73 N.J.L. 816 | N.J. | 1907
Tbe record brought here by this writ of error, so far as is disclosed by the printed case, exhibits a rule to show cause, issued out of the Supreme Court upon an affidavit (which is not printed); a stipulation between the attorneys of relators and the attorneys of respondent; a per curiam memorandum of the Supreme Court, and an order entered thereon discharging- the rule, with costs.
The rule required respondent to show cause why a mandamus should not issue against him.
The refusal by the Supreme Court of a mandamus, and its discharging a rule to show cause why a mandamus should not issue, is not reviewable on error (Layton v. State, 4 Dutcher 575; American Transportation Co. v. New York, Susquehanna and Western Railroad Co., 30 Vroom 156; Paterson v. Shields, Id. 426), except in cases covered by the amendment to the Mandamus act, which is to be found in its original form in 2 Gen. Stat., p. 2002, § 13, and which is produced in a condensed form in section 6 of the Mandamus act of 1903. Pamph. L. 1903, p. 381. Those cases in which a review by writ of error is granted are limited by the terms of the amendment to eases decided in the Supreme Court upon the constitutionality of a statute. The legislation was thus applied in this court in Cooper v. Springer, 36 Id. 594.
The printed case does not show the reasons filed in the Supreme Court, and we are 'therefore unable to discover whether they involve the constitutionality of the act.
But if so, the per curiam opinion in the Supreme Court shows that the judgment of the court was based solely on the non-applicability of the act relied on by the relators to obtain the compulsory writ of mandamus. In our judgment, there is no case for review, and the writ of error must be dismissed.
