Trustees of Rutgers College v. Morgan

60 A. 205, 71 N.J.L. 663, 42 Vroom 663, 1905 N.J. LEXIS 163

Opinions

Per Curiam.

Saving in one respect, the opinion of Mr. Justice Van Syckel, in the Supreme Court, states the grounds upon which the judgment of that court is affirmed. Only in regard to the decision that the mandamus should issue against the comptroller regardless of the conditional restriction imposed upon the state treasurer hv the proviso of the act of March 31st, 1890, do we differ from the conclusions of the learned justice. In our view, the comptroller should not be compelled by mandamus to do a nugatory act, and we think that it was within his sound discretion to withhold his warrant upon .the state treasurer until in orderly course it could be honored.

There is also an- intimation in the opinion of Mr. Justice Van Syckel that seems to us to express a doubt where we entertain none, viz., his suggestion that the act of April 7th, 1903, might be regarded as an amendment to the act of March 31st, 1890. We think .it is clear that it could not be so regarded, and that the correct view of the later act is that expressed in the other suggestion of the learned justice, viz., that it was the substitution of a legal mode of payment for the illegal one adopted by the act of March 31st, 1890.

With these emendations, the opinion delivered in the Supreme Court states the grounds upon which the judgment of that court is affirmed.