
    WEEKS v. FORMAN, CITY TREASURER OF NEW BRUNSWICK.
    On Certiorari to the Common Council.
    The Corporation of New Brunswick City, have no power under their charter, to create an action of debt, or confer by ordinance, judicial power on their officers.
    The language in the charter, making the city magistrates, “justices of the peace, ex offieio,” gives them no power to entertain or try actions of debt. •An ordinance giving such power, is void, quo ad hoe.
    
    STATE OF THE CASE.
    In April 1835. The Corporation of the City of New Brunswick, made an ordinance, to prevent, within their bounds, shows and exhibitions such as are prohibited by the 12th section of the “Act for suppressing vice and immorality.” II. L. 382, with the addition of “ Circus riding.” To the transgression of this ordinance, they added a penalty to be recovered in an action of debt, in the name of the City Treasurer, for the use of the Corporation by any one who would sue for the same. And they made that action cognizable by the Mayor, Recorder, or any one of the Aldermen. The ordinance — then further proceeds to direct the Mayor, Recorder, or either of the Aldermen, on information given, Ac, to cause the offender to be brought before him, and on proof, to convict, “as in the ordinance directed.”
    Weeks, was charged with a breach of this ordinance. A v,-arrant against him in debt — on information given, was issued by one of the Aldermen, for the forfeiture of thirty dollars. He was convicted — or rather, judgment of debt was rendered against him, from which he appealed as by the city charter directed, to the Mayor, Recorder, and Common Council, who affirmed the judgment. All these proceedings have been brought into this Court, for the purpose of testing the validity of the above ordinance; as well as the regularity and legality of the proceedings under it. It was objected, among other things:
    That the ordinance was not warranted by the city charter, Rev. L. 505, 614. The Corporation having no power, thus to confer judicial power on its officers, and create the subject matter of its exercise.
    That the ordinance is not within the proper limits of a by-law, which cannot extend to the suppression of vice, or protection of public morals.
    That it is repugnant to the public law of the state, for the suppression of vice and immorality, above referred to, in creating an additional and greater penalty, for offences within the provisions of that law.
    (Transcript op James C. Zabriskie.)
    City of New Brunswick ss. Wm. P Forman City Treasurer pl’ff. vs. Edward C. Weeks defendant.
    Court for the trial of causes pertaining to the Corporation. James C. Zabriskie Alderman.
    In debt. 21 April 1835. I issued a warrant in the above cause, demand thirty dollars; same day the Marshal returned the warrant with the defendant in custody, who entered into a reconizance with Walter M. Richmond as surety for his appearance on Wednesday the 29th day of April at two o'clock in the afternoon. April 29 parties appeared by their respective counsel J. S. Blauvelt esq. for the plaintiff and Wm. H. JDisborough esq. for the defendant, and proceeded to trial. The plaintiff filed his state of demand. On behalf of the plaintiff, George P. Molleson and John S. Hoaglaud were sworn; on the part of the defendant, Peter Conover and Joseph E. Marsh. The defendant’s counsel offered in evidence, a part of the record of Common Council, touching the proceedings of that body in relation to the passage of the ordinance authorizing the above proceedings— the admission of the paper, was objected to by the opposite counsel ; the objection was overruled. After the examination of the witnesses, the cause w7as rested and fully argued. I then gave judgment for the plaintiff, for thirty dollars debt, and two dollars and ten cents costs, executiou was immediately issued. The defendant demanded an appeal, which was granted upon a bond being filed.
    I certify the within to be a true transcript from my docket. Witness my hand and seal, this 29th June 1835.
    James C. Zabriskie Aldermen.
    (Copy of Information)
    City of New Brunswick ss. Personally appeared before me James C. Zabriskie one of the Aldermen of said City, John S. Hoagland who being duly sworn, upon his oath deposeth and saith, that on the afternoon of Tuesday the 21 April inst. he witnessed an exhibition of feats of uncommon dexterity and agility of body and of Circus riding, within the bounds of said City, under the superintendence and control of Weeks who represented himself as one of the firm of Buckley, Weeks & Co. proprietors of the establishment, whose advertisements have publicly appeared in said City.
    Sworn to before me this 21 day of April 1835.
    James C. Zabriskie Aldermen.
    John S. Hoagland
    (Copy of state of Demand.)
    City of New Brunswick, in a Court holden before James C. Zabriskie esq. one of the Aldermen of said City.
    William P. Forman Treasurer of the City of New Brunswick plaintiff, against Edward C. Weeks defendant.
    In debt.
    The plaintiff demands of the defendant, the sum of thirty dollars for this, that the Mayor, Recorder, Aldermen and Common Council of the City of New Brunswick, heretofore to wit on the 18 day of April 1835, at the said City of New Brunswick, did make, pass, seal with the common seal of said City, and publish a certain by-law and ordinance to the purport and effect following that is to say; “An ordinance to prevent useless immoral and injurious public shows or exhibitions in the city of New Brunswick,” “Section 1. Be it ordained by the Mayor, Recorder, Aldermen and Common Council of the City of New Brunswick, and it is hereby ordained by the authority of the same, that from and after the 18 day of April 1835, it shall not be lawful for any person or persons whatsoever for any price, gain or reward, to shew forth, exhibit, act, represent or perform, or cause to be shewn- forth, exhibited, acted, represented or performed, on any public stage, or in any public house or other place whatsoever, any interludes farces or plays of any kind, or any games, tricks, juggling sleights of hand, or feats of uncommon dexterity and agility of body, or any bear-baiting, or bull-baiting, or any Circus riding, or any such like shews, or exhibitions whatsoever, within the limits of the said City of New Brunswick. Section 2. Provided and be it further ordained that if in the opinion of the Mayor, Recorder, and one of the Aldermen, or if in the opinion of any three of the Aldermen of this City, it shall be deemed that such interlude, farce or play; public shew, or exhibition may probably and to answer any reasonable or useful end, it shall be lawful for the said Mayor, Recorder and Aider-men, or for the said three Aldermen at their discretion, on application for that purpose, to give license in writing for such interlude, farce or play, public show or exhibition, to be performed, exhibited or represented. Section 3. And be it further ordained, that if any person or persons transgress the provisions of this ordinance, he or they shall forfeit and pay, on conviction thereof, the sum of thirty dollars for the use of the Corporation of this City, to be recovered in an action of debt, by any one who shall prosecute for the same, in the name of the City Treasurer, before the Mayor, Recorder or one of the Aldermen of this City, with costs of suit. Section 4. And be it further ordained that the Mayor, Recorder, or any of the Aldermen of this City, shall immediately on information given upon oath or affirmation of the marshal or any one of the police officers of this City, or of any other person whatsoever, cause the offender and offenders against, this ordinance, to appear before him, and upon such information being proved, shall convict such offender and offenders in such manner as is in this ordinance prescribed.” And the said plaintiff in fact saith, and avers, that after the passing of said ordinance, as is above stated and set forth, to wit, on the 21 day of April 1835, at the City of New Brunswick aforesaid, the said defendant did for price, gain and reward, shew forth, exhibit, act, represent, and perform, and cause to be shown forth, exhibited, acted, represented and performed, at a place within the limits of the said City of New Brunswick, Circus riding, b.e the said defendant, at the said time he so showed forth, exhibited, acted, represented, or performed, and caused to be shewn forth, exhibited, acted, represented, or performed the said Circus riding, not having obtained a license for that purpose, pursuant to the directions and requirements of the by-law and ordinance aforesaid; by means whereof and by force of the said by-law and ordinance aforesaid, the defendant has become liable to pay, and an action hath accrued to the plaintiff, to have and demand of and from the said defendant, the said sum of thirty dollars above demanded, for which amount of thirty dollars, the said plaintiff prays judgment.
    Wm. P. Forman, Treasurer, plaintiff.
    (Proceedings before Mayor, Recorder, Aldermen and Common Council) Monday evening 15 June 1835, Common Council met pursuant to adjournment. The cause presented from the Court below, was “ Forman v. Weeks.” After hearing an argument from Mr. Dishorough the attorney for the appellant, and a reply from Mr. Blauvelt the Corporation attorney, it was ordered that the parties be directed to conform to the rule adopted in the Court of Common Pleas, by filing a bond. A motion was made-to stay the proceedings in the Court below, until the appeal could be tried, but the motion was not sustained. Friday afternoon 31 July 1835, Common Council resolved itself into a Court of appeal, Wm. P. Forman, Treasurer v. Edward C. Weeks, appellant, on appeal from Alderman Zabriskie. It was ordered that this appeal now come on. A motion was made to excuse Alderman Zabriskie from participating in the trial of this cause. The motion was not sustained, Wm. II. Dishorough counsel for the appellant preferred an objection to Alderman Zabriskie taking any part in the appeal now to be tried, in consequence of his having given an opinion in the Court below. The objection was overruled. John S. Hoagland was sworn and examined on the part of the appellee, and the minutes of Common Council were read on the part of the appellant. After hearing the evidence, the Court took a recess until seven o’clock in the evening. Friday evening July 31,18o5, John S. Blauvelt counsel for the appellee, and Wm. H. Disborough counsel for the appellant appeared, and after hearing the allegations of the parties, Common Council ordered that the judgment of the Alderman in this case, be affirmed, and gave judgment in favor of the appellee, plaintiff below, against the appellant defendant below, for the sum of thirty dollars debt and two dollars and ten cents cost of suit, and also three dollars and forty two cents costs of this appeal.
    ■ The above is a copy of the proceedings in the case of Wm. P. Forman, Treasurer v. Edward C. Weeks.
    Wm. Disborough.
    
      Disborough and Scott for plaintiff in Certiorari.
    
    
      Blauvelt for the defendant in Certiorari.
    
   The opinion of the Court, was delivered by

Ryerson J.

I am opinion that this proceeding is radically erroneous.

The Corporation, have no power, under their charter, to create an action of debt. It was never intended by their charter, that the Common Council might in this way, confer judicial powers on their Aldermen, or other police magistrates. The proceedings, by action, in its ordinary and limited sense, even to recover a debt or penalty for a breach of an ordinance, are radically different from the quasi criminal process, terminating in what is technically called a conviction. Of the latter, the city magistrates, as such, have jurisdiction; of the former they have not. I say the city magistrates, as such: because the judicial authority conferred on them by the 62d. section of the act constituting Courts for the trial of small causes, li. L. 642 — (or any other, if there be any other similar grant,) rests on an entirely different basis. They then sit, and act as Judges of a Special Court of record ; under a special grant of jurisdiction, and not as city-magistrates. I have looked in vain through the acts conferring corporate powers on the City, for the one in question ; for the authority in the Mayor, Recorder or Aldermen, to hold plea of debt. Their judicial power if such it may be called, is conferred originally, in section 3, of the charter, R. L. 506, by the words, “shall be justices of the peace, ex officio, within the said City.” This gives no power to entertain, or try an action of debt. Justices of the peace, simply as such, have no such jurisdiction. It is true in the supplement to their charter, R. L. 614 section 1, it is enacted, “ that the Mayor, Recorder, Aldermen and Common Council may make, limit, impose and tax reasonable fines and amercements against all and upon all, who shall offend against ” their laws; “ Ac. And the said Mayor, Recorder, or either of the said Aldermen, shall and may have and take cognizance before them, of all or any action or actions to be brought for a breach of any of the said laws ” Ac. This language would seem at first view, to import, as was insisted on the argument of this cause, that these magistrates might hold jurisdiction of actions, in the restricted sense, to which I have alluded. But when we look at the whole of the section, we find what kind of action is intended ; it is for fines and amercements for a breach of the said laws. Now an action of debt is never brought to try and determine when a fine, or amercement has been incurred — or should be inflicted. This is the appropriate duty of a Justice of the peace, properly so called; or other similar tribunal. I conclude, therefore, that action is here used in the broader sense known to our law, which would include information, complaint, conviction Ac. It means no more than that the magistrate may hear, try, and determine any complaint or information of a breach of the law; convict the offender thereof; and thereupon adjudge the appropriate fine or amercement. An action of debt might then perhaps, be sustained, in a proper Court, for the fine or amercement this imposed, if not collected according to the directions contained in the latter part of the section of the statute, above, in part, recited. But that is a different proposition altogether, from the one necessary to be maintained to support these proceedings. I conclude therefore, that in this attempt of the Corporation to create an action of debt and give jurisdiction thereof to their magistrates, they have transcended their powers; and their ordinance quoad hoe; is void.

I would further remark that there seems no little confusion in the ordinance in question. The third- section gives, or attempts to give an action of debt for the penalty, with power to the Aldermen &c. to entertain the action. The fourth section then directs a complaint or information — proof and conviction, similar to the proceedings in the 12th section, before referred to, of the act for the suppression of vice and immorality. — With this remarkable addition however, that the magistrate shall on due proof, “convict such offender, in such manner as is, in this ordinance prescribed.” But this is the first time the manner of conviction had been spoken of; unless the giving an action of debt, was prescribing the mode. It would seem then, as if the ordinance, confounded and blended together, a complaint, action, and judgment of debt, and conviction. And in the same confused state, on the same matters, are the proceedings before the Alderman. This would, perhaps, of itself form a sufficient ground for setting aside the whole proceedings. But it is not necessary, and I do not intend to express any definite opinion on this point.

Other objections than what I have particularly noticed, were urged against the by-law in question; and various other exceptions taken to the regularity and legality of the proceedings; all of which I shall pass by, as not now necessary to be discussed, or decided.

I will however, remark further; I am not quite clear that the subject matter of the ordinance, is not within the competency of corporate authorities to regulate. The tranquillity, and good order of their borough, they may preserve. Can they secure these, where they can not prevent, or control, such an assemblage as Circus riders, and those whom they usually attract ?

Nor does it appear, to my mind, quite clear, that regulations on the subject, being prescribed by a general statute, the corporate authorities may not superadd others, and other and greater penalties. What may be sufficient for the dispersed population of the state at large, may be inadequate to the necessities of a crowded borough — or city. But no definite opinion, on these points, is entertained or intended to be expressed.

Let the judgments, order, sentence, and proceedings, both of the Alderman, and Common Council, be reversed, set aside, and annulled.

Hornblower, C. J. and Ford, J. concurred.

Judgments Reversed.

Cited in State v. Perkins, 4 Zab. 410.  