On February 2 the Court of Errors and Appeals of this State declared the Van Ness Prohibition Enforcement Act unconstitutional. This decision reverses the Supreme Court in the three test cases involving the constitutionality of the Enforcement Act and sets aside the opinion written in the lower Court by Mr. Justice Minturn, presumably concurred in by Justices Trenchard and Bergen, who heard the argument below. Had they sat in the full Court there would have been so close a division that the Court would have stood, as we see it, almost even.
The news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. The newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the Act was overthrown. Says one newspaper:
"On the question of a jury trial, the Justices found that the denial of it was proper, six votes to five. That the Act was not unconstitutional in describing as a misdemeanor what the Federal Volstead Act describes as a crime, the Court agrees six to six, which upholds the Act. On the two questions of whether the Act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the Court upholds it nine to two. In other words, each one of these features is in itself constitutional. But there are eight Justices who disagree with it on one point or another and only four who found nothing to disagree with. Therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. In other words, the Act will not stand as it is."
Chancellor Walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the Act was defective. Among other things he said:
"It is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. No one can be put upon trial before a traverse jury in New Jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)."
Chief Justice Gummere's opinion was concurred in by Justice Swayze and Judges Gardner, Ackerson and Van Buskirk. It approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the Eighteenth Amendment, the State had to surrender part of its police power to the Federal Government, and therefore was bound to legislate in conformity with the Volstead Act, which, passed under authority of the Federal Constitution, becomes the supreme law of the land.
Justice Kalisch held that the supreme law of the land, embodied in the Volstead Act, having made certain offenses a crime, it was not within the power of the State to classify them as petty offenders.
Consideration was given by Judge White to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. As to the first objection, that relating to the right of trial by jury, Judge White said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed.
"The offense must be a petty and trivial violation of regulations established under the police power of the State in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." It must, of course, Judge White said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the State Constitution which prohibits cruel and unusual punishment.