Finn v. Mun. Council Of City Of Clifton.
| Decision Date | 10 February 1947 |
| Docket Number | No. 17.,17. |
| Citation | 136 N.J.L. 34,53 A.2d 790 |
| Parties | FINN v. MUNICIPAL COUNCIL OF CITY OF CLIFTON. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Court.
Certiorari and mandamus proceedings by Thomas F. Finn against the Municipal Council of the City of Clifton involving issuance of a permit for a gasoline station. From judgment, 46 A.2d 443, dismissing writ of certiorari and discharging an order to show cause why a writ of mandamus should not issue, relator appeals.
Judgment reversed.
Aaron Heller, of Possaic, for prosecutor-relator-appellant.
John G. Dluhy, of Clifton, for respondent-appellee.
The prosecutor appeals from the action of the Supreme Court in dismissing a writ of certiorari and in discharging an order to show cause why a writ of mandamus should not issue, for the reasons that the court below ‘did not pass upon the legal questions presented’ and ‘the ordinance which was the subject matter of attack was actually void.’
The prosecutor admits ‘there may be some question as to the right of the relator to appeal directly to this court upon the dismissal of the rule to show cause why a peremptory writ of mandamus should not issue.’ R.S. 2:83-15, N.J.S.A., provides that ‘where a rule to show cause why the writ should not be issued is discharged as the legal consequence necessarily resulting from a determination by the court as the constitutionality of any statute, * * * the relator may * * * take an appeal to remove the proceedings' to this court. In addition to the fact that the constitutionality of a statute is not before us for consideration, the record does not reveal any order permitting the molding of the pleadings in the mandamus proceedings so as to present an appealable judgment.
Mr. Justice Bodine, speaking for this court in Intrastate Oil Co. v. Board of Commissioners of City of Orange, 111 N.J.L. 354, 168 A. 269, said that: ‘Since the constitutionality of a statute is not involved, the Supreme Court's refusal of mandamus is not reviewable in this court.’ Reed v. Board of Canvassers of County of Essex, 119 N.J.L. 115, 194 A. 280, states the same rule of law.
Having disposed of the mandamus appeal, we now proceed to the consideration of the meritorious question presented on cortiorati.
The prosecutor Finn is the lessee under a written lease for ‘property located at the corner of Market Street and Allwood Road, Clifton, New Jersey.’ Finn made application to the respondent Municipal Council ‘for a permit to install four 550 gallon gasoline tanks,’ on the property in question. The application was denied by the Municipal Council. Subsequently, Finn applied for and was allowed a writ of certiorari, which was dismissed, and obtained a rule to show cause why a peremptory writ of mandamus should not issue, which was discharged.
The prosecutor Finn challenges the ordinance as ‘void and for that reason the prosecutor-relator was entitled to the permit sought.’ The respondent argues that the ordinance under attack ‘is a valid regulatory provision.’
The respondent contends that the writ of certiorari did not bring up for review the zoning ordinance upon which the action of the governing body is predicated. The ordinance is included as part of the agreed stipulation of facts and we think the parties are entitled to a determination of the fundamental issue of the validity of the ordinance in question, which the respective parties treat as a zoning ordinance. Payne v. Borough of Sea Bright, 187 A. 627, 14 N.J. Misc. 756; Brown v. Terhune, 125 N.J.L. 618, 18 A.2d 73.
The respondent also contends that, at the time of the application for the requested permit, the Petroleum Holding Co. was the owner of the land and as such owner did not consent to the granting of the permit sought by the prosecutor. The prosecutor's written lease contains the requisite consent for Finn ‘to make application to the City of Clifton for the necessary permits to engage in the gasoline station business' and further provides that, in the event of a refusal by the City to grant the requested...
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