Morris & Cummings Dredging Co. v. Mayor of Bayonne ( 1908 )

Per Curiam.

The record returned with the writ of error in this case shows that the proceedings below consisted of a rule to show cause why a writ of mandamus should- not issue requiring the city of Bayonne and the members of its common council, plaintiffs in error, to apportion certain arrears of taxes on lands of the prosecutors; a stipulation of facts in lieu of depositions pursuant to such rule; a further rule of the Supreme Court making the rule to show cause absolute and directing that a peremptory writ of mandamus issue; and the writ itself.

It was decided by this court as long ago as I860 that error would not lie in such a case. This rule was reaffirmed in American Transportation Co. v. New York, Susquehanna and Western Railroad Co., 30 Vroom 156, and in Paterson v. Shields, Id. 426.

The proceedings are reviewable in error if, on an issue of fact or law, final judgment is given. Pamph. L. 1903, p. 381, § 4. The practice in such case is indicated and its history given in the opinion of the late Mr. Justice Dixon, in Kenny v. Hudspeth, 30 Vroom (at p. 527 et seq.). And by the Mandamus act, where the constitutionality of a'statute is the main issue involved, error will lie even if there is no judgment. Pamph. L. 1903, p. 381, § 6. Neptune Township v. Mannion, 44 Vroom 816.

In the present case, however, as in the case of Paterson v. Shields, supra, no such constitutional question is raised; nor is there any issue framed upon pleadings.

The writ of error will therefore be dismissed.

For dismissal—The Chibe Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill, J.J. 15.