# Harris v. Vanderveer's > Supreme Court of New Jersey · November 15, 1869 · 21 N.J. Eq. 424 URL: https://www.frixlaw.com/law-library/cases/8267353 ## Case - **Full name:** Harris and others, and Vanderveer's - **Court:** Supreme Court of New Jersey - **Decided:** November 15, 1869 - **Citations:** 21 N.J. Eq. 424 - **Precedential status:** Published - **Opinion:** Dissent - **Judges:** Syckel - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8267353 ## Opinion text The Chancellor,, dissenting. The question here is, whether the act of 1869, granting-an appeal from the Prerogative Court, is constitutional-Courts will not declare an act of the legislature unconstitutional, unless it is shown to be so, clearly and free from all reasonable or serious doubt. It is not necessary that it should be expressly prohibited by positive words in the Constitution. Most of the cases in which acts have been declared void, as prohibited by the Federal or State Constitutions, are those in which they were held to be contrary to the intent and object declared, by a fair construction of the instrument. The legislature seldom or never intends to. violate the Constitution, and therefore few cases can arise in-which their action is prohibited by its express words. But, beyond this requirement that the case should be free-from reasonable doubt, courts should have no leaning or intendment either way. The Constitution is the act of the. people of the state. They adopt it directly; it is almost the. only act in the formation or conduct of the government that, they directly perform. By it they determine how much of their natural rights they are willing to surrender, and how much power over themselves they are willing to place in others, to form an efficient government. In proportion to. the rights reserved the nation is free; if. all are surrendered, the government is despotic; and this, whether the power is delegated to one, or to a number. The judiciary is the *449 branch of government to whom it is entrusted to determine whether the legislative branch has exceeded the powers •delegated to it. And there is no reason why it should side with despotism against freedom, with usurpation against the plain reservation of rights and powers to the people themselves, or why it should combine or conspire with a co-ordinate branch for that purpose, when it is the only guard or balance wheel by which such excess can be kept in check. In this case, the people of New Jersey have retained the ■creation and change of the six principal courts to themselves. It is a power not necessary to make the legislature an efficient government, but can be exercised by the people conveniently. It needs no haste; and it is perhaps better that such change cannot bo made to suit the emergency of every cause that may arise. Beyond the requirement that the unconstitutionality should plainly appear, there ought to he no leaning or intendment. There are here two questions : First, whether the Constitution directly authorizes an appeal from the Prerogative Court to the Court of Appeals. If it does, the act of 1869 is valid. But if the Constitution does not authorize it, as there is no prohibition against conferring additional power ■on any court, unless so far as the powers of the other courts are infringed on, the second question will arise, whether this act infringes on the powers of the Prerogative Court. The Constitution divides the powers of government into three distinct departments, the legislative, judicial, and executive. It then declares that: “The judicial power shall be vested in a Court of Errors and Appeals in the last resort 'in all causes, as heretofore; a court for the trial of Impeachments; a Court of Chancery; a Prerogative Court; .a Supreme Court; Circuit Courts; and such inferior courts as now exist, 'and as may be hereafter ordained and established by law; which inferior courts the legislature may alter and abolish as the public good may require.” Before that Constitution, the Court of Appeals had never been authorized to hear appeals from the Prerogative Court, *450 and if the words “ as heretofore,” are to be considered as applying to the jurisdiction, or as qualifying the words “all causes,” to which they are joined, then it is conceded that this court was not by the Constitution empowered to entertain appeals from the Prerogative Court. This is the natural and proper application of these words, as they stand in this sentence; they qualify the extent or universality of the words “ all causes,” and limit them to such causes ■ as were before subject to appeal. These words cannot be rejected because they contradict or limit the preceding words, any more than the words “ of full age,” after the words “ every white male citizen,” in the suffrage clause. In fair and natural construction, such phrase at the end of a sentence may be applied to the whole sentence as well as to the last words ; such construction might, with propriety, be given in the parallel clause in the old Constitution, were it not that it would make the clause untrue. The court had never before been one of the last resort; it had always been subject to an appeal to the king in council. But here such application is impossible; it was not intended, as such reading would imply, to vest the whole judicial power in this court, nor was it so vested “ theretofore-” It could not be applied either to the name or constitution of the court, for both were essentially changed, and were not “ as theretofore.” It could not be transposed so as to come after the words ‘ last resort ’; in part, because it would make the clause assert that the court was of the last resort before then in all cases, which is not true; in part, because this construction is based upon the claim, that this phrase was copied from the old Constitution, and must have the same application as there, to the words “ in the last resort,” yet under that Constitution it never was a court of the last resort, but an appeal from it always existed to the king in council, reserved in Lord Cornbury’s instructions, (L. # 8. 641); but mainly because such arbitrary’'transposition of words for the purpose of giving a desired meaning, is never allowed in any system of interpretation. *451 Transposition of words has been allowed, but only in cases where the intention plainly expressed in other parts of the instrument, requires it to confirm that intention, and then not in such manner as to destroy the plain meaning of any sentence; and it is a mode of interpretation always of doubtful propriety. In the constitutional provision “ that bills for revenue shall originate in the Assembly, but the Senate may propose amendments,” it would never be allowed for any purpose to transpose the words “ Senate and Assembly,” so as to reverse their powers. The promise of the Saviour to the penitent thief, “ I say unto thee this day thou slialt be -with me in Paradise,” may have its meaning changed both as it stands in the original, and in the translation, by a change of punctuation which is admissible, as that is the work of translators or printers. But if had been written “ thou slialt be this day with me in paradise,” a transposition so as to read, “ I this day say unto thee,” could never have been ventured on even by Pope or Ecumenical Council, although necessary to sustain the whole realm of purgatory. Any transposition in this case seems equally unwarrantable. But if it was a case in which transposition was admissible, there is nothing to require it. The other provisions of the instrument show, on the contrary, that this clause was intended to operate as it reads, and thus alone will bo in harmony with its other provisions; the last sentence of the first paragraph of the' 10th Article, directs that these courts should continue, except as therein otherwise provided, with their former powers and jurisdiction. This indicates a general intention that the powers should remain unaltered. The special provision for writs of error from the circuits to this court would be entirely unnecessary, if the words creating this court gave it appellate jurisdiction over all courts, and clearly shows that the only jurisdiction understood to be conferred on this court was in such causes as it before had jurisdiction to hear. The provisions of pi. 5 and 6, in section 2 of Article VI, also show that such was their understanding. *452 The situation and past history of the Prerogative Court renders it probable that that body of lawyers of learning and eminence, the elite of the bar of the state, who formed so large a part of that convention, and were, without doubt, both active and influential in adjusting the arrangement of the courts, meant by this clause what is expressed in it. In England, the proof of wills and granting of administrations, and the business connected with them, and in fact almost all matters now within the jurisdiction of our Prerogative Court, had been, for centuries, entrusted to the ecclesiastical courts. When England separated from the See of Borne, this jurisdiction, by the statute of 23 Henry VIII, was declared to be in the bishop, or ordinary of the diocese, and in cases of goods within two dioceses, in the archbishop. The bishops exercised this jurisdiction by an official, called his Chancellor, and sometimes called the Ordinary; the archbishop, by an official called the judge of the Prerogative Court, a name derived from the fact that jurisdiction in such cases was by the archbishop’s prerogative. An appeal was allowed from the Ordinary to the Prerogative Court, whose sentence was without appeal- But a statute of the next year, 24 Henry VIII, ch. 12, gave an appeal to the king in chancery, which was heard before delegates appointed under the great seal, who were called the Court of Delegates. Some of these, as well as the officials of the bishop and archbishop, were always doctors of the civil law. No appeal ever was given to the law courts, either to the Exchequer Chamber or the House of Lords. Under the proprietary government, their governor entertained this testamentary jurisdiction. This appears by the records in the office of the Secretary of State. Upon the surrender in 1702, the Queen, in the commission to Lord Cornbury, (L. <$f S. 651) gave him full power to erect and establish courts, but in his instructions {L. S. 639) subjected the colony to the ecclesiastical jurisdiction of the Bishop of London, except the collating to benefices, granting licenses for marriages, and the probate of wills, which was reserved to *453 tlie governor for the time being. Until the Eevolution, this power continued in and was exercised by the governor. And although tlie instructions to Oornbury, (A. $ 3. 641), created him and his council the Court of Appeals, no appeal was ever given from the governor’s testamentary proceedings, except the appeal which existed from all the highest colonial courts to the king in council. At the Eevolution, the Constitution of 1776 declared the governor to bo Ordinary and Surrogate-General, and declared that he and the council should be the Court of Appeals in the last resort in all causes of law, "as heretofore.” This had never been construed to give appeals from the Ordinary, and the legislature had never provided for taking such appeals. Until then, either in England or this country, no appeal had ever been given, or been had from the Prerogative or Testamentary Courts to the Courts of Appeal in cases of law or equity. And it is not probable that this body of experienced and conservative lawyers intended to introduce such innovation ; and if they did so intend, it is hardly conceivable that they would have attempted it without expressing it in words that were prominent, and could not bo mistaken, especially that they would do it by words seeming to say that no innovation was intended. Above all, they would not have used the very words that had created the doubt under the old Constitution, and have changed the sentence so as to increase that doubt. They must have known of the doubt and controversy stated in 4 Griff. Heg. 1179; that book was in the hands of all. "What the convention intended, if it was not expressed, should never be allowed to control the meaning of the words they have used; but when it is claimed that they intended something different from what is expressed, facts which show that their intention could not have been other than that expressed, are a full answer to the claim. If this construction is correct, the Constitution did not give this appeal. But as the legislature may confer additional powers on any constitutional court, the act of 1869 is *454 valid, unless it infringes on the power of the Prerogative Court. The first section of the 10th Article provides, that “ the several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction, as if this Constitution had not been adopted.” These words are not to be construed in a strict technical sense, as if it read courts of common law, but must include all courts which administer either testamentary or common law. This but affirms positively the plain implication to be derived from the other provisions regarding the courts named as the judicial power of the state, that the legislature cannot interfere with their existence or diminish their power. The special provision that certain equity powers may be conferred on circuit courts for foreclosure, is another confirmation. The only question then is, does subjecting the Prerogative Court to an appeal, detract from or diminish its powers ? It makes it at once an inferior court; it subjects it to the Court of Appeals, and takes from it the power of making a final decision in any case. The power of determining all causes, or a certain class of causes, without appeal, is the very summit of judicial power. It is the same question, as whether it would detract from the power of a legislature before uncontrolled, to place over it an absolute veto, or whether it diminishes the power of a sovereign, to give a parliament power to reject his edicts. To state the question is to answer it. The convention deemed it necessary to provide for writs of error from circuits, and to prohibit writs of certiorari to Orphans’ Courts, and therefore must have considered the right of appeal as one of those fixed by the Constitution. By the same reasoning that would sustain this law, the Supreme Court or the Court of Chancery, may be made subject to an appeal to the circuit, or one of them to the other. But this whole question has been before decided in this court, and is res adjudicata. In the case of Anthony v. Anthony, 1 Halst. Ch. 627, a direct deliberate decision was *455 made on this very point. It was an appeal from the Prerogative Court to this court, on a matter of dower; the 7th section of the act of 1820, had given such appeal from the Orphans’ Court. That act was still in force; it was repealed by the act of April 16th, 1846, and is No. 149 in the repealing section, (Rev. Stat. 683), which did not take effect until February 1st, 1847. This cause was decided in April Term, 1846; the old Constitution was abolished, and the new one in force. Neither provided for such appeal; it was made in 1843, under the old Constitution. That was not so stringent against it as the new. The Prerogative Court was not positively protected by it as in the new. The dismissal, as appears by the report and by the rule granted to show cause, was on the ground of jurisdiction. The records show that there was no want of prosecution, or other reason for dismissal. The note to the case, whether by Chancellor Halsted or the reporter, shows that such was understood to be the ground of the decision, for it ingeniously suggests a case which might be beyond the reason for such decision. Of the twelve judges who heard the cause, six were members of the constitutional convention held within two years. All the court concurred in the dismissal, except Chancellor Halsted, who declined to vote. The appeal had been taken by a prominent member of the convention, one who would not have deserted his client if he thought the appeal sustainable, any more than lie would have endeavored to sustain it if he thought it clearly unconstitutional; ■ he did not resist the application. The motion was made by another prominent member of the convention, who based it on the want of jurisdiction, and contended that under the new Constitution his case was stronger than under the old. Both counsel had just risen from their labors as revisers of the whole statute law, and one week before this the legislature had passed the dower act of 1820, with the appeal section stricken out by the commission, and it cannot be doubted, stricken out because they thought it unconstitutional. In the case of Hillyer v. Schenck, 2 McCarter 501, a *456 similar appeal was dismissed by this court for want of jurisdiction. And I think, taking the whole case together, that the inference is fair, that the want of jurisdiction was based on the want of constitutional power. If there is authority in judicial decision, these should bind this court on this question. The first was made near the time of the adoption of the Constitution, and by men who were concerned in framing it. And if there is any force -in the maxim contemporánea ezpositio fortissima est, it should be regarded here. ■ The revisers finished their work without provision for such appeals. One part of their duty was to adapt the statute law to the new Constitution. If that gave this appeal, the omission was as gross, though not so mischievous, as to have left the writ of habeas corpus of no avail for want of provision by whom and when it should be granted. Twenty-four successive legislatures have been guilty of the same neglect. Except in a plain case, we should not arrive at a conclusion involving such results, even to perform that pleasant duty of a good judge, ampliare jurisdictionem. The appeal from chancery granted under the old Constitution, may be explained by the fact that this Constitution was not viewed as restricting the legislature. It expressly vested in the legislature, not the legislative power, but the “ government of the province.” That of course included the power of making or changing a Constitution. And the provision which it contained, that each legislator should take an oath not to assent to any law which would annul or repeal three specified sections, implies both power and permission to repeal at pleasure, all other sections. Under this view, the legislature changed entirely the elective franchise, and the very style and name of the government, and many other provisions. Had the Constitution been unalterable, it did not create the Court of Chancery, or recognize its existence at all, much less in such way that the legislature had not power to abolish it, or change its jurisdiction, by adding or taking away. The Prerogative Court was in the same *457 situation. These courts, and in fact any court except the Court of Appeals, were not established or continued by the Constitution of 1776. The provision that the common law and statutes then in force should continue in force, did not continue them. Their existence did not depend on statutes, but the ordinances of the royal governors, which fell with the Revolution. It was found necessary to supply this defect by the act of October 2d, 1776, (Pat. Pev. 38). These courts, whose existence depended on that statute, could of course be changed or abolished by like legislation. This power the legislature freely exercised. The Constitution of 1844 has changed this ; it was intended to change it. So for as the question under consideration is concerned, I am gratified at the result to which the majority have arrived, although I cannot concur in it. The subject matters of the jurisdiction of the Prerogative Court are too important to be submitted to any single judge, without appeal. It is an anomaly in our jurisprudence, and with the elements of both courts as now constituted, there remains nothing of the reason that once existed, for not. giving the appeal to the appellate courts in law and equity cases. The question being whether the appeal should be dismissed, the vote was as follows : For dismissal — Zabriskie, C., Vail. 2. Contra — Beasley, O. J., Belle, Clement, Depute, Kennedy, Ogden, Olden, Scudder, Van Syckel, Wales. 10. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8267353. Public record. Not legal advice.