
    EMILY STIER v. PETER KOSTER.
    Submitted December 8, 1900
    Decided February 25, 1901.
    1. The “Act concerning District Courts” (Pamph. L. 1898, p. 556) is not void because section 206 of the act by which an appeal on matter of law only was given to the Circuit Court has been judicially declared to be unconstitutional.
    2. Practice upon certiorari in such cases indicated.
    On certiorari.
    
    Before Justices Garrison and Garretson.
    For the prosecutor, J. Emil Walscheid.
    
    For the defendant, Weller & Lichtenstein.
    
   The opinion of the court was delivered by

Garrison, J.

The jurisdiction of the District Court of the city of Hoboken to hear this cause is challenged upon the record contained in the return to this writ. The contention is that the decision of the Court of Errors and Appeals, in the ease of Green v. Heritage, 35 Vroom 567. to the effect that the appeal to the Circuit Court given by the two hundredth and sixth section of the District Court act (Pamph. L. 1898, p. 556) was unconstitutional, rendered the whole of that act void. The argument is that the appeal thus provided was so inseparable a part of the legislative scheme that the rest of the act was not intended to stand if that feature were not also valid. Inasmuch as the appeal in question was upon matter of law alone, it differed from the remedy by certiorari in some minor points of practice only and in the circumstance that no allocatur was required. It should not, I ihink, be assumed, for the purpose cf destroying the jurisdiction of the District Courts, that an allocatur will not be allowed in every case that presents a question of law upon which a judgment of the District Court may lawfully be reversed; and in the absence of such an assumption, the remedy by certiorari directly to the Supreme Court and thence to the Court of Errors, and the remedy by appeal to the Circuit Court and thence to this court, are, in point of substance, identical. Without restating the various forms in which this argument is pressed bjr the counsel for the prosecutor, my conclusion is that the provision of the District Court act, with respect to the appeal to the Circuit Court, is not so material or so interwoven with the rest of the act that its invalidity leads to the nullification of the whole of that judicial system.

The arguments upon the merits of the trial in the District Court have not been considered, for the reason that nothing in this respect is legally before this court. The abstract of the testimony, whether from the judge’s notes, or the stenographer’s transcript, or the stipulation of the attorneys, forms no part of the return to a writ of certiorari. The correct practice is indicated in the case of Smart v. North Hudson County Railroad Co., decided at the present term, and the rule adopted in that case is, in all respects, applied in this.  