelle Leslie Gordon, who, with a brother, William Stewart Gordon, survives him. He belonged to the Bergen Lodge, F. and A. M., and the Hudson Bar Association.
Mr. Robert I. Hopper.
Mr. Robert Imlay Hopper, of Paterson, long a prominent attorney of that city, died on January 24th after a few days illness from a general breakdown.
Mr. Hopper was the son of the late Judge John Hopper and Mary A. (Imlay) Hopper, of Paterson, and was born in that city May 28, 1845. After a public school education he entered Rutgers College, being graduated there in 1866. He studied law with his father and became a New Jersey attorney at the June Term, 1869, and a counselor three years later. For many years father and son were associated in practice in Paterson, being severed only because the father was elevated to the Bench. In 1878 he was chosen counsel to the Passaic Board of Chosen Freeholders and served as such for ten years. He was also secretary to the Paterson & Hudson River Railroad (now part of the Erie R. R.), holding that office at the time of his death. He was active in the National Guard of New Jersey, having been Major and Judge Advocate, and was prominent in Masonic circles and in various clubs. His wife, who was Miss Ida E. Hughes, died April 24, 1878. One daughter, Ida, survives.
VAN NESS ACT OVERTHROWN.
On February 2 the Court of Errors and Appeals of this State declared the Van Ness Prohibition Enforcement Act unconstitutional. This decision reverses the Supreme Court in the three test cases involving the constitutionality of the Enforcement Act and sets aside the opinion written in the lower Court by Mr. Justice Minturn, presumably concurred in by Justices Trenchard and Bergen, who heard the argument below. Had they sat in the full Court there would have been so close a division that the Court would have stood, as we see it, almost even.
The news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. The newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the Act was overthrown. Says one newspaper:
"On the question of a jury trial, the Justices found that the denial of it was proper, six votes to five. That the Act was not unconstitutional in describing as a misdemeanor what the Federal Volstead Act describes as a crime, the Court agrees six to six, which upholds the Act. On the two questions of whether the Act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the Court upholds it nine to two. In other words, each one of these features is in itself constitutional. But there are eight Justices who disagree with it on one point or another and only four who found nothing to disagree with. Therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. In other words, the Act will not stand as it is."
Chancellor Walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the Act was defective. Among other things he said:
"It is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. No one can be put upon trial before a traverse jury in New Jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)."
Chief Justice Gummere's opinion was concurred in by Justice Swayze and Judges Gardner, Ackerson and Van Buskirk. It approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the Eighteenth Amendment, the State had to surrender part of its police power to the Federal Government, and therefore was bound to legislate in conformity with the Volstead Act, which, passed under authority of the Federal Constitution, becomes the supreme law of the land.
Justice Kalisch held that the supreme law of the land, embodied in the Volstead Act, having made certain offenses a crime, it was not within the power of the State to classify them as petty offenders.
Consideration was given by Judge White to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. As to the first objection, that relating to the right of trial by jury, Judge White said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed.
"The offense must be a petty and trivial violation of regulations established under the police power of the State in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." It must, of course, Judge White said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the State Constitution which prohibits cruel and unusual punishment.
Transcriber Notes:Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted.On page 38, a single quote was added after "and no longer"On page 48, "increditable" was replaced with "incredible".On page 48, "canot" was replaced with "cannot".On page 52, "execuetd" was replaced with "executed".On page 58, "nighttime" was replaced with "night-time".On page 60, a dash was added before "Japan Advertiser".On page 64, "qustions" was replaced with "questions".
Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted.
On page 38, a single quote was added after "and no longer"
On page 48, "increditable" was replaced with "incredible".
On page 48, "canot" was replaced with "cannot".
On page 52, "execuetd" was replaced with "executed".
On page 58, "nighttime" was replaced with "night-time".
On page 60, a dash was added before "Japan Advertiser".
On page 64, "qustions" was replaced with "questions".