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fying the sheriff of said county from selecting and summoning a grand jury to serve at Said special term, and the proceedings on which such order was based; and also the Order appointing eliSOrS to Select and Summon a grand jury at said special term, by whom the said defendant was indicted. The aVOWed purpose of the defendant (and the sole object of the writ applied for) is to move in this court to quash the said indictment, not for anything that appears upon its face or by its caption, but solely upon the ground that the grand jury, by whom the indictment against him was found, was not legally Selected Or Summoned under the Several Orders and proceedings he now seeks to have brought before this court for reView. Presumably the testimony necessary to Support Some of the contentions advanced Will be sought to be taken under a rule in Such certiorari, with the expectation that upon the preponderance of testimony, or by drawing the proper inferences therefrom, this court will determine the facts, and apply the law to the facts thus established. In the case of State v. Rickey, 9 N. J. Law, 293, Ford, J., in overruling an offer to read affidavitS upon a motion to quash an indictment, Said: . “This is a motion to quash an indictment, and comes in the place Of a demurrer, and therefore I can See no reason Why We Should depart from the rules applicable to demurrers. * * * I think, therefore, that the affidavits cannot be read.” He also Said in the Same connection, “If the indictment is sufficient upon the face of it, we cannot quash.” This last statement, which is not an accurate one as applied to the power of the court, was probably intended as a declaration of a settled judicial policy; the power of this Court to draw into it a Criminal cause at any stage for any lawful purpose can hardly be questioned, in view of the conStitutional intrenchment of its historical powers. The settled policy to which, we take it, Mr. Justice Ford alluded has been Continued to this day by the allowance of the writ of certiorari to bring into this court, for the purposes of a motion to quash, indictments that on their face, or by their caption, appeared to be incapable of supporting a judgment of conviction. The two esSential factors in this established exercise of discretion are, first, that the question thus calling for preliminary decision is spread upon the fact of the record; and, second, that, being thus established, it enables the allocatur to be withheld, where its probable effect would be merely to postpone the trial Of the indictment. It is evident, therefore, that where, as in the present case, the grounds of the motion to quash do not appear by the indictment or its caption, but are to be shown by
established discretion are conspicuously absent, and, if the judicial policy alluded to be Well founded, should lead this court to refrain from interference with the orderly progreSS Of the CauSe. Such a courSe deprives the defendant of none of the rights secured to him by the Constitution, to be Worked out in the courts provided for that purpose; of these rights he is not in any sense deprived by our refusal to interfere With the orderly progress of the cause. The matter for present decision is therefore not whether arguable questions may arise, if certain proceedings and facts that are not shown by the indictment or its caption are laid before us by the return to our writ, but whether, where such a course is necessary, in Order to present Such debatable questions, Our Writ should go, as it does in cases where we can see for ourSelves on the face of the indictment a certain and SOund basis for the exercise of Our disCretion. The elaborate brief used by counsel of the defendant upon the argument dealt excluSively. With the merits of the questions he sought the opportunity to raise in this court upon his view of the facts. Upon the argument, the Attorney General insisted witn much earnestness that the court, in the exercise of Sound discretion, should not allow its prerogative Writ to be thus used as a premature substitute for the orderly processes of the criminal law, and he pointed out Some Of the many embarrassments in the administration of justice that must result from the general adoption of Such a course. This called forth a supplemental brief of Counsel for the defendant upon this point, in which he cites and relies upon two cases (State v. Nicholls, 5 N. J. Law, 539, decided in 1819, and State V. Rockafellow, 6 N. J. Law, 332, decided in 1796), in each of which, after indictments had been removed into this court (the ground of the allocatur not being stated), the court entertained and passed upon objections going to the legality of the grand jury, arising upon State of facts ShoWn in or omitted by the caption; the fact in Nicholls’ Case being that no precept, such as was required prior to 1822, had been issued, While the Rockafellow Case Was a demurrer to the indictment. These cases are authority, therefore, upon a point that nobody questions, viz., the power of the Court to entertain such objections; but, as authority or precedent for the allowance of a certiorari, for the sole purpose of entertaining a motion to quash upon grounds extraneous to the indictment or its caption, the cases cited are devoid of significance, because they are Silent as to the grounds upon which the discretionary allowance of the Writ was obtained. Even if these CaseS Could be cited as ex
cally valueless, because of the changes that have occurred, during the period of nearly a century that has elapsed since their deciSion, in the factors that enter int0 the discretion thus exercised. The population of the entire State then was hardly equal to that of a single city to-day; the calendar of this court in 1819 was probably not as large as that of a single branch of the court at a Single term to-day; and the local courtS Were manned by judges unlearned in the law. These factors, and especially the last, might render it discreet, in 1819, for this court to aSSume a more extended OVerSight than it is now possible for it to do, in view of its congested list, or necessary for it to do, in View Of the fact that the local tribunals are presided over by counselors of this court. In the present case, this last consideration is unnecessary, Since the indictment is in the Oyer, where a justice of this court presides. If One defendant under indictment may thus take in advance the judgment Of this COurt upon debatable questions that may arise at the trial, or upon proper motions Or pleadings in the trial court, all defendants may do so under like circumstances, else justice is not administered without reSpect to perSons; and if all may do So the allowance of Our Writ and its prosecution in this court and the Court of Errors Will mean a delay of from one to two years between the presentment of an indictment and its trial in cases where the contentions of the defendant Were not Well founded, which Would quite Often be the Case, in View of the delay thus obtainable, and the fact that Sound discretion in the allowance Of Our
sented an issue to be heard and determined by the statutory tribunal upon the question of its OWn jurisdiction; and the overruling of Such an offer, by which such lack of personal knowledge was provisionally established, rendered nugatory a subsequent order for the revocation of a license as an order made by a body upon whom. jurisdiction had not been conferred in the manner prescribed by the statute. [Ed. Note.—For other cases, see Innkeepers, Cent. Dig. § 6; Dec. Dig. § 4.*] Certiorari to Court of Common Pleas, Middlesex County. Proceeding by Jonathan M. Blew and otherS against Joseph Allgair to revoke his taVern license. From an order of revocation, Allgair brings certiorari. Revocation Set aSide. Argued June term, 1911, before GARRISON, TRENCHARD, and KALISCH, J.J.
John A. Coan and George S. Silzer, for prosecutor. J. Boyd Avis, for defendants.
GARRISON, J. This writ of certiorari brings up the order of the Middlesex pleas. revoking the prosecutor's license to keep an inn and tavern. The principal ground on which the prosecutor bases his right to have the final order Of the pleas Set aside is that the Complaint On Which the initial rule to ShOW CauSe against him was issued did not confer upon the pleas jurisdiction to hear and determine whether his license should be revoked for the reason that the complainants. by whose affidavit the matters and things Contained in the Complaint Were Verified had no personal knowledge whether they were true Or false. The COntention Of the prosecutor is that the lack of perSonal knowledge in the affiants rendered them incapable of taking an affidavit that would constitute the “Verification upon Oath” of their Complaint under the tenth section of the Werts act (P. L. 1889, p. 82) as amended by the Bishops law (P. L. 1906, p. 199). It is further contended by the prosecutor that When, upon a direct challenge of jurisdiction in this respect, the pleas overruled his offer t0. prove that the complainants had no perSonal knowledge of the matters specified in their complaint, the fact that they had no personal knowledge Was established for the purposes of such cluallenge, and hence that the court, if the prosecutor was right as to his legal proposition, proceeded without having acquired jurisdiction under the statutes referred to. In the determination Of the COrrectneSS of these legal propositions, the first inquiry is: What must the statutory complaint and affidavit ShoW in Order to West jurisdiction? By a reference to the statutes cited, it will appear that, in addition to a specification of the illegal acts Said to have been committed by the holder of a license, there are two other requirements, one required by the express terms of the statute, the other by its imperative implications. The express requirement is that the persons who make and Verify the complaint shall be residents of the township or municipality in which the license was used. The other requirement is that the Commission of the illegal acts Specified in the complaint shall be verified upon the personal knowledge of the complainants Which is imperatively implied from the fact that the complaint in which such acts are specified shall be “verified by the oath of the complainant.” Verification by oath in such a context means “proof”—i.e., evidence based on personal knowledge—and anything that falls short of this falls short of being proof aS much in this proceeding as it Would in a Court Of law. This is established by the cases cited in the brief of counsel for the prosecutor. Westfall V. Dunning, 50 N. J. Law, 461, 14 Atl. 486; Johnson v. Allen, 55 N. J. Law, 401, 27 Atl. 1014; Voight V. Excise Board, 59 N. J. Law, 358, 36 Atl. 686, 37 L. R. A. 692. This being so, it follows that where affiants do not on the face of their affidavit, State that it is made on belief merely or on information and belief, they in legal effect aver that it is made upon knowledge. If this be Inot S0, the failure to State in the affidavit that it was made upon knowledge would render such affidavit nugatory in every proceeding Where Verification by Oath was required. Where nothing is stated in the affidavit from which the capacity of the affiant to Verify its contents can be gathered, One Of tWO Courses is Open—either to disCard Such affidavit for failure to ShOW the capacity to make it, or to assume in favor of its validity that such capacity exists, and is in effect averred to exist. The latter, which is the course generally pursued, carries with it the right to rebut such tacit averment as fully as if it had been expressly made. If this position in favor of the Verification Of the affidavit be n0t taken, the only alternative is to deny its validity upon its own showing. In the present case, therefore, the view most favorable to the validity of the affidavit is that it avers not only that the complainants are residents of the locality, but that, as affiants, they have personal knowledge of the specific violations of the law which they are required to verify by their oaths. It was, in part at least, to this end that the Legislature confined the right to make and verify the complaint to persons resident in the Vicinity Where the license Was used; i. e., to persons who presumably would have personal knowledge of violations of the law, or, at least, would have both the opportunity and the incentive to acquire such knowledge. The double legislative purpose disclosed by this provision is, first, that holders of licenses shall not be Open to attack
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
haps, from other states, but only by persons immediately affected. This concerns the makers of the complaint qua complainants. The other purpose is that the authority of the license-granting body shall not be invoked by persons who, having both the incentive and the opportunity to acquire actual knowledge that alone would be of aid in such an investigation, have not seen fit to do so. This concerns the complainants qua affiants. Having this latter purpose in mind, it is incredible that the Legislature provided or intended that the oath by which the facts essential to jurisdiction were to be verified should be the oath of persons who had no knowledge as to the verity or falsity of Such facts. The required oath was intended by its terms to verify; i. e., “to prove to be true,” “to establish the truth of" (Webster's New International Dictionary). It would be fatuous in the extreme for the Legislature, With this object in View, to provide for the making of an oath that could by no possibility verify or possess any element of verification. Statutory jurisdiction must be acquired in the manner prescribed by the Legislature, or it does not exist at all. Under the statutes now before us, the pleas could no more absolve the complainants as affiants from the possession of the knowledge requisite to make them Such than it could absolve them as complainants from the possession of the domicile requisite to make them residents of the township or municipality. Taking, therefore, the complaint and affidavit in the present case as averring that the complainants had personal knowledge of the Commission of the illegal acts specified and Sworn to by them, the question whether Such averment Was in fact true or Whether it was false, and the court through ignorance or design was being imposed upon, became as much a topic for preliminary determination upon the question of jurisdiction as the fact of the residence of the complainants would have been, if challenged in limine, as a ground why the court should not assume jurisdiction. In point of fact, while the latter was not challenged, the former was by a direct offer to prove by the testimony of Witnesses, and by calling the complainants themSelves, that they did not possess any persona1 knowledge of the facts the verification of which by their oath was essential to the jurisdiction of the pleas. Upon this branch of the case, therefore, Our conclusion is that the legal propositions of the prosecutor upon the question of jurisdiction were entirely sound. If the pleas, with this proposition and proffer of testimony before it, had heard the Witnesses and decided, upon the evidence, in favor of its own jurisdiction, a
refusing, however, to hear the proffered testimony, the fact that the complainants did not have the personal knowledge required for the Verification of their complaint was upon familiar principles established for the purposes of the court's action upon the question of its jurisdiction, and the aSSumption of jurisdiction, in view of such established fact, must rest either upon the ground that jurisdiction was conferred by the merely formal presentation of an affidavit that was admittedly untrue, or else upon the ground that jurisdiction Could be taken upOn the Strength of allegations that in legal effect were not verified by the oath of any one, neither of which propositions has any semblance of soundness. The right and duty of a court or of a tribunal that upon the proof of certain facts may assume jurisdiction to determine as a preliminary matter the question of its own jurisdiction is universally established. 11 Cyc. p. 700. “The proof,” said Van Fleet, W. C., in Atlantic Trust Co. v. Consolidated, etc., CO., 49 N. J. Eq. 402, 406, 23 Atl. 934, 935, “in support of a jurisdictional fact must always be clear and convincing, for the court derives its power from the fact, and hence, until the fact is shown to exist, it has no power.” Jurisdiction in fine in Such caseS rests upon the proof of facts, not upon a mere matter of form. The Opinion of Magie, Ch., in the case of Borough of Park Ridge W. Reynolds, 74 N. J. Law, 449, 65 Atl. 990, carries this duty of inquiry as to the truth of jurisdictional facts even further than is necessary for the purposes of the present case. In that Case the Supreme Court had held that the justice to whom the jurisdictional petition of 25 freeholders was presented was not obliged to try and determine the issue raised by the denial of the truth of the facts Stated, Viz., that the petitioners were freeholders. 73 N. J. Law, 116, 62 Atl. 190. The Court of Errors and Appeals in affirming this judgment upon another ground took occasion to say in the opinion above cited: “We are unable to approve the view that the Supreme Court justice Who has directed the investigation may not be required to institute an inquiry into the truth of the affidavit upon which his jurisdiction has been invoked, at least to the extent of discovering whether he has been imposed upon.” If the truth of facts duly verified by the OathS Of perSOnS DOSSessing perSonal knowledge is, when challenged, a proper subject of preliminary determination upon the question of jurisdiction, it follows, a fortiori, that the possession of the personal knowledge essential to the 111aking of the jurisdictional affidavit is likewise a proper subject for such determination.
In the present case, as already pointed out, the facts upon which jurisdiction was challenged were established by the overruling of the offer to prove them, and it is this, among other things, that distinguishes the present case from that of Davis V. Repp, 79 N. J. Law, 394, 75 Atl. 169, in which, as Will be seen by the state of the case, there Was no offer of testimony to prove that the affiants did not possess personal knowledge, but merely a request for permission to CrOSSexamine the complainants who had not been Called Or examined a S WitneSSeS.
The denial Of Such a request Can be Supported on several grounds and had no tendency to establish the facts that raise the jurisdictional question We are called upon to determine.
The conclusion to which the foregoing conSiderations lead uS is that the Order revoking the prosecutor’s license was nugatory beCause the pleas had not lawfully acquired the jurisdiction to hear and determine the COntroVerSy.
Having thus concluded that the pleas was without generic jurisdiction over the controVersy, it is unnecessary to consider the Other reasons which deal With the lack of specific jurisdiction to make the order of revocation because of alleged errors, committed in the course of the proceeding. Attorney General v. Sooy Oyster Co.; 78 N. J. Law, 394, 397, 75 Atl. 211.
The order of the Middlesex pleas revoking the license of the prosecutor is set aside and for nothing holden.
*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. Monroe Carling. Decree for complainant.
W. Holt Apgar, for complainant. Linton
Satterthwait, for defendant.
STEVENS, V. C. This is a suit for diVOrce On the ground of desertion. To the bill the defendant has interposed a plea, in Which it is averred that On December 19, 1904, he had been for more than Six months a bona fide resident of South Dakota; that on that day he filed in the office of the cirCuit Court of the Second judicial district, County Of Lincoln, State Of South Dakota, his complaint for divorce from complainant on the ground of extreme cruelty; that by the law of that State divorce may be granted on that ground, but not unless the plaintiff has been a bona fide resident for at least Six months next preceding the commencement of the action; that no answer, demurrer, or appearance had been put in by defendant; and that after a hearing the court, on January 30, 1905, adjudged a divorce a vinculo between the parties. The sole issue is whether this adjudication constitutes a bar to the present proceeding. The COntention is that the decree Was obtained by the fraudulent representation that the defendant Was a bona fide resident Of Dakota.
 The parties were married July 11, 1895. The defendant is a physician, 38 years old. Prior to June, 1904, he and his wife had been living With defendant’s mother at 230 South Clinton avenue, Trenton, N. J. They had quarreled a good deal, and defendant had, according to the weight of the evidence, offered complainant $2,000 if she would leave his mother's house, and let him bring a suit for desertion. This she refused to do. About June 10, 1904, or a few days prior thereto, he left Trenton and went to Sioux Falls, S. D. He first lodged with a Mrs. Clark and then With a Mrs. Phillips. Mr.S. Phillips says he came to her house on July 23, 1904, and that he roomed there until the following March; that he did not stay away any length of time, except on One occasion, for a Week Or two, when he went to Philadelphia. In March, 1905, probably, he went to Denver, in the State of Colorado, and in May or June of that year Was awarded a
certificate, authorizing him to practice medi
cine there. He took an appointment in the University of Denver as an assistant eye Surgeon, and resided and voted in Denver until December 24, 1909, when he returned to Trenton, where he is now residing. The bill in this case was filed on July 25, 1906. A plea was filed on October 26, 1906, and an amended plea. On October 5, 1907. The defendant married again. On November 13, 1907. He appears to have done so with full knowledge that the suit was pending. The question is Whether he was a bona fide resident of Dakota for the six months prior
gan Suit. The divorce was granted on January 30, 1905.  He appears to have left New Jersey With the intention of staying in the West for an indefinite time. He wanted to get away from his wife, and to be divorced from her. He doubtless thought that he could not get a divorce here, and that he could get one in Dakota. The mere fact that he went there With that as the predominant purpose would not have prevented him from getting a valid divorce there, provided he went animo manendi. Such was the decision in Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533. But, as WaS Said in that case, if a person go “With the avowed object of living [there] to secure a standing on which to found a judicial proCeeding, a Violent presumption Would arise that the animus of remaining was not definite, but was largely determinate upon the termination of Such procedure, and that an actual and bona fide residence had not been obtained.” In Magowan v. Magowan, 57 N. J. Eq. 324, 42 Atl. 330, 73 Am. St. Rep. 645, it was said by Chief Justice Gummere: “He [Magowan] says that his purpose in going to Oklahoma was to become a resident, but it is very clear that if such was his purpose he failed to accomplish it. To effect a change of domicile, not only must the residence at the place chosen for the new domicile be actual, but to the factum Of residence there must be added the animus manendi.” I think these quotations are applicable to the present Situation. The doctor resided in Dakota for the statutory period, but not, as the evidence shows, animo manendi. He had no relatives, friends, or business acquaintances in Dakota. He had made no business or professional arrangement before going. He says that on his arrival in Sioux Falls he made application to the president of the State board, Who allowed him to practice tuntil he could pass that board, which he Inever t00k the trouble to do. He took a temporary position at Castlewood, a prairie Village of three or four hundred inhabitants, to Supply temporarily the place of one of the tWO doctors Who practiced there; but it is evident from the testimony of his landlady, Mrs. Phillips, that this practice was not very engrossing. His other occupations Consisted in playing golf and in doing some optical work in Sioux Falls. The fair inference from his OWn testimony is that he had no fixed intention of remaining. In his examination in chief, he says: “My intention was to go there and get 160 acres of land in the ROSebud Indian reserWation at $1.25 per acre, which was opened by the United States government at that time, for which I did make an application, and I had a little interest elsewhere in South Dakota, and—do you want to know anything more? Q. Yes; What was you intention in going out there? A. Well, that was my intention to go into this land business and my mining interest.”