Davison v. Patterson

The opinion of the court was delivered by Parker, J.

The relator as an honorably discharged soldier of the United States, having served as such in the war with Germany, claims the preferential right to appointment as borough clerk of the borough of Bed Bank, under the statute of 1919. Pamph. L., p. 290. There is little or no question about the regularity of his candidacy and application for the office. The mayor, whose duty it is to nominate to the office, under the Borough act, refused to nominate the relator on the ground that he did not consider him properly qualified to perform its duties. The relator applied to a justice of this court for, and obtained the present rule, which calls upon the mayor and couneilmen to show cause why a writ of mandamus should not issue commanding and enjoining them to “nominate, ratify and confirm the relator as sole soldier applicant for the office of borough clerk, as borough clerk of the borough of Bed Bank,” &c.

The act on which the relator’s Haim is based is an amendment of the body, and intended as an amendment of the title, of the so-called “Veteran act” of 1897. Pamph. L., p. 142; Comp. Stat., p. 4871. That act applied solely to “honorably discharged Union soldiers,” i. e., veterans of the civil wrar who had served on the Union side. Tt has been passed upon in several decisions, the principal effect of which has been to restrict its operation to the “public service of the State of New Jersey” as expressed in its title. We cite the cases for convenience of reference. Hardy v. Orange, 61 N. J. L. 620; Sutherland, v. Jersey City, Id. 436; Conklin v. Freeholders, 62 Id. 168; Kreigh v. Freeholders, Id. 178. *340 The scope of the act of 1919 is much broader, as it extends to honorably discharged soldiers, sailors and marines “who have served in any war in which this country now is or has been engaged.” This is the really substantial amendment of the'body of the act.

■ .It is urged in opposition to the present rule, that the act of 1919 is unconstitutional because its object is not expressed in its title (Const., art. 4, sec. 7, par. 4); and -we conclude that this point is well taken. The title of the 1919 act reads as follows: “An act to amend an act entitled ‘An act respecting the employment of honorably discharged Union soldiers, sailors and marines in the public service of the State of New Jersey relative to removals,’ approved March thirty-first, ’one thousand eight hundred and ninetj^-seven, and to amend the title of said act.” It will be observed that no indication is given of what sort of amendment to the title and body of the act of 1897 is intended, and where the proposed amendment involves the inclusion of an entirely new class of persons as beneficiaries of the legislation, it falls within the rule laid down by the Court of' Errors and Appeals in Hedden v. Hand, 90 N. J. Eq. 583, where the attempt was to subject a new class of objects to the ban of the Nuisance Abatement act. If the sole object was, for example, to amend the title of the 1897 act so as to include-the municipal offices covered by its body, an amendment entitled simply as an act to amend the.title, without stating how, might be sustainable under such cases as Sawter v. Shoenthal, 83 N. J. L. 499, and Patterson v. Close, 84 Id. 319; but as we have pointed out, this amendment of 1919 attempts to make a broad extension of the scope of the act of 1897 as to persons affected, and this, we think under Hedden v. Hand, cannot be done.

This result is dispositive of the case; but' it seems well to add a few observations on the function of the writ of mandamus. It was remarked by the writer in Newark v. Lewis, 82 N. J. L. 279 (at pp. 281-2), that the office of the writ, as directed to a public officer, is to compel him to do something that he is required by law to do and has failed or refused *341 to do, rather than compel him to do in a different way what he has already done. II he is vested by law with discretionary power or with the jurisdiction to decide questions of law or to ascertain matters of fact, the court will not by proceedings by mandamus usurp the power to dictate how the discretion shall be exercised, or to decide what conclusions of law or of fact shall be reached. Benedict v. Howell, 39 Id. 221, 224; Mooney v. Edwards, 51 Id. 479; Gleistmann v. West New York, 74 Id. 74; Hansen v. De Vita, 77 Id. 267. The act of 1919 prescribes that persons such as the relator “shall be preferred for appointment, employment, and promotion; * * * provided, they possess the business capacity necessary to discharge the duties of the position involved.” It clearly appears in this case that the mayor, whose duty it is to make the nomination in the first place, examined into the capability of the relator with a view of ascertaining whether he came within the proviso, and determined that he did not possess the qualifications required. This, of course, is a finding of fact with which, under the rule just enunciated, we cannot interfere in this proceeding. It is true that the act mentions mandamus as “a remedy for righting the wrong,” but it does not contemplate it as a means of ascertaining the existence of a wrong. That must be done in some other way.

It may be proper to add that there is at least grave doubt whether the act of 1919- relates to a public office as distinguished from a position or employment. We content ourselves for the present with calling attention to this feature, on which it is unnecessary to pass in view of the foregoing results.

The rule to show cause will be discharged, with costs.