Crawford v. Hendee

• Decision Date: 02 March 1921
• Citation: 112 A. 668
• Parties: CRAWFORD v. HENDEE, Mayor.
• Court: New Jersey Supreme Court

112 A. 668

CRAWFORD

v. HENDEE, Mayor.

Supreme Court of New Jersey.

March 2, 1921.

(Syllabus by the Court.)

Certiorari by William S. Crawford against William C. Hendee, Mayor of Wildwood, in Cape May County. Writ dismissed.

Argued February Term, 1921, before PARKER and BLACK, JJ.

Harris & Harris, of Camden, for prosecutor.

Clarence L. Cole, of Atlantic City, for defendant.

BLACK, J. In this case, a certiorari was allowed to review the action of the mayor and director of public safety in the city of Wildwood, in instituting proceedings, charging the prosecutor with a violation of his duties as acting chief of police. The writ was procured before the date set for the hearing of the charges. It was served at the close of the testimony, and before the director had announced his decision. There were two arguments: First, to dismiss the writ, on the ground that its service before a determination by the director was premature, i. e. there is nothing for this court to review; and, second, an argument on the merits. We think the first motion must prevail. The writ must be dismissed, manifestly we having nothing to review.

There seems to be some confusion, when in point of time, the writ of certiorari may be used., When its function is that in the nature of a common-law writ of error, it will not lie before judgments, in cases which cannot be continued and completed by this court, Drake v. Plume, 44 N. J. Law, 362; Elder v. District Medical Society, 35 N. J. Law, 200; Mowery v. City of Camden, 49 N. J. Law, 100, 6 Atl. 438.

But in other cases, it is a discretionary writ, in the absence of any statute requiring it to be granted, and the time for its allowance, as well as other circumstances, is Subject to that legal discretion. Where the object is to review municipal action, especially, if that action is said to be beyond the corporate power, it is a frequent practice for the writ to go, while yet the final step that completes the injury is but threatened. Hoxsey v. City of Paterson, 39 N. J. Law, 493; Public Service Ity. Co. v. City of Camden, No. 47 June term, Court of Errors and Appeals, 112 Atl. 421.

Manifestly in this case, the office of the writ is in the nature of a common-law writ of error. It may not be amiss, however, for us to say on the merits that it was proper and legal for the mayor and director to make and file written charges before himself, to fix a day for the hearing, to take testimony of witnesses in support of the charges, but we...