For the prosecutor, William Newcorn.
For the respondents, John F. Ryan and Edmund J. Kiely.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
CASE, J. Timothy O'Driscoll, a police officer of the city of Plainfield, was subjected to written charges of misconduct, was tried thereon, convicted thereof and thereupon dismissed
by the mayor and council of the city. O'Driscoll appealed from the municipal findings to the Court of Common Pleas of the county of Union under chapter 29, Pamph. L. 1935, p. 67, an amendatory supplement of the 1917 Municipalities act whereby a new section, numbered 3A, was inserted in article XVI as follows:
"If any person shall be removed from office or employment in any such police department, or from the police force of any municipality which has not adopted the provisions of an act entitled 'An act regulating the employment, tenure and discharge of certain officers and employes of this State, and of the various counties and municipalities and providing for a Civil Service Commission and defining its powers and duties,' approved April tenth, one thousand nine hundred and eight, such person may appeal such removal to the court of common pleas of the county in which such municipality is situated, and such court shall hear such case de novo, and may order such person reinstated in his office or employment if such court should find that such person was not guilty of the charges upon which he was removed, or may make such other order as such court may decide is proper and just under the circumstances."
The city of Plainfield thereupon moved the Pleas to dismiss the appeal on two grounds, first, that the court lacked jurisdiction to try the case, and second, that the 1935 statute was unconstitutional in that it was an invasion on the constitutional prerogative of the Supreme Court to review, by certiorari, the action of an inferior tribunal. The motion was denied. The Pleas thereupon made an order directing that the charges, the adjudication of guilt and all other appropriate documents material to the matter be transmitted to the clerk of the court to the end that the court might, by trial de novo, determine the guilt or innocence of the appellant, naming a day for the hearing of the appeal and authorizing the issue of subpoenas ad testificandum. That order is now before us for review.
Ordinarily certiorari should not be awarded until after final judgment. Breen Iron Works v. Richardson, 115 N.J.L. 305. The present writ was allowed on, and the essential
adjudication now to be made is concerned with, the allegation that it was not within the jurisdiction of the Court of Common Pleas of the county of Union to entertain the appeal. "When the purpose is to review the proceedings of a special tribunal, on complaint of irregular procedure in matters legally brought within its jurisdiction, a certiorari may legally issue before final decision, but ordinarily should not be allowed until then, for haply the tribunal may correct its own error in time; when the design to reverse proceedings of special tribunals in matters not legally brought within their jurisdiction, then the writ of certiorari may legally, and ordinarily should be allowed when asked for, either before or after final decision, because each step in such proceedings is an unlawful vexation of the party prosecuted, against which this writ is his sole ...