The opinion of the court was delivered by VANDERBILT, C.J.
The defendant petitioned for a reargument of the appeal on two grounds that are of such general interest that we deem it advisable to set forth our views thereon.
The first ground is that this Court, after requesting counsel to argue the point first raised in the respondent's brief, declined to rule on the constitutionality of R.S. 40:47-4 because the question had not been raised below.
The appeal here was from a judgment of the Law Division of the Superior Court, dismissing an information in the nature of a writ of quo warranto. The appeal was taken to the Appellate Division and certified by this Court on its own motion. After argument we reversed the judgment below and entered
"The defendant's next contention, to escape the operation of this statute, is that it is unconstitutional as by its terms it is subject to another statute that permits a veteran to deduct five years from his age. Whatever the merits of this attack on the constitutionality of R.S. 40:47-4 may be, they need not be resolved here. There is nothing in the record even to hint that this argument was raised at either the pretrial conference or the trial and, this being so, the defendant should not be permitted to raise it on appeal."
The defendant now urges that this is error, citing Bradner, New Jersey Law Practice, 676, § 731, wherein it is said that the appellate court will not consider "Points of law not considered by lower court unless involving matters of public policy or constitutional questions." The cases cited by Bradner, however, to support this statement demonstrate the correctness of our ruling and the weakness of the defendant's contention. In McMichael v. Horay, 90 N.J.L. 142 (E. & A. 1917), the court affirmed the judgment below on grounds of public policy not considered below. Commenting on its power so to do the court said (p. 145):
"This court held in State v. Heyer, 89 N.J.L. 187, that a question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. But this must be read in the light of our holding in State v. Shupe, 88 Id. 610, where it was decided that a court of last resort need not hear a party on a question which could have been, but was not, raised in an intermediate court of appeal, except where the question goes to the jurisdiction of the subject-matter or where a question of public policy is involved. The true doctrine is that a court of appeals need not, not that it cannot, decide a question arising on a record before it, which was not raised in a court below, whether that court be an intermediate court of appeals or a court of first instance."
Five years later the court of last resort refused to consider a constitutional question not raised below and affirmed the
"The next point is that the act just mentioned is unconstitutional, in that its title is defective. Defendants-respondents assert in their brief that this point was not raised or argued in the court below and therefore cannot now be urged. In the reply brief it is stated for appellant that the constitutional question was fully raised by elaborating objections to the affidavit and asserting the invalidity of the entire proceedings, and that these questions were raised on the removal of the case to this court. An examination of the nine reasons filed in the Supreme Court fails to disclose, or even suggest, that the act under which the proceedings were brought is unconstitutional. Where the Supreme Court sits as a reviewing tribunal, as it did in this case, questions not argued there will ordinarily not be noticed here, but may be if they involve jurisdiction or public policy. See State v. Belkota, 95 N.J.L. 416; State v. Snell, 96 Id. 299. But, as above remarked, the jurisdictional question of defective title of the act under which these proceedings were instituted, was not even raised in the court of first instance, and, consequently, could not have been argued in the court of intermediate appeal, as it was not, and it will not, be noticed here."
The third case cited by Bradner is Wallack v. Stein, 103 N.J.L. 470 (E. & A. 1927), where the court considered a question as to the constitutionality of a section of the Uniform Stock Transfer Act when that question had not been raised below, but, finding the provision constitutional, affirmed the judgment under review. The court here said (p. 401):
"We might well decline, under the settled practice here, to consider the question. In view, however, of the importance of the act and the fact that the Supreme Court has itself twice adverted to the possible unconstitutionality of this section (see opinion below and Mulock v. Ulizio, 102 N.J.L. 251), it may well be that this is one of those exceptional cases in which public policy requires that the question should be put at rest by authoritative declaration of this court, involving as it does the validity in part of a statute of wide application and of general interest. McMichael v. Horay, 90 N.J.L. 142; Franklin v. Millville, 98 Id. 262. We, therefore, proceed to examine it."
In the last case cited by Bradner, State v. Guida, 119 N.J.L. 464 (E. & A. 1938), the court considered the constitutionality
"Although not raised in the Quarter Sessions, we conceive that the constitutional questions raised here and in the Supreme Court should be determined. They are fundamental. If the statute contravenes the Constitution of New Jersey, the judgment under review is a nullity. If that is so, the indictment does not charge a crime. Public policy is ill-served by convictions as for crime under a void statutory provision."
These cases, which are in accord with the general rule in other states, 3 Am. Jur., Appeal and Error, §§ 287, 293, and 4 C.J.S., Appeal and Error, §§ 233a, 234, clearly indicate that the true rule is that the appellate court may, but need not consider constitutional questions not raised below unless they involve jurisdiction. In this case there are no special circumstances existing which would prompt this Court to exercise its discretion and consider on this appeal a constitutional question not previously raised, and the rule is correctly stated in the opinion, for it states that "Whatever the merits of this attack on the constitutionality of R.S. 40:47-4 may be, they need not be resolved here."
In addition to these pertinent authorities under the former practice we would direct particular attention to Rule 1:3-2(c):
"* * * If the questions involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception."
This rule despite its imperative nature was not complied with in this case.
The second argument made in support of the motion for reargument was not mentioned in the briefs of either party nor was it adverted to at the oral argument. It is now tendered to us for the first time. It amounts to a contention that this appeal is not, or at least should not be, an appeal and
Nothing in either of these documents or in the notice of appeal indicates that either of the parties considered that their case had not been duly tried and finally determined. Despite all this, the defendant further states in his motion here:
"It was our view at the trial that the cause was actually pending in the Appellate Division pursuant to the constitutional mandate and that Judge Waesche was simply an agent of that court to determine a question of fact through the assistance of a jury.
"In our brief filed with the Appellate Division, the constitutional question was properly raised. Just how it could be raised before Judge Waesche in view of the position we took, supported as we are by the express language of the constitution, we do not know.
"The correct procedure should have been a report to the Appellate Division of the facts found, with judgment to be entered on such a finding as a matter of law. At that time all legal objections to the judgment could have been raised. The trial court refused to follow this procedure. We do not see how that can preclude us from raising the constitutional question in the very court authorized by the Constitution itself to hear it."
This statement is inconsistent with the record and with the entire conduct of the defendant up to the time of the making of this motion. Whatever the appropriateness of the procedure, it is apparent that both the defendant and the plaintiff considered that the trial judge was trying their case in its entirety. When judgment was entered in the Law Division there is every reason to believe that both parties considered the judgment final and dispositive of the matter, subject, of course, to an appeal. When the plaintiff appealed to the Appellate Division and the parties filed their briefs, there is every reason to believe that they considered it a bona fide appeal from a bona fide judgment. Not until this motion for a rehearing has the defendant even suggested that the appeal was other than
This case was transferred by Article XI, Section IV, paragraph 8(b) of the Schedule annexed to the Constitution from the former Supreme Court to the Appellate Division of the Superior Court and normally would and should have been there heard and disposed of, after the taking of evidence before a judge of the Law Division upon such terms as the Appellate Division deemed proper, R.S. 2:16-83. The parties, however, tried the case before the Law Division in the same manner as if it had been commenced there subsequent to September 15, 1948, and with the apparent understanding that it would there be finally determined. The judgment of this court entered on appeal will, therefore, not be disturbed unless the Law Division lacked jurisdiction to enter the judgment from which the appeal was taken. Such is not the case. The Law Division is not without jurisdiction to determine this matter; rather it is a proper tribunal for the determination of such proceedings in lieu of prerogative writs, Article VI, Section V, paragraph 4 and Rule 3:81-2. Article XI, Section IV, paragraph 8(b), pursuant to which this case was transferred to the Appellate Division, was not intended to restrict, or otherwise limit or define the jurisdiction of the Superior Court as set forth in the Judicial Article of the Constitution; but rather to protect the rights and interests of the parties to the causes transferred thereby. As was pointed out in Gallena v. Scott, 1 N.J. 430, 436 (1949), "These provisions of the Constitution are not to receive a strict * * * construction but a broad and liberal interpretation in keeping with their obvious reason and spirit."
Even though this action was brought on for trial before the Law Division of the Superior Court in an irregular fashion, that Division did not lack jurisdiction. One of the great
The petition for a reargument is denied.
For denial — Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHANT, WACHENFELD and BURLING — 6.
For granting — None.