39 N.J.L. 489 | N.J. | 1877
The opinion of the court was delivered by
The Supreme Court, at the instance of taxpayers of Paterson, awarded a writ of certiorari, directed to the mayor and aldermen of the city, by which, after reciting that the court desired to be certified of a certain employment of Absalom B. "Woodruff as counsel for the city, by the com- • mittee on finance of the city, and of the proceedings confirm
On this return, the prosecutors filed reasons for reversal, alleging, among other grounds, that the bills ought not to be paid, because there is a want of all legal power in the city to pay them, inasmuch as, by the charter, the city is to have one counsel, at a salary not exceeding §1500 per annum, and, at the time of Mr. Woodruff’s employment, had such counsel, and therefore neither the finance committee nor the board of aldermen had legal power to appoint him as associate counsel.
On final hearing, the defendants moved to dismiss the writ, on the ground that no conclusive act or adjudication of the city was brought up for review. This motion the Supreme Court granted, and accordingly judgment was entered, dismissing the writ, with costs. That judgment is now, by writ of error, subjected to review in this court.
The opinion filed in the Supreme Court indicates that its decision was reached upon a consideration only of the question whether the action of the city authorities, which strictly
But it is said to be too late to question that employment, services having been in good faith rendered under it. If the objection urged by the prosecutors were only against the regularity of the mode in which a power to employ was exercised, such services might furnish a strong reason for the-court's refusal to interfere. But the objection' goes deeper, and attacks the very ¡tower of the corporation to make the contract. If this objection be good, the employé under such a contract acquires, by reason of his services, no legal claim for compensation against the municipality. In the language of Judge Dillon, (1 Dillon on Mun. Corp., § 381,) “the general principle of law is settled, beyond' controversy, that the agents, officers, or even city council of a municipal corporation, cannot bind, the corporation by any contract which is-beyond the scope of its powers. * * * The duties and
But within the narrower limits by which the opinion of the Supreme Court is confined, I think sufficient grounds appear for not dismissing the writ. The rule applied by that court is, that “ it is not a proper use of the writ of certiorari to intercept and remove for review the steps in a procedure preliminary to a decision or final resolution therein, except when the court issuing the writ can continue the proceedings to completion.” But this rule is not one of universal force. Its operation is properly confined to those cases where the office of the writ is in the nature of that of a writ of error, and when, therefore, its allowance is governed by similar principles. But in other cases, it is a discretionary writ, in the absence of any statute requiring it to be granted, and the time for its allowance, as well as other circumstances, is subject to that legal discretion. Where the object is to review municipal action, especially if that action is said to be beyond the corporate power, it is a frequent practice for the writ to go, while yet the final step that completes the injury is but threatened. State, Danforth, pros., v. City of Paterson, 5 Vroom 163; State, Coar, pros., v. Jersey City, 6 Vroom 404; State Gaines, pros., v. Hudson County Avenue Commissioners, 8 Vroom 12.
It is evident that if a taxpayer, seeking to prevent the unlawful payment of public moneys, must Avait for the final resolution to pay, before interposing the efficacious obstacle
I am therefore of opinion that the Supreme Court rightly exercised its discretion in the allowance of the certiorari, and that its dismissal was, for that reason, erroneous, and should be reversed.
Upon this reversal, a question arises as to the proper practice in this court, whether the record should be remitted to the court below, that it may proceed to a judgment of affirmance or reversal of the corporate proceedings upon the merits, or this court should itself render such final judgment. The case shows that the cause was ripe for final hearing below, and that the judgment of dismissal was given 'upon such hearing. Under these circumstances, this court should not merely reverse the judgment below, but should also render the judgment which ought to have been there rendered, Says Chief Justice Hornblower, in Garr v. Stokes et al., 1 Harr. 403: “ Without question it may now be considered the law of this court, that in all cases where a writ of error has been brought by the plaintiff below, if his errors are well assigned, he is entitled, not only to a judgment of reversal, but to such new judgment as, upon the record, it appears the court below ought to have rendered for him.” The case just cited goes further, and adjudges that when the judgment below is erroneous, and hence is reversed, the appellate court should, nevertheless, render a different judgment against the plaintiff in error, if such judgment be required by the record ; and the following language from Salk. 401, is quoted with approval: “If an erroneous judgment be given, for the defendant, and it is reversed, and the merits appear for the plaintiff, he shall have judgment. If the merits be against the plaintiff, the defendant shall have a new judgment, for they are to reform, as well as to affirm or reverse.” This doctrine, asserted in the King’s Bench so early as the first year of Queen Ann, and tending, as it does, to terminate litigation, should not, at this day, be restricted,
At the hearing, counsel were confined to the discussion of the propriety of the dismissal of the writ. Hence the cause will stand over for final argument upon the merits.
For affirmance—None.
For reversal—The Chief Justice, Dalrimple, Dixon, ScUDDER, WOODIIULL, CLEMENT, GREEN, LlLLY„ Wales. 9.