137 A. 437 | N.J. | 1927
In this cause a writ of certiorari was allowed requiring Andrew F. McBride, commissioner of labor, to certify to the Supreme Court the order and direction made by him denying the application theretofore made by Rupert Ribnik for a license to carry on an employment agency, pursuant to the statute. As a matter of fact no order was made; but the commissioner of labor in a letter simply admonished the applicant, Ribnik, that he was rejecting the application for a certain reason stated, although he was willing to approve certain parts of the application.
The matter was argued in the Supreme Court without objection to the form of the remedy pursued, and the cause was there decided against the appellant on the merits. He now appeals to this court, where the merits were again argued upon both sides, without any suggestion that the remedy sought was inadequate.
As was said by Mr. Justice Depue in Watson v. MedicalSociety of New Jersey,
In Hamilton Township v. Mercer County Traction Co.,
If the plaintiff here were entitled to have issued to him a license which the commissioner denied, his remedy was bymandamus to compel the issuance of a license. This is a typical case in which a mandamus would build up, and a certiorari would simply destroy, that is, set aside, the decision of the commissioner.
In Ford v. Gilbert,
As already remarked, this cause was submitted to the court below on the merits, which were decided, without objection; and as the same case has been submitted here on appeal, without objection to the form of remedy; and as we are satisfied with the reasoning of the Supreme Court on the meritorious question, the judgment under review will be affirmed, for the reasons expressed in the opinion of the Supreme Court.
If the plaintiff were successful, certiorari in this case would only have the effect of setting aside the decision, as was the ordinance in Ford v. Gilbert, supra; but only mandamus
would give full relief. There is, therefore, no conflict between the case at bar and Allen v. Paterson,
Judgment affirmed, accordingly.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, KALISCH, BLACK, LLOYD, VAN BUSKIRK, McGLENNON, HETFIELD, DEAR, JJ. 9.
For reversal — PARKER, CAMPBELL, KAYS, JJ. 3. *711