Opinion
Argued February 4 and 5, 1942 —
Decided April 23, 1942.
1. The allowance of a writ of certiorari and the withdrawal of allocatur are discretionary and not appealable.
2. The writs of certiorari and mandamus may not be employed to accomplish by indirection that which, by law, cannot be accomplished directly.
On appeal from the Supreme Court, whose opinion in Case No. 21 is reported in 125 N.J.L. 622.
For the appellant, Charles J. Stamler.
For the respondents, David T. Wilentz and William J. McCormack.
The appeal in number 21 is from the denial of appellant's application for a writ of certiorari to review the determination of E. Donald Sterner, State Highway Commissioner, upon the claims of the appellant herein.
This litigation stems out of a contract entered into in 1929 between Strobel Steel Construction Company and the State Highway Commission for the construction of a bridge over the Hackensack River. The construction company abandoned the work prior to completion and the surety company on its bond finished the task. Thereafter, the construction company instituted suit against the State Highway Commission. Upon motion addressed to the complaint, the trial court struck it on the ground that it was, in effect, a suit against the sovereign. Upon appeal, the Court of Errors and Appeals affirmed the order striking the complaint. Strobel Steel, c., Co. v. State Highway Commission, 120 N.J.L. 298 . Failing in a direct attack, the construction company had resort to an application for a writ of certiorari to review the determination of the Highway Commissioner. The Supreme Court denied the application. Strobel Steel, c., Co. v. E. Donald Sterner, 125 Id. 622. The allowance of a writ of certiorari and the withdrawal of allocatur are discretionary and cannot be reviewed in this court. Frazier Co. v. Long Beach, 110 Id. 221. The appellant grounds its appeal upon an abuse of discretion. The denial of the writ shocks neither reason nor justice, quite the reverse. Nelson v. Eastern Air Lines, Inc., 128 Id. 46 .
Appeals number 22 and number 23 are directed against orders of the court below in mandamus proceedings instituted by the construction company. As set forth in appellant's brief, the attack is directed against (a) an order vacating the allocatur to the first writ of mandamus; (b) an order permitting the respondent to withdraw a demurrer to the second writ of mandamus and vacating the allocatur thereto; (c) an order denying an application to vacate the rule for judgment on the third writ of mandamus to admit further proof; and, (d) an order sustaining respondent's demurrer to the third writ. (Rule for judgment.)
Grounds (a), (b) and (c) are all addressed to orders of a discretionary nature and are not appealable. Winegrath v. Fairview, 77 N.J.L. 448; Frazier v. Long Beach, supra; ground (d) is appealable. Kenny v. Hudspeth, 59 N.J.L. 504. The mandate of the writ as to which the demurrer was sustained, directed the State Highway Commissioner "to pass upon the claims of the relator, Strobel Steel Construction Co." Our examination of the state of case shows no provision of the contract or specifications which placed upon the Commissioner the duty to pass upon the claims. However, the record indicates that the claims were passed upon and rejected.
Strobel Steel Construction Company having been denied the right to sue at law has had recourse to the writs of certiorari and mandamus to accomplish by indirection that which it could not accomplish directly. Such an attempt has been dealt with by the United States Supreme Court in Reeside v. Walker, 11 Howard 272; 13 L.Ed. 692 (at p. 700):
"It is well settled, too, that no action of any kind can be sustained against the government itself, for any supposed debt, unless by its own consent, under some special statute allowing it, which is not pretended to exist here. * * *
"Such being the settled principle in our system of jurisprudence, it would be derogatory to the courts to allow the principle to be evaded or circumvented.
"They could not, therefore, permit the claim to be enforced circuitously by mandamus against the Secretary of the Treasury, when it could not be directly against the United States;"
The appeal in number 21 from the order of the Supreme Court denying a writ of certiorari is dismissed, with costs.
The appeal in number 23 from the order of the Supreme Court denying the application to open the rule for judgment is dismissed, with costs. The judgment of the Supreme Court entered in favor of respondents on a demurrer to the alternative writ of mandamus is affirmed, with costs. In all other respects, the appeal in number 22 is dismissed, with costs.
As to Case No. 21 —
For affirmance — None.
For reversal — None.
For dismissal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, HEHER, PERSKIE, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 11.
As to Case No. 22 —
For affirmance in part — THE CHANCELLOR, CHIEF JUSTICE, PARKER, HEHER, PERSKIE, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 11.
For reversal — None.
For dismissal in part — THE CHANCELLOR, CHIEF JUSTICE, PARKER, HEHER, PERSKIE, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 11.
As to Case No. 23 —
For affirmance — None.
For reversal — None.
For dismissal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, HEHER, PERSKIE, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 11.