On appeals from judgments of the Supreme Court.
For the appellants, J. Victor D'Aloia.
For the respondents, Merritt Lane.
The opinion of the court was delivered by
HEHER, J. Appellants challenge the issuance of peremptory writs of mandamus on the orders of Mr. Justice Parker, made in the exercise of the authority conferred by chapter 210 of the laws of 1927 (Pamph. L., p. 396), commanding the board of canvassers of the county of Essex, and its clerk, to forthwith issue to relator Reed a certificate of his election to the office of county supervisor, and to relators Harris, Burnett and Gray certificates of their election to membership in the board of chosen freeholders of that municipality.
There arises in limine the question of whether this judicial action is appealable. It is the settled rule in this state, grounded in the ancient common law, that an appeal will not lie to the award or refusal of a peremptory mandamus by the Supreme Court, upon the return of a mere rule to show cause, as distinguished from an alternative mandamus, except where the refusal necessarily involves the constitutionality
of a statute. Trinkle v. Donnelly, 98 N.J.L. 298; Mannino v. Moffett, 108 Id. 545. However, in the instant case notices were served on November 19th, 1936, of applications for peremptory writs of mandamus to be made on the following day at eleven A.M., when, after hearing the arguments of counsel, the writs were awarded; and the insistence is that the failure to proceed by rule to show cause, as laid down in section 3 of the act of 1927, supra, constitutes a jurisdictional lack which renders the orders for the writs subject to review and correction on appeal. It is said that the writs were granted "on notice instead of on rule to show cause," without proofs, and "without leave to appellants to present affidavits when a disputed factual situation existed."
But the inquiry need not be pursued; the jurisdictional point so made is moot.
The record shows that, prior to the actual issuance of the writs, the chairman and clerk of the appellant board of canvassers "signed, sealed and delivered" the "certificates of election;" and that thereafter an application was made to the Supreme Court en banc, upon notice, for a vacation of the writs, and was denied.
In thus awarding the certificates of election, the board of canvassers discharged its plain statutory duty. Notwithstanding appellants' claim to the contrary, there was no pertinent "factual dispute." Mr. Justice Parker found that the "returns" made by the district boards of election were "in proper legal form," and in all respects sufficient to enable the board to discharge its statutory duty of certification of the election results; and he ruled, and properly so, that it was not the province of the board, in the circumstances, to open the ballot boxes for the purpose of proving the returns made by the several district boards. This is the meritorious question. It is argued that the board of canvassers "is not limited to or by any statements which may be laid before them in determining the person or persons elected * * *;" and that it is the function and duty of the board to "canvass the votes" and "determine the votes cast at such election, without any limitation whatsoever."
The apposite statutory provisions, taken and compared together, demonstrate the ...