In re Margarum

The opinion of the court was delivered by Beasley, Chief Justice.

The litigation in this case relates to an election that was held recently in the township •of Wantage, in the county of Sussex, and it has been referred to this court for its advisory opinion.

The legal procedure referred to was founded on the fifty-second section of the act approved May 28th, 1890, entitled “A further supplement to an act entitled ‘An act to regulate ■elections/ approved April eighteenth, one thousand eight hundred and seventy-six.” The course of law there presented is, in general effect, this, viz., that whenever, within twenty days next succeeding any election in any election district or voting precinct in any county of tliis state, a petition signed by a certain number of legal voters, containing allegations and statements, verified by affidavits showing certain specified frauds or irregularities at such election, shall be. presented ■“to the justice of the Supreme Court holding the Circuit Court in and for said county, it shall be the duty of such justice, in a summary way, to investigate the truth of the ■statements and allegations in such petition contained, and to that end and for that purpose it shall be the duty of such justice to appoint a time and place within said county, not later than ten days thereafter, when and where he will proceed to hear and determine said matter, of which time and place so appointed the petitioners shall cause at least six days’ notice to be given to all such persons as said justice shall direct; at such time and plaee so appointed said justice shall proceed, in a summary manner, to hear and determine said matter, unless it be adjourned for good cause shown.” Then follows the further direction that if the allegations of the petition are not sustained it shall be dismissed, but that if they are sustained, “it shall be the duty of the justice to make an order setting aside or nullifying said election,” &c., “and such order shall be filed in the office of the county clerk.”

*15 It will be at once perceived, from this summary of this statutory clause, that the judge who is to determine the prescribed contest is not empowered for that purpose to sit in, or •under the authority of, any court. The reference to him as “the justice of the Supreme Court holding the Circuit Court in and for said county,” is a mere designatio 'personae. The expression evidently confers upon the official no authority, ■except such as is expressly prescribed, which is that he shall ■entertain the complaint in the capacity of a commissioner •acting under and absolutely by the force of a statutory authorization. He is to determine the matter and make an order •dismissing the petition or setting aside the election, and which •order is to be filed with the clerk of the county. This is the •entire scope and extent of the power expressly conferred, and it would not seem that, in such an affair, a justice of the •Supreme Court has inherent in his office any ability that would materially subserve this statutory endowment. It is ■true that, as such justice, he is possessed of the statutory ■authority to take voluntary oaths and affidavits, but he could <not compel the attendance of witnesses, nor could he punish ■their recusancy if they should refuse to be sworn. In the ¡present inquiry it is not pertinent to consider the serious question whether this entire provision relating to this method of •determining the legality of these elections, is not so imperfect and incomplete with respect to the power conferred upon the judicial officer who is to decide the controversy, as to render the provision itself wholly nugatory, all our immediate concern being to emphasize the fact that such justice in executing ■the function in question does not sit in curia.

This being the status of the litigation the question necessarily is presented, How can this court take cognizance of it in that form of proceeding? The justice having the case ■under the statute before him has sent it to us for our advisory opinion. Whence does the Supreme Court obtain jurisdiction in such an inquiry ? Most plainly it cannot be claimed that ■it is possessed of it by virtue of the two hundred and forty-seventh section of the Practice act, for that provision relates *16 exclusively to cases pending in the county Circuit Courts; nor is there the faintest trace of such a power to be discovered in any of the prerogatives of the court regarded as' a common law tribunal. If the present procedure can be certified to this court for its advisory opinion, so can any of the numerous procedures required by various statutes to be transacted by the respective members of this court. But such certification is not only unknown to the law, but it is, from its intrinsic nature, highly objectionable. When a case is certified from the Circuit to this court by force of the Practice act, the formal advice of this court has the force of a judgment in its conclusiveness; the circuit judge is required to enforce it and error may be assigned upon it; but if, in such instances as the present, this court should render the advice sought for, its conclusions would be devoid of all peremptory authority, for it would be entirely competent for the officer to whom they were sent to disregard them, and in despite of them to carry his own convictions into effect. It is deemed that it would not comport with the dignity of this high tribunal t,o pronounce decisions, in solemn form and after full consideration, that would be entitled to no force beyond that of argument or persuasion. And, in addition to this objection, there is another which, perhaps, is equally serious. By the constitution of this state a justice of this court who has expressed an opinion on any subject in litigation cannot sit in the Court of Errors when such subject is there on review. So that the consequence would be, if we comply with the present solicitation, that each member of this court participating in the transaction, would abdicate measureably that appellate power which, on considerations of the public interest, has been vested in him. The consequence is that the court must decline to render the assistance that has been requested.

It is proper to remark that, at the last term of this court, an advisory opinion was given in one of these cases by one of the justices of this court, but the question of jurisdiction was not mooted nor considered on that occasion, so that this court does not feel itself bound by such judicial action.