Usurpation of Treaty, Constitutional and Legislative Power by the Courts
“To alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on [the] part [of courts] an usurpation of power, and not an exercise of judicial functions.” Id. at 135, 109 S.Ct. at 1684 (quoting The Amiable Isabella, 6 Wheat 1, 71 (1821)).
The provisions of the ordinances relating to eviction constitute an illegal usurpation of power beyond the authority of the municipalities. They are therefore set aside as void. Leone Managem’t Corp. v. Bd., Comm’rs West N.Y 328 A.2d 26 (N.J. Super. App. Div. 1974)
“Two justices, in making an order for the removal of a pauper or person likely to become chargeable, exercise a special statutory authority, which must be strictly pursued, or their acts are invalid. Everything necessary to confer jurisdiction must not only be done, but must appear upon the face of the proceedings to have been done. There can be no intendment in support of their proceedings. The case must appear to have been within the scope of their authority, otherwise, their act will be deemed an usurpation of power and their proceedings coram non judice. In such cases there can be no trial upon the merits before the Session. * * * Chittinston v. Penhurst, 2 Salk. 473, 475; S.C., 5 Mod. 149; Rex v. Dobbyn, 2 Salk. 474; Rex v. Stepney, Burr. Sett. Cas. 23.” State v. Rosenblum 126 A. 852 (N.J. 1924)
Unless there is a plain usurpation of power by a court as assessed in the light of circumstances prevailing at the time of judgment, an unappealed civil judgment is not void. State v. American Can Co., 42 N.J. 32 , 38, cert. den. 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36 (1964).
In re Estate of Neuwirth 382 A.2d 972 (N.J. Super. App. Div. 1978) Noting that the Legislature is empowered to “mandate imprisonment for certain crimes, leaving no judicial discretion” We need not, and do not, decide these issues as posed by the parties. Some deal with the question of whether the Program, assuming it is beyond this Court’s power, can nevertheless remain in place by virtue of this Court’s alleged power to foreclose appeals by adopting Rules concerning “practice and procedure.” Even assuming such a power, we doubt that this Court would ever shield a claim of judicial usurpation of power by resort to some other valid power. The underlying, essential claim before us is that this Court does not have the power, through ISP, to sentence first- and second-degree offenders to probationary terms in the face of the Program’s alleged inconsistency with a punishment mandated by the Legislature. We shall address that claim. State v. Cannon 608 A.2d 341 (N.J. 1992)
“But in the next place it was urged, that this requirement fixing the time in which the official oath is to be taken, is not mandatory, but is merely directory. * * * The general rule * * * is, that the prescription of the time in a statute is material, unless an intent is clearly evinced from the nature of the act to be done or the general purport of the law, that it was not so intended. The application of this rule obviously leads to the conclusion that this limit of time in this act is mandatory, and must be submitted to. The whole section is framed for the purpose of giving it such efficacy, and to ask the court to disregard the injunction as to time is, in substance, to ask the court to draw a pen through the entire section. * * * it would be a simple usurpation of power for the court to say that he may enter upon the discharge of such duty upon taking an oath after the lapse of the period designated. The time set is a reasonable one; to conform to it is not even inconvenient; I can see no color of reason for refusing obedience to such a direction.” (Italics ours.) Kohler v. Cobb 157 A.2d 681 (N.J. 1960)
It is entirely clear that the general scope and purpose of the act of 1881 is the same as that of the act of 1875. It clearly withdraws whatever legislative sanction might have theretofore existed for the use, by an individual, of the sovereign prerogatives purchased under decrees of courts, and requires their use by a corporation which is created by the act and which it is intended that the purchasers of the franchises shall organize as an operative concern by the election of its officers pursuant to the act. It is possible that, in the absence of an adjudication of forfeiture, through quo warranto, long delay, upon the part of the person or persons holding the legal title to the franchises, in organizing the corporation pursuant to the act of 1881, will not operate to destroy the right to do so; hut I am entirely clear that, until this shall have been done, any exercise of these franchises by an individual, or by a corporation not created by the act and organized in substantial compliance with the act, is without legislative sanction, and is an unwarranted usurpation of power. If this be true, there can be no doubt of the power of this court to restrain such acts at the instance of the Attorney General. Stockton v. Cent. Ry. Co., 50 N. J. Eq. 52, 78, 24 Atl. 964, 17 L. R. A. 97.
Legislative grants of franchises of the nature claimed by complainant, whether granted by special charters or under general laws, confer privileges which are necessarily exclusive in their nature as against all persons upon whom similar rights have not been conferred, for any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been so conferred. Raritan & Del. Bay R. Co. v. Del. & Rar. Canal Co., 18 N. J. Eq. 546, 569; Pennsylvania R. R. Co. v. National Railway Co., 23 N. J. Eq. 441, 447; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242, 250; Elizabethtown Gas Co. v. Green, 46 N. J. Eq. 118, 124, 18 Atl. 844; Pomeroy’s Equitable Remedies, § 584.
It follows that, if complainant is at this time entitled to exercise in the disputed territory the privileges set forth in the legislative act referred to, and defendant, as claimed, enjoys no legislative sanction for the conduct sought to be enjoined, complainant will be entitled to the relief prayed for. Millville Gas Light Co. v. Vineland Light & Power Co. 65 A. 504 (N.J. Ch. 1906)