Unger v. Inhabitants of Fanwood Tp.
| Decision Date | 08 June 1903 |
| Citation | 55 A. 42,69 N.J.L. 548 |
| Parties | UNGER v. INHABITANTS OF FANWOOD TP. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Certiorari by the state, on the prosecution of Herman Unger, against the inhabitants of the township of Eanwood, to review an ordinance regulating the speed of automobiles. Writ dismissed.
Argued February term, 1903, before VAN SYCKEL and GARRETSON, JJ.
Reed & Coddington, for prosecutor.
Coddington & Swackhamer, for defendant.
VAN SYCKEL, J. The writ in this case brings up for review only an ordinance passed by the township committee of Fanwood regulating the speed of automobiles and providing punishment for its violation. The affidavit upon which the writ was allowed sets up that the prosecutor was arrested for an alleged violation of the ordinance, but the proceedings in that suit are not by this writ certified into this court.
The prosecutor is met with the objection that in this posture of affairs he has no standing to sue out a certiorari. It is the established rule that a right of action does not exist in favor of one who is only damnified as one of the public in common with his fellow citizens. Kean v. Bronson, 35 N. J. Law, 408; Montgomery v. Trenton, 36 N. J. Law, 85; Jersey City v. Traphagen, 53 N. J. Law, 434, 22 Atl. 190; Tallon v. Hoboken, 60 N. J. Law, 212, 37 Atl. 895; Hamblet v. Asbury Park, 61 N. J. Law, 502, 39 Atl. 1022; Kendall Co. v. Jersey City, 65 N. J. Law, 123, 46 Atl. 647. In Hamblet v. Asbury Park, Mr. Justice Garrison, in delivering the opinion of the court, said, "Conviction alone can furnish evidence that the ordinance affects the prosecutor."
The prosecutor's writ is an attack upon the ordinance exclusively, and not upon the proceeding which he alleges has been Illegally instituted against him. For the purpose of arresting the further prosecution of that suit, the writ was prematurely granted. He should have waited judgment in the case before he sued out his writ. He is not within the exception to the rule that certiorari will not be allowed before a final decision is reached in the inferior tribunal. Hoxsey v. Paterson, 39 N. J. Law, 489. Under the present aspect of the case, therefore, the prosecutor has no interest in the validity of the ordinance other than that which is common to all citizens.
But if the validity of the ordinance may be challenged by the prosecutor, is there any infirmity in it? The act of 1899, p. 385, § 32, gives the town committee power to pass ordinances to prevent immoderate driving or riding on any street or highway. Section 22, page 380, gives power to the town committee to prescribe by ordinance a penalty for violating any ordinance by fine not exceeding $100, or by imprisonment in the township lockup or county jail not exceeding 90 days, or by both. Such ordinance may prescribe the amount of fine or term of imprisonment, or it may provide that the justice before whom the proceeding shall be instituted shall determine whether the penalty shall be by fine or imprisonment, and, if by fine, the amount thereof, and, if by imprisonment, the term thereof, within the limits above prescribed. This ordinance was duly passed, and was within the granted power. Section 23, p....
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State v. Zucconi
...33 N.J.Super. 1, 108 A.2d 862 (App.Div.1954); State v. McCarthy, 30 N.J.Super. 6, 103 A.2d 169 (App.Div.1954); Unger v. Fanwood, 69 N.J.L. 548, 55 A. 42 (Sup.Ct.1903). See also City of Newark v. Pulverman, 12 N.J. 105, 95 A.2d 889 (1953); Borough of Ramsey v. Basil, 19 N.J.Misc. 555, 21 A.2......
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City of Newark v. Pulverman
...of Ridgewood, 6 N.J.Super. 414, 416, 69 A.2d 221 (Cty.Ct.1949). These cases involved the payment of fines and in Unger v. Fanwood, 69 N.J.L. 548, 550, 55 A. 42 (Sup.Ct.1903), Justice Van Syckel indicated that if the proceeding was for violation of an ordinance, punishable by imprisonment as......
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Con Realty Co. v. Ellenstein
...cannot be attacked on certiorari by "one who is only damnified as one of the public in common with his fellow citizens" (Unger v. Fanwood, 69 N.J.L. 548, 55 A. 42, 43), a rule was entered herein by consent providing that, in "determining this cause, it shall be assumed that, and the merits ......
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State v. McCarthy
...liberty rather than with those violations, notably of municipal ordinances, which are punishable by fine only. Cf. Unger v. Fanwood, 69 N.J.L. 548, 55 A. 42 (Sup.Ct.1903); Lowrie v. State Board of Registration & Examination in Dentistry, 90 N.J.L. 54, 99 A. 927 Therefore our decisional law ......