City of Camden v. Public Service Railway Co.

86 A. 397, 84 N.J.L. 309, 55 Vroom 309, 1913 N.J. LEXIS 168

• Court: Supreme Court of New Jersey
• Decided: March 3, 1913
• Status: Published

Opinion

The opinion of the court was delivered by

Swayze, J.

The Supreme Court made absolute a rule to show cause why a mandamus should not be issued. We have before us only the rule, the agreed facts and the order making the rule absolute. There is no judgment and not even a writ of mandamus. An attempt is made in the assignments of error to raise a constitutional question, but this is not argued. If it were, it could not be considered where there is no final judgment. The statute applies only to cases where the mandamus is denied or the rule discharged. Comp. Stat., p. 3216, § 6.

The more general language in the opinions in Neptune Township v. Mannion, Collector, 44 Vroom 816; Morris & Cummings Co. v. Bayonne, 47 Id. 573, and Matlock v. Lloyd, 53 Id. 739, is to be read in view of the situation presented in those cases, which did not call for the distinction between cases where the rule was discharged and where it was made absolute, since no constitutional question was raised. The writ of error must be dismissed, with, costs. Paterson v. Shields, 30 Vroom 426.