SUPREME COURT OF NEW JERSEY.

KOCH V. VANDERHOOF.

June 10, 1887.

JURISDICTION-ACTION FOR PENALTIES - COURT FOR TRIAL OF SMALL CAUSES. In the legislation of this State concerning the jurisdiction of courts for the trial of small causes and district courts, the phrase "every suit of a civil nature at law" does not embrace actions for statutory penalties.

DISTRICT COURT OF NEWARK.

The district courts of the city of Newark have no general jurisdiction over actions for statutory penalties beyond $100.

On certiorari to the Essex common pleas, on appeal from the second district court of the city of Newark.

Argued February term, 1887, before Justices KNAPP and DIXON. Samuel Kalish, for prosecutor in certiorari. F. M. Olds, for defendant in certiorari.

DIXON, J. We have not found it necessary to decide the important question argued in this cause, touching the constitutionality of "An act to prohibit the manufacture and sale of impure and imitation dairy products," approved May 5, 1884-P. L. 1884, p. 289 and its amendment, approved March 18, 1885 - P. L. 1885, p. 108 for the reason that we think that the court in which this action was brought was not entitled to take cognizance of it.

The suit was instituted January 20, 1886, for a penalty of $200, given by the amendatory statute just mentioned for a violation of the provisions of the earlier act, "to be recovered by any person who may sue for the same in any court of competent jurisdiction." The plaintiff having chosen as his forum one of the district courts of the city of Newark, the defendant insists that those courts have not general jurisdiction of actions for penalties to the sum of $200, and hence had no authority to entertain this action.

These courts were created and their original jurisdiction was conferred by "An act to establish district courts in the city of Newark," approved March 4, 1873. P. L. 1873, p. 245. Under that statute, they were invested with "the civil jurisdiction theretofore exercised by or conferred upon justices of the peace, within the corporate limits of the city of Newark, under and by virtue of an act entitled' An act constituting courts for the trial of small causes,' approved April 16, 1846, and the various supplements thereto," and other enumerated statutes, and were also invested with exclusive jurisdiction "in all civil cases arising under any of the above-recited acts," where both parties reside in Newark. At the passage of this enactment, March 4, 1873, the jurisdiction of justices of the peace, under the act constituting courts for the trial of small causes and its supplements, extended to every suit of a civil nature at law, where the debt, balance or other matter in dispute did not exceed the sum or value of $100," except some speci fied actions-Nixon Digest, 458, § 1; and also extended to every

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suit for a "sum of money, or penalty, not exceeding $100, to be sued for and recovered by virtue of any law of this State, in any court of record, or in any court having cognizance thereof." Nixon's Digest, 469, 65. We are of opinion that the jurisdiction conferred upon justices of the peace by both of these sections of the small causes court act was included in the "civil jurisdiction "granted to the district courts under the before-mentioned act of March 4, 1873. Actions for penalties are civil actions - Campbell v. Board of Pharmacy, 16 Vr. 241— and, therefore, should be regarded as embraced within a legislative grant of "civil jurisdiction " unless the legislature has evinced a design to exclude them from the grant. No such design appears in the law creating these district courts.

The inquiry next to be made is, whether this jurisdiction over suits for penalties to the amount of $100 has been enlarged so as to cover penalties of $200.

Two statutes must be considered, one "An act concerning the district courts of cities in this State created by special statute," approved March 20, 1878-P. L. 1878, p. 162 -- which extends the jurisdiction of such courts to "every suit of a civil nature at law in which the debt, balance or other matter in dispute does not exceed the sum or value of $200;" the other, "An act relative to the jurisdiction and practice of district courts in this State," approved March 27, 1882-P. L. 1882, p. 195 which extends their jurisdiction to "every suit of a civil nature at law, in which the debt, balance, damage or other matter in dispute does not exceed the sum or value of $300." The question arising on these enactments is, whether the extensions embrace suits for penalties?

Looking at them abstractly it would appear that, nowadays at least, the words "every suit of a civil nature at law" include an action for a penalty, for such actions are deemed of a civil nature. But in the interpretation of statutes words are not to be regarded abstractly, but are to be considered in conjunction with, not only the context of the same enactment, but also other statutes in pari materia. Said KINSEY, Ch. J.: "In the construction of the acts of the legislature, it has ever been held a sound and wholesome rule, that when divers laws are made relating to one subject, the whole must be considered as constituting one system and mutually connected with each other. Another rule is, that when the legislature have made use of a particular expression, and given to it a plain and precise signification, the same word, when used in other proceedings, ought, unless the contrary appears manifestly right, to receive the same construction. It is unreasonable to presume that the legislature intended by the same words to convey different ideas." White v. Hunt, 1 Halst. 415. See, also, Rudderow v. State, 2 Vr. 151, 512; Trustees of Public Schools v. Trenton, 3 Stew. 667, 686.

Following the suggestions of these principles, then, we find that for nearly a century before these statutes, this form of expression, "every suit of a civil nature at law," had been employed by the legislature in granting jurisdiction to courts for the trial of small causes and to the district courts which in part supplanted them. It first appears in "An

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act constituting courts for the trial of small causes," passed March 15, 1798 - Paterson Laws, 313, § 1-then in a supplement passed November 30, 1801- Bloomfield Laws, 73-next in the act of the same title, passed February 12, 1818 Elmer Digest, 275, § 1-afterward in the revisions of 1846 and 1874; and finally in "An act constituting district courts in certain cities in this State," approved March 9, 1877-P. L. 1877, p. 234 — and its supplement, approved March 20, 1878-P. L. 1878, p. 148. This frequent use of a uniform phrase during so long a period indicates that, in legislative contemplation, it expresses a precise idea, and devolves upon the courts the duty of ascertaining that idea, and giving to the same words, when found in statutes of similar character, a like interpretation.

The idea which these words have been used to convey is, I think, quite clearly one exclusive of actions for sums of money or penalties recoverable by virtue of statutes. This is evinced by the fact that, in the enactments before cited, there was expressly conferred the right to take cognizance of suits for the recovery of "every sum of money, or penalty, to be sued for and recovered by virtue of any law of this State," outside of the grant of jurisdiction over "every suit of a civil nature at law." See act of March 15, 1798, § 42; act of February 12, 1818, § 45; act of April 16, 1846, § 65; act of March 27, 1874, § 5; act of March 9, 1877, § 10. Although it occasionally happens that statutes are tautological, repeating the same thought in different language, yet this generally springs from inadvertence and under the primary rule of giving effect when possible to all parts of a statute, is admitted by the courts to exist only in cases where that conclusion is fairly inevitable. Where, as in the present instance, such tautology is alleged, not of individual words only, but of two distinct sections, conjoined, not once merely, but over and over again, not simply in original enactments, but, also, in several revisions designed to prune and harmonize the law, the presumption against its existence becomes very great. If any reasonable construction can be found which will exclude it that should be adopted. Such a construction is not hard to discover. We have but to assume that the legislature had in mind three classes of suits; private suits for private wrongs; private suits for public wrongs; and public suits for public wrongs; and that by "suits of a civil nature," it meant only suits of the first class, and then both sections in all of these statutes become significant. Such an assumption is entirely reasonable; for, while the term "civil" may be applied to the form of litigation in contradistinction to that which is criminal, it may, also, with propriety, be applied to the nature of litigation, as growing out of the relations of citizens inter sese, rather than their relations to the State. Blackstone says, private wrongs are frequently termed civil injuries; "suits of a civil nature," then may aptly have been used to denote remedies for such wrongs.

Our conclusion, therefore, is that in these statutes passed at various times from 1798 to 1878, the phrase "every suit of a civil nature at law " was intended by the legislature not to include actions for statutory penalties, and that the same phrase, when used in the statutes of 1878 and 1882, now before us for construction, must receive the same interpretation.

Hence it follows that the district courts of the city of Newark have no general jurisdiction over actions for penalties beyond $100, and could not lawfully entertain this suit.

The judgments below must be reversed.

PLEADING

WATERS V. HAYNES.

June 10, 1887.

AMENDMENT-COMPLAINT IN FORCIBLE ENTRY AND DETAINER. When a complaint made under the provisions of the forcible entry and detainer act was, on application of the complainant, allowed to be amended so as to substantially change an allegation material to be charged and proved to justify a judgment for possession, such a judgment cannot be sustained.

On certiorari bringing up proceedings and judgment under the forcible entry and detainer act.

Argued at February term, 1887, before Justices VAN SYCKEL and MAGIE.

Mr. Huffman, for prosecutor. Mr. Edmunds, for defendant.

MAGIE, J. The return to this certiorari shows a proceeding under the "act concerning forcible entries and detainers"-Rev. 439-instituted by the defendant Haynes against the prosecutor Waters, before an alderman of the city of Cape May, being ex officio a justice of the peace of the county. It thereby appears that after a trial and verdict. of a jury, judgment restoring Haynes to the possession of the house and land specified in his complaint was rendered.

It is apparent from the return that the real case intended to be made by Haynes against Waters was this, viz.: That Haynes had demised the premises in question to Joseph Vance and George Turner, for a term expiring May 1, 1886; that Vance and Turner had permitted the prosecutor, Waters, to hold the premises under them, and that Waters, after the expiration of the term, held the premises willfully and without force, and after demand and notice in writing given by Haynes for the delivery of possession.

If such a case had been charged and proved it is plain that Waters was guilty of an unlawful detainer under the provisions of section 5. But the case shows that in the course of the trial it was discovered that the complaint made by Haynes had erroneously stated that Haynes' demise was made not to Vance and Turner, but to Vance and the prosecutor, Waters, while it also stated that Waters held during the term of Vance and Turner. Upon this discovery application was made to amend the complaint, and such an amendment was allowed against the objection of prosecutor. A like error seems to exist in the summons, but no amendment was asked for.

It has been settled that no power has been conferred on justices of the peace to make amendments in proceedings under this act. Wilson v. Bayley, 13 Vr. 132. Such a complaint, therefore, was held in that case to remain in legal contemplation unamended. The amendment before the court in that case related to a matter respecting which no proof was required to be given. The allowance of the amendment, therefore, produced no effect, and was held not to justify any presump

tion that the case of the complaining owner was not duly proved. But in this case the amendment affected a part of Haynes' case material to his success. It must be presumed that his evidence proved the amended complaint. But since the amendment was futile, and the complaint must be treated as unamended, it evidently results that the original complaint was neither tried nor proved. The result is that the judgment cannot be sustained, but must be reversed.

I reach the result with reluctance, for it seems clear from the case that the real question between the parties was tried, and I can perceive no good reason why the power of amendment, liberally granted to other courts, and even to magistrates of this sort when sitting in the court for the trial of small causes, should not also be granted to courts presiding over such proceedings. But I can discover no legislation conferring such power in this class of cases, and, in the absence of legisla tion, it is clear that the power does not exist.

Atlantic City passed two ordinances, under which it entered into a contract with a company organized under the "act for the construction, maintenance and operation of water-works for the purpose of supplying cities, towns and villages of the State with water," approved April 21, 1876. Rev. 1365. The city was thereby to pay a specified sum for water for certain public purposes for an indefinite period. An information was filed in the name of the attorney-general to set aside the proceedings for fraud. Before a judicial determination of that suit, the ordinances were repealed. The company completed their works, but took no steps to enforce the contract for some time. When the company brought an action against the city upon the contract, prosecutor, a tax payer in the city. applied for a certiorari, which was allowed. Held, that neither the city nor a tax payer was estopped from contesting the authority of the city to take the proceedings in question, and that the writ was properly allowed if applied for within a reasonable time after it had become apparent that by the proceedings a burden might be imposed on tax payers.

MUNICIPAL CORPORATION - RESTRICTING INDEBTEDNESS.

By the law governing the city it was enacted that the debt of the city should never exceed $35,000. When the proceedings in question were taken, the city debt at least equaled that sum, and no provision was made to raise by taxation the amounts the city could be called on thereby to pay. Held, that the obliga tion thus incurred by the city was within the meaning of the provision limiting the city debt, and was prohibited thereby.

Certiorari bringing up proceedings of Atlantic City and a contract . between said city and the Atlantic City Water Works Company. The facts appear in the opinion.

Argued at February term, 1887, before Justices VAN SYCKEL, PARKER and MAGIE.

Mr. Potter, for prosecutor. S. H. Gray and P. L. Voorhees, for defendants.

MAGIE, J. Two ordinances of Atlantic City have been brought here by this writ.

The first, entitled "An ordinance to provide a supply of water for