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fying the sheriff of said county from select- (established discretion are conspicuously abing and summoning a grand jury to serve sent, and, if the judicial policy alluded to be at said special term, and the proceedings on well founded, should lead this court to rewhich such order was based; and also the frain from interference with the orderly order appointing elisors to select and sum- progress of the cause. Such a course demon a grand jury at said special term, by prives the defendant of none of the rights whom the said defendant was indicted. The secured to him by the Constitution, to be avowed purpose of the defendant (and the worked out in the courts provided for that sole object of the writ applied for) is to purpose; of these rights he is not in any move in this court to quash the said indict- sense deprived by our refusal to interfere ment, not for anything that appears upon with the orderly progress of the cause. its face or by its caption, but solely upon The matter for present decision is therethe ground that the grand jury, by whom fore not whether arguable questions may the indictment against him was found, was arise, if certain proceedings and facts that not legally selected or summoned under the are not shown by the indictment or its capseveral orders and proceedings he now seeks tion are laid before us by the return to our to have brought before this court for re-writ, but whether, where such a course is view. Presumably the testimony necessary necessary, in order to present such debatto support some of the contentions advanc- able questions, our writ should go, as it ed will be sought to be taken under a rule in does in cases where we can see for oursuch certiorari, with the expectation that selves on the face of the indictment a certain upon the preponderance of testimony, or by and sound basis for the exercise of our disdrawing the proper inferences therefrom, cretion. this court will determine the facts, and apply The elaborate brief used by counsel of the the law to the facts thus established.

defendant upon the argument dealt excluIn the case of State v. Rickey, 9 N. J. sively with the merits of the questions he Law, 293, Ford, J., in overruling an offer sought the opportunity to raise in this court to read affidavits upon a motion to quash an upon his view of the facts. Upon the arguindictment, said: “This is a motion to ment, the Attorney General insisted wita quash an indictment, and comes in the place much earnestness that the court, in the exof a demurrer, and therefore I can see no ercise of sound discretion, should not allow reason why we should depart from the its prerogative writ to be thus used as a rules applicable to demurrers.

I premature substitute for the orderly processthink, therefore, that the affidavits cannot es of the criminal law, and he pointed out be read.” He also said in the same con- some of the many embarrassments in the nection, "If the indictment is sufficient up- administration of justice that must result on the face of it, we cannot quash."

from the general adoption of such a course. This last statement, which is not an ac

This called forth a supplemental brief of curate one as applied to the power of the counsel for the defendant upon this point, court, Wais probably intended as a declara- in which he cites and relies upon two cases tion of a settled judicial policy; the power of (State v. Nicholls, 5 N. J. Law, 539, decided this court to draw into it a criminal cause in 1819, and State v. Rockafellow, 6 N. J. at any stage for any lawful purpose can Law, 332, decided in 1796), in each of which, hardly be questioned, in view of the con- after indictments had been removed into stitutional intrenchment of its historical this court (the ground of the allocatur not powers. The settled policy to which, we being stated), the court entertained and take it, Mr. Justice Ford alluded has been passed upon objections going to the legality continued to this day by the allowance of of the grand jury, arising upon state of facts the writ of certiorari to bring into this court, shown in or omitted by the caption; the for the purposes of a motion to quash, in- fact in Nicholls' Case being that no predictments that on their face, or by their cept, such as was required prior to 1822, had caption, appeared to be incapable of support- been issued, while the Rockafellow Case was ing a judgment of conviction. The two es a demurrer to the indictment. sential factors in this established exercise These cases are authority, therefore, upon of discretion are, first, that the question a point that nobody questions, viz., the powthus calling for preliminary decision is spread er of the court to entertain such objections; upon the fact of the record; and, second, but, as authority or precedent for the althat, being thus established, it enables the lowance of a certiorari, for the sole purpose allocatur to be withheld, where its probable of entertaining a motion to quash upon effect would be inerely to postpone the trial grounds extraneous to the indictment or its of the indictment.

caption, the cases cited are devoid of sigIt is evident, therefore, that where, as nificance, because they are silent as to the in the present case, the grounds of the mo- grounds upon which the discretionary altion to quash do not appear by the indict- lowance of the writ was obtained. ment or its caption, but are to be shown by Even if these cases could be cited as ex

N. J.)

ALLGAIR V. BLEW

563

cally valueless, because of the changes that sented an issue to be heard and determined by have occurred, during the period of nearly a

the statutory tribunal upon the question of its century that has elapsed since their deci- own jurisdiction; and the overruling of such an sion, in the factors that enter into the dis- was provisionally established, rendered nuga

offer, by which such lack of personal knowledge cretion thus exercised. The population of tory a subsequent order for the revocation of a the entire state then was hardly equal to

license as an order made by a body upon whom that of a single city to-day; the calendar of jurisdiction had not been conferred in the man

ner prescribed by the statute. this court in 1819 was probably not as large [Ed. Note. For other cases, see Innkeepers, as that of a single branch of the court at a Cent. Dig. § 6; Dec. Dig. § 4.*] single term to-day; and the local courts were

Certiorari to Court of Common Pleas, Midmanned by judges unlearned in the law. dlesex County. These factors, and especially the last, might

Proceeding by Jonathan M. Blew and othrender it discreet, in 1819, for this court to ers against Joseph Allgair to revoke his tavassume a more extended oversight, than it ern license. From an order of revocation, is now possible for it to do, in view of its Allgair brings certiorari. Revocation set congested list, or necessary for it to do, in

aside. view of the fact that the local tribunals are

Argued June term, 1911, before GARRIpresided over by counselors of this court.

SON, TRENCHARD, and KALISCH, JJ. In the present case, this last consideration is unnecessary, since the indictment is in

John A. Coan and George S. Silzer, for the oyer, where å justice of this court pre- prosecutor. J. Boyd Avis, for defendants. sides. If one defendant under indictment may

GARRISON, J. This writ of certiorari thus take in advance the judgment of this brings up the order of the Middlesex pleas court upon debatable questions that may revoking the prosecutor's license to keep arise at the trial, or upon proper motions

an inn and tavern. or pleadings in the trial court, all defend

The principal ground on which the proseants may do so under like circumstances, cutor bases his right to have the final order else justice is not administered without re

of the pleas set aside is that the complaint spect to persons; and if all may do so the on which the initial rule to show cause allowance of our writ and its prosecution against him was issued did not confer upin this court and the Court of Errors will on the pleas jurisdiction to hear and demean a delay of from one to two years be

termine whether his license should be retween the presentment of an indictment and voked for the reason that the complainants its trial in cases where the contentions of by whose affidavit the matters and things the defendant were not well founded, which contained in the complaint were verified had would quite often be the case, in view of the no personal knowledge whether they were delay thus obtainable, and the fact that true or false.

true or false. The contention of the prosesound discretion in the allowance of our cutor is that the lack of personal knowledge writ could not be exercised, as it is upon in the affiants rendered them incapable of matters that are spread upon the face of taking an affidavit that would constitute the the indictment.

"verification upon oath" of their complaint Public policy admonishes us against set

under the tenth section of the Werts act ting on foot a procedure having such possi- (P. L. 1889, p. 82) as amended by the Bishops bilities, not to say probabilities.

law (P. L. 1906, p. 199). It is further conIt is not a question of power, to be laid tended by the prosecutor that when, upon down as a rule of law, but of discretion, to a direct challenge of jurisdiction in this be soundly exercised in the particular case. respect, the pleas overruled his offer to

The reasons that determine our discre- prove that the complainants had no persontion in the present case, which have been al knowledge of the matters specified in sufficiently indicated, constrain us to with their complaint, the fact that they had no hold our allocatur.

personal knowledge was established for the purposes of such challenge, and hence that

the court, if the prosecutor was right as (82 N. J. L. 7)

to his legal proposition, proceeded without ALLGAIR v. BLEW et al.

having acquired jurisdiction under the stat(Supreme Court of New Jersey. Nov. 21, 1911.) utes referred to.

In the determination of the correctness (Syllabus by the Court.)

of these legal propositions, the first inquiry INNKEEPERS ($ 4*)—LICENSES-REVOCATION.

is: What must the statutory complaint and The oath by which complainants are required to verify a complaint made under section affidavit show in order to vest jurisdiction? 3 of the Bishops law (P. L. 1906, p. 201), By a reference to the statutes cited, it amending section 10 of the Werts act (P. L. will appear that, in addition to a specifica1889, p. 82), must be based upon the personal tion of the illegal acts said to have been knowledge of the affiants, which, if challenged, in limine by an offer to prove by legal evidence committed by the holder of a license, there that they did not possess such knowledge, pre-Jare two other requirements, one required by

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes.

the express terms of the statute, the other haps, from other states, but only by persons by its imperative implications. The express immediately affected. This concerns the requirement is that the persons who make makers of the complaint qua complainants. and verify the complaint shall be residents The other purpose is that the authority of of the township or municipality in which the the license-granting body shall not be inlicense was used. The other requirement is voked by persons who, having both the inthat the commission of the illegal acts speci- centive and the opportunity to acquire acfied in the complaint shall be verified upon tual knowledge that alone would be of aid the personal knowledge of the complainants in such an investigation, have not seen fit to which is imperatively implied from the fact do so. This concerns the complainants qua that the complaint in which such acts are affiants. specified shall be "verified by the oath of the Having this latter purpose in mind, it is complainant.” Verification by oath in such incredible that the Legislature provide a context means “proof”-i. e., evidence bas- intended that the oath by which the facts ed on personal knowledge--and anything that essential to jurisdiction were to be verifalls short of this falls short of being proof fied should be the oath of persons who had as much in this proceeding as it would in no knowledge as to the verity or falsity of a court of law.

such facts. The required oath was intended This is established by the cases cited in by its terms to verify; i. e., "to prove to be the brief of counsel for the prosecutor. West- true," "to establish the truth of” (Webster's fall v. Dunning, 50 N. J. Law, 461, 14 Atl. New International Dictionary). It would be 486; Johnson v. Allen, 55 N. J. Law, 401, 27 fatuous in the extreme for the Legislature, Atl. 1014; Voight v. Excise Board, 59 N. J. with this object in view, to provide for the Law, 358, 36 Atl. 686, 37 L. R. A. 692. making of an oath that could by no possi

This being so, it follows that where affiants bility verify or possess any element of verido not on the face of their affidavit, state fication. that it is made on belief merely or on in Statutory jurisdiction must be acquired in formation and belief, they in legal effect aver the manner prescribed by the Legislature, that it is made upon knowledge. If this be or it does not exist at all. · Under the statnot so, the failure to state in the affidavit utes now before us, the pleas could no more that it was made upon knowledge would absolve the complainants as affiants from render such affidavit nugatory in every pro- the possession of the knowledge requisite to ceeding where verification by oath was re- make them such than it could absolve them quired. Where nothing is stated in the af- as complainants from the possession of the fidavit from which the capacity of the af- domicile requisite to make them residents fiant to verify its contents can be gathered, of the township or municipality. one of two courses is open-either to dis Taking, therefore, the complaint and afficard such affidavit for failure to show the davit in the present case as averring that capacity to make it, or to assume in favor the complainants had personal knowledge of of its validity that such capacity exists, and the commission of the illegal acts specified is in effect averred to exist. The latter, and sworn to by them, the question whethwhich is the course generally pursued, car- er such averment was in fact true or whethries with it the right to rebut such tacit er it was false, and the court through igaverment as fully as if it had been ex- norance or design was being imposed upon, pressly made. If this position in favor of became as much a topic for preliminary dethe verification of the affidavit be not tak- termination upon the question of jurisdiction en, the only alternative is to deny its va- as the fact of the residence of the complainlidity upon its own showing.

ants would have been, if challenged in limIn the present case, therefore, the view ine, as a ground why the court should not most favorable to the validity of the affidavit assume jurisdiction. is that it avers not only that the complain In point of fact, while the latter was not ants are residents of the locality, but that, challenged, the former was by a direct as affiants, they have personal knowledge of offer to prove by the testimony of witnessthe specific violations of the law which they es, and by calling the complainants themare required to verify by their oaths.

selves, that they did not possess any personIt was, in part at least, to this end that ai knowledge of the facts the verification of the Legislature confined the right to make which by their oath was essential to the and verify the complaint to persons resident jurisdiction of the pleas. in the vicinity where the license was used; Upon this branch of the case, therefore, i. e., to persons who presumably would have our conclusion is that the legal propositions personal knowledge of violations of the of the prosecutor upon the question of julaw, or, at least, would have both the op- risdiction were entirely sound. portunity and the incentive to acquire such If the pleas, with this proposition and knowledge. The double legislative purpose proffer of testimony before it, had heard disclosed by this provision is, first, that hold- the witnesses and decided, upon the eviers of licenses shall not be open to attack dence, in favor of its own jurisdiction, a

N. J.)

CARLING v. CARLING

565

refusing, however, to hear the proffered tes In the present case, as already pointed timony, the fact that the complainants did out, the facts upon which jurisdiction was not have the personal knowledge required challenged were established by the overrulfor the verification of their complaint was ing of the offer to prove them, and it is this, upon familiar principles established for the among other things, that distinguishes the purposes of the court's action upon the present case from that of Davis v. Repp, 79 question of its jurisdiction, and the assump- N. J. Law, 394, 75 Atl. 169, in which, as will tion of jurisdiction, in view of such estab- be seen by the state of the case, there was lished fact, must rest either upon the ground no offer of testimony to prove that the afthat jurisdiction was conferred by the mere- fiants did not possess personal knowledge, ly formal presentation of an affidavit that but merely a request for permission to crosswas admittedly untrue, or else upon the examine the complainants who had not been ground that jurisdiction could be taken up-called or examined as witnesses. on the strength of allegations that in legal The denial of such a request can be supeffect were not verified by the oath of any ported on several grounds and had no tenone, neither of which propositions has any dency to establish the facts that raise the semblance of soundness.

jurisdictional question we are called upon The right and duty of a court or of a tri- to determine. bunal that upon the proof of certain facts

The conclusion to which the foregoing conmay assume jurisdiction to determine as a siderations lead us is that the order revoking preliminary matter the question of its own the prosecutor's license was nugatory bejurisdiction is universally established. 11

cause the pleas had not lawfully acquired the Cyc. p. 700.

jurisdiction to hear and determine the con“The proof,” said Van Fleet, V. C., in Attroversy. lantic Trust Co. v. Consolidated, etc., Co.,

Having thus concluded that the pleas was 49 N. J. Eq. 402, 406, 23 Atl. 934, 935, “in without generic jurisdiction over the controsupport of a jurisdictional fact must always versy, it is unnecessary to consider the othbe clear and convincing, for the court derives er reasons which deal with the lack of its power from the fact, and hence, until specific jurisdiction to make the order of the fact is shown to exist, it has no power.” revocation because of alleged errors.commitJurisdiction in fine in such cases rests upon ted in the course of the proceeding. Attorthe proof of facts, not upon a mere matter ney General v. Sooy Oyster Co., 78 N. J. of form.

Law, 394, 397, 75 Atl. 211.

The order of the Middlesex pleas revoking The opinion of Magie, Ch., in the case of Borough of Park Ridge v. Reynolds, 74 N. J. the license of the prosecutor is set aside and Law, 449, 65 Atl. 990, carries this duty of for nothing holden. inquiry as to the truth of jurisdictional facts even further than is necessary for the pur

(78 N. J. E. 42) poses of the present case. In that case the

CARLING V. CARLING. Supreme Court had held that the justice to (Court of Chancery of New Jersey. Dec. 13, , whom the jurisdictional petition of 25 free

1910.) holders was presented was not obliged to try and determine the issue raised by the de

(Syllabus by the Court.) nial of the truth of the facts stated, viz., 1. DIVORCE ($ 327*)-FOREIGN DIVORCE-EVI

DENCE OF RESIDENCE-WEIGHT AND SUFFIthat the petitioners were freeholders. 73 N.

CIENCY. J. Law, 116, 62 Atl. 190.

In a suit for divorce, a plea in bar was The Court of Errors and Appeals in af- filed by the defendant, setting up a previous firming this judgment upon another ground the parties by a court of another state, in a

decree, adjudging a decree a vinculo between took occasion to say in the opinion above suit brought therein by the defendant, claimcited: “We are unable to approve the view ing residence in that state, against the comthat the Supreme Court justice who has di- plainant. Upon the complainant in the present rected the investigation may not be required by the defendant's fraudulent representation

suit contending that such decree was obtained to institute an inquiry into the truth of that he was a bona fide resident of that state, the affidavit upon which his jurisdiction has evidence examined, and held, that the plea was been invoked, at least to the extent of dis- not sustained.

[Ed. Note.-For other cases, covering whether he has been imposed up-Cent. Dig. $S 831-834; Dec. Dig. $ 327.*]

see Divorce, on.” If the truth of facts duly verified by the oaths of persons possessing personal

(Additional Syllabus by Editorial Staff.) knowledge is, when challenged, a proper sub- 2. DIVORCE (S 327*) — FOREIGN DIVORCE

DOMICILE OF PLAINTIFF. ject of preliminary determination upon the

The mere fact that one went to Dakota question of jurisdiction, it follows, a for- with the predominant purpose of securing a tiori, that the possession of the personal divorce would not prevent him from getting a knowledge essential to the making of the valid divorce there, provided he went animo

manendi. jurisdictional affidavit is likewise a proper

[Ed. Note. For other cases, see Divorce, subject for such determination.

Cent. Dig. $8 831-834: Dec. Dig. $ 327.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Bill by Anna M. Carling against W. Mon-, gan suit. The divorce was granted on Janroe Carling. Decree for complainant.

uary 30, 1905. W. Holt Apgar, for complainant. Linton with the intention of staying in the West for

[2] He appears to have left New Jersey Satterthwait, for defendant.

an indefinite time. He wanted to get away

from his wife, and to be divorced from her. STEVENS, V. C. This is a suit for di- He doubtless thought that he could not get vorce on the ground of desertion. To the bill a divorce here, and that he could get one in the defendant has interposed a plea, in Dakota. The mere fact that he went there which it is averred that on December 19, with that as the predominant purpose would 1904, he had been for more than six months not have prevented him from getting a valid a bona fide resident of South Dakota; that divorce there, provided he went animo maon that day he filed in the office of the cir- nendi. Such was the decision in Tracy v. cuit court of the Second judicial district, Tracy, 62 N. J. Eq. 807, 48 Atl. 533. But, as county of Lincoln, state of South Dakota, was said in that case, if a person go "with his complaint for divorce from complainant the avowed object of living (there] to secure on the ground of extreme cruelty; that by a standing on which to found a judicial prothe law of that state divorce may be granted ceeding, a violent presumption would arise on that ground, but not unless the plaintiff that the animus of remaining was not defihas been a bona fide resident for at least six nite, but was largely determinate upon the months next preceding the commencement of termination of such procedure, and that an the action; that no answer, demurrer, or ap- actual and bona fide residence had not been pearance had been put in by defendant; and obtained.” In Magowan v. Magowan, 57 N. that after a hearing the court, on January J. Eq. 324, 42 Atl. 330, 73 Am. St. Rep. 645, 30, 1905, adjudged a divorce a vinculo be- it was said by Chief Justice Gummere: "He tween the parties. The sole issue is whether [Magowan] says that his purpose in going to this adjudication constitutes a bar to the Oklahoma was to become a resident, but it is present proceeding. The contention is that very clear that if such was his purpose he the decree was obtained by the fraudulent failed to accomplish it. To effect a change representation that the defendant was a bona of domicile, not only must the residence at fide resident of Dakota.

the place chosen for the new domicile be ac[1] The parties were married July 11, 1895. tual, but to the factum of residence there The defendant is a physician, 38 years old. must be added the animus manendi.” Prior to June, 1904, he and his wife had I think these quotations are applicable to been living with defendant's mother at 230 the present situation. The doctor resided in South Clinton avenue, Trenton, N. J. They Dakota for the statutory period, but not, as had quarreled a good deal, and defendant the evidence shows, animo manendi. He had had, according to the weight of the evidence, no relatives, friends, or business acquaintoffered complainant $2,000 if she would leave ances in Dakota. He had made no business his mother's house, and let him bring a suit or professional arrangement before going. for desertion. This she refused to do. He says that on his arrival in Sioux Falls About June 10, 1904, or a few days prior he made application to the president of the thereto, he left Trenton and went to Sioux state board, who allowed him to practice Falls, S. D. He first lodged with a Mrs. until he could pass that board, which he Clark and then with a Mrs. Phillips. Mrs. never took the trouble to do. He took a Phillips says he came to her house on July temporary position at Castlewood, a prairie 23, 1904, and that he roomed there until the village of three or four hundred inhabitants, following March; that he did not stay away to supply temporarily the place of one of any length of time, except on one occasion, the two doctors who practiced there; but for a week or two, when he went to Phila- it is evident from the testimony of his landdelphia. In March, 1905, probably, he went lady, Mrs. Phillips, that this practice was to Denver, in the state of Colorado, and in not very engrossing. His other occupations May or June of that year was awarded a consisted in playing golf and in doing some certificate, authorizing him to practice medi-optical work in Sioux Falls. The fair infercine there. He took an appointment in the ence from his own testimony is that he had University of Denver as an assistant eye no fixed intention of remaining. In his exsurgeon, and resided and voted in Denver amination in chief, he says: “My intention until December 24, 1909, when he returned was to go there and get 160 acres of land in to Trenton, where he is now residing.

the Rosebud Indian reservation at $1.25 per The bill in this case was filed on July 25, acre, which was opened by the United States 1906. A plea was filed on October 26, 1906, government at that time, for which I did and an amended plea on October 5, 1907. make an application, and I had a little inThe defendant married again on November terest elsewhere in South Dakota, and do 13, 1907. He appears to have done so with you want to know anything more? Q. Yes; full knowledge that the suit was pending. what was you intention in going out there? The question is whether he was a bona fide A. Well, that was my intention to go into resident of Dakota for the six months prior this land business and my mining interest.”

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