On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 98.
For the prosecutor-relator-appellant, Aaron Heller.
For the respondent-appellee, John G. Dluhy.
The opinion of the court was delivered by
FREUND, J. The prosecutor appeals from the action of the Supreme Court in dismissing a writ of certiorari and in discharging an order to show cause why a writ of mandamus should not issue, for the reasons that the court below "did not pass upon the legal questions presented" and "the ordinance which was the subject-matter of attack was actually void."
The prosecutor admits "there may be some question as to the right of the relator to appeal directly to this court upon the dismissal of the rule to show cause why a peremptory writ of mandamus should not issue." R.S. 2:83-15 provides that "where a rule to show cause why the writ should not be issued is discharged as the legal consequence necessarily resulting
from a determination by the court as to the constitutionality of any statute, * * * the relator may * * * take an appeal to remove the proceedings" to this court. In addition to the fact that the constitutionality of a statute is not before us for consideration, the record does not reveal any order permitting the molding of the pleadings in the mandamus proceedings so as to present an appealable judgment.
Mr. Justice Bodine, speaking for this court in Intrastate Oil Co. v. Board of Commissioners of Orange, 111 N.J.L. 354, said that:
"Since the constitutionality of a statute is not involved, the Supreme Court's refusal of mandamus is not reviewable in this Court."
Reed v. Board of County Canvassers, 119 N.J.L. 115, states the same rule of law.
Having disposed of the mandamus appeal, we now proceed to the consideration of the meritorious question presented on certiorari.
The prosecutor Finn is the lessee under a written lease for "property located at the corner of Market Street and Allwood Road, Clifton, New Jersey." Finn made application to the respondent Municipal Council "for a permit to install four 550 gallon gasoline tanks," on the property in question. The application was denied by the Municipal Council. Subsequently, Finn applied for and was allowed a writ of certiorari, which was ...