Essen v. Secretary of State

72 N.J.L. 432, 43 Vroom 432, 1905 N.J. Sup. Ct. LEXIS 72

• Court: Supreme Court of New Jersey
• Decided: June 12, 1905
• Status: Published

Opinion

The opinion of the court was delivered by

Garrison, J.

This writ of certiorari is addressed to the Cape May, Delaware Bay and Sewell’s Point Railroad Company and Samuel D. Dickinson, secretary of state, commanding them to certify to this court a location of a branch route of the said railroad company and a receipt for $650 paid to the state treasurer by said railroad company.

The location in question is filed pursuant to Pamph. L. 1903, p. 650, § 8. The injury apprehended by the prosecutors is that the city of Cape May will, under color of section §4 of said act, permit the defendant railroad company to use Ocean street longitudinally by running over tracks already laid in said street, without first acquiring the rights of the prosecutors as abutting owners. A resolution to this end, passed by the common council of Cape May, has been set aside at this term. If an ordinance to the same effect be passed, the property rights of the prosecutors, if involved, will be sufficiently jeopardized to give them a legal interest in controverting the legality of such municipal action. The mere filing of a location, however, involves no action, municipal or otherwise, that can be reached by certiorari; it is the mere act of the party who files it; doubtless it indicates a desire, possibly a purpose, and involves, incidentally, an opinion as to the legality of the proposed route, but purposes and opinions are not subject to review by certiorari, and cannot be reversed by proceedings taken under that writ.

The writ of certiorari in this case is dismissed, with costs.