On appeal from the former Supreme Court.
For dismissal and remandment: Chief Justice Vanderbilt and Justices Case, Heher, Wachenfeld and Ackerson. Opposed: None. The opinion of the court was delivered by Heher, J.
On December 5, 1947, the Clerk in Chancery dismissed appellant Gallena from the position of chief clerk in his office for what was conceived to be good cause established at a hearing on specifications of misbehavior held agreeably to R.S. 38:16-1. Appellant's appointment to the position was made pursuant to R.S. 2:2-20. It seems to be conceded that the position was not within the classified civil service. R.S. 11:4-4(m). But appellant is an honorably discharged veteran of World War I, and he was therefore within the protection of R.S. 38:16-1, cited supra.
At the outset, there was an application to a justice of the old Supreme Court for a writ of certiorari to review the proceeding on the ground that, for bias and prejudice, the Clerk in Chancery was disqualified to hear the charges. The application was denied. Gallena v. Scott, 136 N.J.L. 70. Upon the termination of the proceeding and the ouster of appellant, there was a renewal of the application for a certiorari before another justice of the Supreme Court, and again it was denied. The decision was announced on April 19, 1948. The application was then addressed to the Supreme Court en banc (two justices sitting), and was argued at the ensuing May Term. On September 9th, the court announced that, "the judges being equally divided on the question of whether or not a writ of certiorari should issue, the application must fall." Gallena v. Scott, 137 N.J.L. 548. By a notice dated September
24th, and filed October 8th, entitled in the Appellate Division of the Superior Court organized on the prior September 15th under the Constitution of 1947, appellant advised respondent of his appeal to the new Supreme Court from "the final judgment of the Supreme Court of New Jersey entered in favor of defendant on September 9, 1948."
But there was no appealable judgment either in the old Supreme Court or in the Superior Court or its Appellate Division, and the appeal was therefore abortive.
It was the established rule prior to the adoption of the Constitution of 1947 that the granting or refusing or quashing of a common-law writ of certiorari was discretionary and not reviewable on error. State v. Wood, 21 N.J.L. 682 (E. & A. 1847); State v. Wood, 23 N.J.L. 560 (E. & A. 1850); State v. French, 24 N.J.L. 736 (E. & A. 1853); State, Weart v. Jersey City, 43 N.J.L. 662 (E. & A. 1881); Morris & Cummings Dredging Co. v. Jersey City, 64 N.J.L. 587 (E. & A. 1900); Winegrath v. Fairview, 77 N.J.L. 448 (Sup. Ct. 1909); Daniel B. Frazier Co. v. Long Beach, 110 N.J.L. 221 (E. & A. 1932); Post v. Anderson, 111 N.J.L. 303 (E. & A. 1933); Ford Motor Co. v. Fernandez, 114 N.J.L. 202 (E. & A. 1934); Staubach v. Cities Service Oil Co., 130 N.J.L. 157 (E. & A. 1943); State v. Court of Common Pleas, 1 N.J. 14. The writ was ex gratia and not ex debito justitise. Moreover, the action taken did not constitute a final judgment upon the rights of the parties, or an award in the nature of a final judgment. The refusal of the writ was but a declination of jurisdiction of the matter in controversy; and the action is wanting in the attributes of a final judgment subject to review on error. It is not res judicata of the subject matter; there is no adjudication of the merits. The decision of the court could not be pleaded, nor relied upon as "a former judgment." The question at issue could be "again agitated before the same or a co-ordinate tribunal." State v. Wood, 23 N.J.L. 560 (E. & A. 1850).
Under the Judicial Article of the Constitution of 1947, the action thus sought to be reviewed by certiorari now lies
in the Appellate Division of the Superior Court, and is there subject to review.
By Article XI, Section IV, paragraph 8 of the Constitution, (a) "All causes and proceedings of whatever character pending in the Court of Errors and Appeals" were transferred to the new Supreme Court; and (b) "All causes and proceedings of whatever character pending on appeal or writ of error" in the old Supreme Court and in the Prerogative Court "and all pending causes involving the prerogative writs," were transferred to the Appellate Division of the Superior Court. It was therein further provided that for the purposes of that paragraph, and paragraphs 4 and 9, "a cause shall be deemed to be pending notwithstanding that an adjudication has been entered therein, provided the time limited for review has not expired or the adjudication reserves to any party the right to apply for further relief." Under paragraph 14 of chapter 367 of the Laws of 1948 (Pamph. L. p. 1500), "All causes and proceedings involving the prerogative writs, so transferred to the Appellate Division of the Superior Court, shall be heard and disposed of in said division;" and there is provision for the taking of evidence, if need be. The statutory class of "causes and proceedings" is embracive of "all actions, suits and special proceedings, statutory or otherwise." Paragraph 1. The act invests the court to which any such cause or proceeding was transferred with the full power of hearing and determination possessed by the court from which the transfer was made previous to the effective date of the Judicial Article of the Constitution of 1947, and "such additional powers in relation thereto as may be vested in it by the Constitution to hear any additional controversies in connection therewith and to fully and finally determine and enforce the rights of the parties thereto according to the right and justice of the matter." Paragraph 4.
These provisions of the Judicial Article of the new Constitution and the statutory implementation render reviewable in the Appellate Division of the Superior Court all pending proceedings theretofore subject to review by the discretionary ...