77 N.J.L. 290 | N.J. | 1909
The opinion of the court was delivered by
The only precedent I have been able to find for a writ of certiorari in a case of this character is Stephany v. Liberty Cut Glass Works, recently decided by this court and reported in 47 Vroom 449. In view of that decision it was proper for me to allow this writ to review a resolution of a board of directors of a private corporation removing the prosecutor from the office of secretary. That case seems to have been undefended and the question as to the propriety of the remedy could not have been called to the attention of the court. In the present case the proceedings are challenged by the defendants and I am confronted with the necessity of deciding the question.
Cook refers to the use of mandamus and quo warranto in such cases, but says nothing of the use of certiorari. Cook Corp., § 617.
In our own state, liberal as we have been in the use of this writ, we have frequently had occasion to call attention to the circumscribed character of its use even in the case of public municipal corporations, and it seems to be now settled that certiorari is not the proper remedy where the office is already filled. Its use in the case of private corporations seems to have been limited to acts of the private corporation which were judicial in character; thus, in Elder v. Medical Society of Hudson County, 6 Vroom 200, proceedings to punish the prosecutor for unprofessional conduct as a physician were reviewed, but this was upon the ground that the society was a special statutory tribunal whose adjudication might affect the prosecutor’s rights, and the writ of certiorari in that case was in the nature of a writ of error. In the later case of Watson v. Medical Society of New Jersey, 9 Id. 377, Mr. Justice Depue was careful to call attention to the distinction between quo warranto and mandamus and certiorari. He said: “It is doubtful, at least, whether certiorari, which tears down, but does not build up—which, if successfully prosecuted, would vacate the resolution without ousting the sitting members or admitting the rejected claimants, is an appropriate remedy.” Subsequently, in Lehmann v. Hudson County Republican Committee, 33 Id. 574, the court refused to concede the power or duty of this court to intervene in a controversy of the character there presented. In the present case the proceedings are not judicial in their character; the directors whose title is
I should, of course, not reach this result if I thought I was departing from anything that has actually been decided by the court, but I do not feel bound merely because the court in an uncontested case has failed to consider an objection to procedure. Under the circumstances the writ should be dismissed, but without costs.
In view of the Stephany case, it was proper to apply for the writ, and the only way open for final review of the question was to allow the writ and have judgment entered thereon.