172 A. 522 | N.J. | 1934
Under this writ we are asked to review the adjudication of Judge Stein, sitting as a special statutory tribunal, wherein he directed that the conviction of defendant Carmichael for violation of an ordinance of the town of Westfield be set aside and for nothing holden. There are several acts providing for such review, but it is sufficient to cite the act of 1908 (Pamph. L.,p. 442) reprinted in Comp. Stat. (at p. 1868), as pl. 145 b. The last sentence of this statute contemplates "the discharge of the person so convicted from custody;" but in Minochian v.Paterson,
The municipality by this writ of certiorari now attacks this adjudication of Judge Stein. What it can gain by such an attack, even if it be successful, is not plain to us. As to Carmichael, the only party really interested, the ordinance was enforced, prosecution made thereunder, conviction had, penalty imposed, and sentence served. It may well be asked what object Carmichael could legally attain by the summary review. If he had paid his fine under protest, brought certiorari and obtained a judgment that he be "restored in all things wherein he hath lost," he might perhaps have had his money back by writ of restitution.Bess. L. Prec. 196, 198; Sharp v. Moore, Penn. [*]966;McChesney v. Rogers,
It may not be out of place to remark in passing that on the merits of the validity of the ordinance, the decision of Judge Stein seems supported by excellent authority in this state. The ordinance provides that "no person not a resident of the town of Westfield shall canvass," c., without a written permit from the police department. Cases dealing with such discriminatory regulation are: Muhlenbrinck v. Long Branch Commissioners etal.,
The writ will be dismissed, with costs. *4