Ryer v. Holland

156 A. 376, 9 N.J. Misc. 1081, 1931 N.J. Sup. Ct. LEXIS 142

• Court: Supreme Court of New Jersey
• Decided: October 10, 1931
• Status: Published

Opinion

Per Curiam.

The relator has presented, on notice, a petition and affidavits, and asks for a writ of mandamus requiring the city clerk of Jersey City to forthwith call an election at which there shall be submitted to the voters the question of the adoption or rejection of the act known as the Municipal Manager Form of Government act. Pamph. L. 1923, ch. 113.

Prom the affidavits submitted, both by the relator and respondent, it is clear that the respondent has refused to call the election because, he asserts, the number of qualified persons rquired by the statute did not sign the petition for such election, and, perhaps, for other reasons.

In this posture of affairs, we conclude that the application must be denied. We think that the cases of Haines v. Standoven, 91 Atl. Rep. 804; Ford v. Gilbert, 89 N. J. L. 482; Finnegan v. McDonald, 133 Atl. Rep. 785; Cusack v. Edge, 139 Id. 727, and Balm v. Cape May, 127 Id. 88; affirmed (Court of Errors and Appeals), 127 Id. 923, are directly in point and controlling.

In Haines v. Standoven it was said:

“The clerk may have committed errors either in the method of investigation pursued by him or in the conclusions reached by him; but such errors cannot be reviewed or' corrected by the writ of mandamus.”

These cases further hold that certiorari is the proper remedy to review in such cases, and that if the remedy by certiorari results in setting aside the decision of the clerk and he persists thereafter in his refusal, then mandamus is available to enforce obedience.

The application is denied and the writ of mandamus refused.