The Lambertville record. [volume] (Lambertville, N.J.) 1872-1968, 1883-01-10
For THE REcoRI
CITY SOLICITORS OPINION.


In tho matter of the Bridge street sewer,
now before the Common Council, / as the
legal adviser of the city, at meeting pre-
yions to the last, was asked as to the eff
| feet of the certiorafi from the Supreme
Court directed To them in that matter
told the Council in substance, that it
operated as stay Of proceedings, and
that the Council could do nothing further
in the matter, until it was disposed of by
the court, without subjecting themselves
to liability for contempt of court. That
was the only question upon which my
opinion was asked, and as have already
given it, / do not think it improper to
give it again in writing, that the public
/ may SEQ upon what it was founded and If
the question should get before the court,
will then know whether ! am right or
wrong.
The Office of certiorari in our state, is
to remove to the Supreme Court, the pro-
ceedings of any inferior court, act of
municipal corporation on any officer, &C.,
for the purpose of having the court pass
upon the legality of the act proposed or
consummated and with the writ is re-
turned what has been done in the matter,
and until the matter is disposed of by the
court, no further proceedings can be had.
A mistaken idea prevails, that because no
supersededs was served on the Council,
therefore they are at liberty to go on and
act further Ia the matter The writ is of
itself il its effect a superscdeas to all who
have notice of It, The only exception is
that of an officer who has 10 his hands an
execution issued before writ was grant
ed. Ia that case the officer is already
commanded by the state to execute his
writ, aud being no party to proceeding,
nor interested in it, a supersedeas should
be issued to stay the execution in his
hands. But as to the party against whom
it is issued, the service of the certior0ri
stays their hand. 1t must be remember
ed that the original writ Of certiordrt was
served upon the President of the Council,
and that body directed the Clerk to make
return, under seal, of such proceedings of
Council, as tho City Solicitor should ad-
wise SO that it cannot be said, that they
had no knowledge of the issning of the
writ. Perhaps however the effect of the
writ of ceftior0ri can be better understood
by quoting the language Of our supreme
Court in two reported cases,
Tho first is McWilliams VS., King aud
Phillips, Sd Vroom, el. In that case the
court say But it is TO DO remembered
that the writ of certorari, is of itself anu
pro prio gigore supersedeas. Neither
the inferior court, nor the officer holding
the process of such inferior court, can
rightfully proceed after formal notice of
its having issued. Every act done after
such a notice, is not only irregular but is
absolutely void, and the parties doing
such act are trespassers. A lso the court
say in the same case : " The Justice or
the inferior court receives conclusive in
formation of the purchase Of tho writ
of eertiorari, from the delivery of such
writ itself. y
The effect of the writ is thus made so
plain that no one ought to err therein.
That further proceedings after delivery
Of writ being contempt the case of Nc
Quade VS.. Emmons, 9th Vroom, 800, con-
clusively shows.
In this case Justice of The Peace took
some steps in case after delivery to HIM
of the writ. The court say in reference
to the Justice " The writ of eert,orori
directed to him, had been presented to
him. This writ of itself operates as a
supersedeas. After having received formal
notice of its issue, no further act could
lawfully be done, or proceeding had by
him, in the matter removed by this writ
All proceedings subsequent to the notice
formally given to him of its issue, were
absolutely null and void And speaking
further, that the Justice thought some
thing else ought to have been done to
make it binding says; 'And there is
evidence to show that encouragement was
given to this idea, by the advice and
opinion of counsel upon whose Judgment
he relied. But this cannot excuse him.
He knew that the writ was issued by
superior authority, and his duty was to
render unguestioning obedience to its
command. He did not do that but of his
own authority he proceeded to execute
the judgment which tho certiordri had
removed from his control. BY doing SO
he condemned the authority of this court,
and SO it must be adjudged against him.
| think have quoted enough to satisfy
any reasonable mind of tho correctness of
tbe opinion given. 1t makes no differ
ence because in the cases quoted refer
ence was to the acts of Justice of the
Peace. Just substitute Common Council
in the place of the Justice and yon will
have the same result
CHAs. A. SKILLMAN,
City Solicitor
N