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:
Passages in italics were indicated by _underscores_.
Small caps were replaced with ALL CAPS.
Errors in punctuations and inconsistent hyphenation were not corrected
unless otherwise noted.