Mayor and Common Council of City of Newark v. Fordyce

• Decision Date: 09 March 1916
• Citation: 97 A. 67,88 N.J.Law 440
• Parties: MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al. v. FORDYCE et al., Civil Service Com'rs.
• Court: New Jersey Supreme Court

97 A. 67

88 N.J.Law 440

MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al.

v. FORDYCE et al., Civil Service Com'rs.

Supreme Court of New Jersey.

March 9, 1916.

Proceedings by the Mayor and Common Council of the City of Newark against Alexander R. Fordyce and others, Civil Service Commissioners, for a writ of certiorari to review the action of defendants in demoting firemen. Writ dismissed.

Argued November term, 1915, before GARRISON, TRENCHARD, and BLACK, JJ.

Harry Kalisch, of Newark, for prosecutors. Herbert Boggs, Asst. Atty. Gen., for Board of Civil Service Com'rs. Frank E. Bradner, of Newark, for M. J. Durkin.

GARRISON, J. The prosecutors of this writ of certiorari are the city of Newark and its board of fire commissioners. The writ directs the civil service commissioners to certify to this court their action adjudging that a certain resolution of the board of fire commissioners reducing five battalion chiefs to the rank and salary of captains was without legal power. The return certifies the opinion of the civil service commission to the foregoing effect based upon an opinion of the Attorney General. This opinion of the civil service commission cannot be reviewed upon certiorari.

"A writ of certiorari will not lie to revise or correct erroneous opinions, however hurtful they may be to individuals concerning whom they are expressed. An order, judgment, or determination affecting the rights of the prosecutors is necessary as a foundation for the use of the writ." Watson v. Medical Society, 38 N. J. Law, 377; Drake v. Plume, 44 N. J. Law, 362; Livingston v. Trinity Church, 45 N. J. Law, 230.

The interest of the prosecutors in the opinion of the civil service commission is that it is at variance with that upon which the board of fire commissioners acted in demoting the five chiefs, and by this writ we are in effect asked to decide which opinion is correct.

"The writ of certiorari cannot be used to draw judicial opinions in advance or to affect adjudications of subordinate tribunals." Hoxsey v. Woodruff, 39 N. J. Law, 72.

So far as the opinion of the civil service commission is concerned, the writ must be dismissed.

The return also brings up the following resolution:

"Resolved, that the refusal of the president of the commission to certify to the pay roll of the five battalion chiefs, to wit, Thomas S. Reilly, Charles C. Storch, James Fagan, Jr., Michael J. Durkin and Cornelius Smith, listed as captains for service from June 15th to July 31...