On appeal from the Supreme Court.
For the respondent, Lester C. Leonard.
For the appellant, Edward A. Markley.
The opinion of the court was delivered by
CASE, J. The relator, on petition, rule to show cause, stipulation and depositions, was allowed a peremptory writ of mandamus out of the Supreme Court directing the policemen's pension commission of the borough of Belmar to take certain preliminary steps to enable that commission to consider the relator's application for retirement and pension. To allow an appeal to be taken the Supreme Court justice, before whom, sitting alone in chambers, the matter was heard, permitted the pleadings to be moulded, vacated the peremptory writ and ordered counsel for the respondent to prepare an alternative writ of mandamus so framed as upon demurrer the precise questions decided by him for the Supreme Court would be presented on appeal. An alternative writ of mandamus thereupon issued, demurrer was filed, rule overruling the demurrer was entered, and, on order, the moulded pleadings were filed and judgment entered. From that judgment the respondent appeals and writes down nineteen causes.
The alternative writ does not set forth facts essential to withstand a demurrer. It does no more than allege that the borough of Belmar had adopted the provisions of the Policemen's and Firemen's Retirement act (Pamph. L. 1920, ch. 160, p. 324), that section 2 of that act provides in the manner recited, that on May 17th, 1930, the relator wrote the respondent as follows:
"I hereby apply for retirement on pension from the Belmar police department, as provided for in section 2, chapter 160, of the laws of 1920. Will appear for examination by police physician at any time that may be convenient to you, thanking you. Yours very truly, Peter F. Cummings."
And that notwithstanding that letter the respondent failed to call the aid of the physician. There is no allegation that the relator was or had been a member of the police department, that he had suffered any disability either permanent or
temporary, or that he had met with injury or disease. The relator is not brought within the purview of the statute that he recites and therefore he may not summon the respondent to action. The matter of inducement stated in the alternative writ should include everything necessary to show jurisdiction over the subject of the writ and to warrant its mandate, and these facts should be stated with precision and issuably. The affidavits and papers of the relator on which the order for the mandamus is granted form no part of the record, and cannot be used to supply essential facts or be considered in deciding a demurrer. Fairbank v. Sheridan, 43 N.J.L. 82. The evidence upon which the writ issues is not a part of the record. Pleasantville v. Pleasantville Water Co., 76 Id. 343, 347.
The function of a demurrer is, admitting the facts alleged by the alternative writ to be true, to challenge the right of the relator, on those facts, to compel the respondent to proceed further. The demurrer occupies the same relative position to the writ of mandamus as it did, under the old practice, to the declaration in personal actions. Kenny v. Hudspeth, 59 N.J.L. 504, 530. Its office is not to allege facts. The demurrer in the instant case, under the guise of setting out causes of demurrer, improperly undertakes to set up a series of facts which are in the nature of a defense by way of confession and avoidance and would properly appear in a return; as, for instance, that the relator was discharged from the police force for cause and on charges.
Stipulations appear in the printed book wherein counsel for the parties say that "the pleadings as now moulded are the result of an honest attempt on the part of the attorneys for both parties to so mould the pleadings that an appeal may be taken" and that the evidence taken under the rule and also the written report of a physician are to be considered by the Court of Errors and Appeals in determining whether or not the judgment of the Supreme Court is to be affirmed. Counsel undertake to set up a novel practice. They ignore ...