nances the company constructed a portion of the line from Yardville to North Crosswicks, along the route described in the ordinance of February 7, 1906, but no part of it was ever operated. indefinitely extending the time for constructing the railway was submitted by the Mercer County Traction Company to the relator, and its passage requested. This proposed ordinance was laid on the table by the township On October 15, 1910, the company leased to committee of relator, and no further action the respondent the Trenton & Mercer County taken thereon. In July, 1914, material for Traction Corporation, among other things, all the reconstruction of the line between Yardits railways, as then located or constructed, ville and North Crosswicks was distributed and also all rights, powers, privileges, and along the highway, and men in the employ franchises for 999 years, and the lessee of the respondent, the Trenton & Mercer agreed to operate the "railways and other County Traction Corporation replaced some property" so demised during such term. The decayed ties and defective rails, but that was ordinance of February 7, 1906, provided that the work of construction should be completed by May 1, 1907, unless prevented by municipal improvements on the public highway or delayed by litigation. No municipal improvements or litigation have prevented or delayed such construction. On March 1, 1911, the relator notified the Mercer County Traction Company to complete the construction of however, of again assuring you of our exthe railway from Yardville to North Cross-pectation of continuing it to completion." wicks on or before September 1, 1911. Thereafter there was correspondence be tween the relator and both respondents in which promises were made to construct the road and requests that relator should delay mandamus proceedings, until on or about April 16, 1913, when the respondent the Mercer County Traction Company filed a petition with the board of public utility commissioners praying for permission to construct its line of railway across the Pennsylvania Railroad Company's tracks at Yardville where the route of the street railway as located by the ordinance of February 7, 1906, crosses such steam railroad tracks. Hearings on the petition were continued from time to time, and finally were adjourned without any conclusion or determination, in order to permit the respondents and the railroad company to reach an agreement concerning such crossing. all. Further complaint on the part of the relator brought from the president of the respondent the Trenton & Mercer County Traction Corporation a letter of October 13, 1914, saying that unfavorable financial conditions had prevented more rapid construction of the work, and that "we take this opportunity, The work of reconstruction was not resumed, and that part of the material deposited in 1914 which had not been used to repair the track has since the beginning of the year 1915 been carted away. Neither respondent has ever suggested a surrender of the franchise or release from the obligation to construct and operate the railway under the ordinance of February 7, 1906. On April 29, 1915, this rule to show cause why a writ of mandamus should not issue was obtained. We are of the opinion that a writ of mandamus must issue. [1] The acceptance of the ordinance imposed upon the company the duty to construct, maintain, and operate such railway in accordance with the terms of the ordinance, and in compliance with statutes which confer upon the company such rights, privileges, and franchises. The company was invested with important prerogative franchises, among Further correspondence took place between which are the right to build and use the railthe relator and the respondents. To obviate way, and to charge and take fares. These the difficulty of crossing the steam railroad prerogatives are grants from the government, at grade the Mercer County Traction Com- and public utility is the consideration for pany purchased land abutting the high- them. An implied condition attaches itself way on both sides of the steam railroad for to the grant of the franchise that it is held the purpose of making an elevated detour for the public benefit, and the duty of the over the railroad. On January 10, 1914, the company is to exercise it for such purpose, counsel of the respondents wrote to the re- and, the grant being exclusive, the comlator that the Mercer County Traction Com- pany must be held to a good faith in the perpany had directed its officers "to proceed and formance of its duties, which must be fulact with the Pennsylvania Railroad Com- filled until lawfully surrendered, suspended, pany for the erection of the overhead bridge or abandoned by the legally expressed conat Yardville, and the Trenton & Mercer Coun- sent of the state. Bridgeton v. Traction Co., ty Traction Corporation to place the railway 62 N. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837. in good operating condition." On April [2] Mandamus will lie to compel a street 22, 1914, the president of respondent the railroad company to construct, maintain and Trenton & Mercer County Traction Corpora- operate its road for the benefit of the pubtion wrote, "We are going to reconstruct the lic, if a legal duty to do so is imposed by trolley line to Crosswicks this season," and law, and there is a clear violation of such again on June 3, 1914, "We are now about duty, unless performance is for some reason ready to commence the rebuilding of the impossible. Bridgeton v. Traction Co., 62 N. tracks between Yardville and Crosswicks." | J. Law, 592, 43 Atl. 715, 45 L. R. A. 837; 26 [3] A street railway company incorporated and that the right to cross such tracks at under the laws of this state which takes over grade has not been obtained, furnishes no exby lease the rights, privileges, and franchises cuse why the street railroad should not be of another such street railway company by completed and operated upon the route that act assumes the correlative duties and through the highways of the municipality upobligations of the franchise, and upon it rests on either side of such steam railroad. the same burden and duty to construct, main- Bridgeton v. 1raction Co., 62 N. J. Law, 592, tain, and operate such street railway under 43 Atl. 715, 45 L. R. A. 837. If permission the statutes and the ordinances of the mu- to cross at grade cannot be obtained, and if nicipality as were imposed upon the original the respondents prefer not to pursue their company. Bridgeton v. Traction Co., 62 plan of overhead crossing, they can still exN. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837. ercise their franchise in behalf of the pub[4] The respondents contend that no duty lic without reference to the steam railroad is imposed upon them to complete and oper- crossing by completing the construction and ate the road, because they say that the Mer- operating their line on either side thereof. cer County Traction Company failed to file [6] It is contended that the company is exwith the township clerk a contract covenant-cused from performance because the towning "to abide by and perform all the matters ship failed to act upon the proposed ordiand things in the ordinance contained," as required by the terms of such ordinance. But we think there is no merit in that contention. It is conceded that the company filed an acceptance of the ordinance in writing with the secretary of state, and a copy thereof with the clerk of the relator, within the time and in the manner required by the statute, and has recognized the validity and binding effect of the ordinance by entering upon the construction of the road. The duty of the company to complete and operate the road is therefore clear. nance submitted by the company indefinitely extending the time fixed in the ordinance of February 7, 1906, for the completion of the road. But clearly that is not so. The township throughout has insisted, and now insists that the road shall be built regardless of the time limit. [7] Lastly, it is argued that the company is excused from performance because it stopped work on its road before completion for four weeks consecutively, after being notified by the township to proceed. There is no merit in that contention. True, the ordinance provides that, if the company stops work be fore completion for four weeks consecutively, after notice to proceed has been given, then the permission to lay the tracks "shall be null and void." But the township has not seen fit to avail itself of that provision, but, on the contrary, has always insisted and still insists upon performance. [5] It is contended that the construction and operation of the road is impossible, and is therefore excused, because of the inability of the company to obtain the right to cross at grade the tracks of the steam railroad which crosses the highway through which the street railway is located. It may be assumed that an effort was made in good faith to obtain such right of crossing, and that the effort failed. But, no doubt, this was a contingency within the contemplation of both parties when the ordinance was passed and lute, and a writ of peremptory mandamus accepted, and we think it falls short of show-awarded in accordance with it, with costs. ing impossibility of performance under the circumstances of this case. We have pointed out that the company proposed to effect an overhead crossing of the steam railroad, and for that purpose has acquired land abutting the highway, and on both sides of the steam railroad. It is conceded that this overhead crossing may be accomplished simply by diverting the track from the highway to the land thus acquired on either side of the steam railroad. The respondents, however, say that they have not obtained from the relator the formal right to thus divert their tracks. But they have never applied for such right, and there is no reason to suppose that, if applied for, it would be denied. In this matter good faith has not been shown. But, apart from this, in the absence of any tender of a surrender of the franchise, the fact that the located route of the railway is laid across the tracks of a steam railroad, These conclusions, in effect, dispose of every question argued. The rule to show cause will be made abso (88 N. J. Law, 425) STATE v. PLOUGH. (Supreme Court of New Jersey. March 2, 1916.) 1. CRIMINAL LAW 1134(7) INDICTMENT A motion to quash an indictment is ordinarily addressed to the discretion of the court, and is not reviewable on a strict bill of error, on which only legal errors can be considered. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2992-2996; Dec. Dig. ~ 1134(7); Indictment and Information, Cent. Dig. 88 470, 471; Dec. Dig. 136.] 2. CRIMINAL LAW 1134(7)-WBIT OF ER- can be considered. Law, Cent. Dig. 88 2992-2996; Dec. Dig. 3. CRIMINAL LAW 1134(7) — WRIT OF ERROR-OPENING STATEMENT-VARIANCE FROM CHARGE. The refusal of a motion to direct an acquittal after the prosecutor had finished his opening address, on the ground of variance between the charge in the indictment and the opening statement, does not present a legal error, reviewable on strict writ of error. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2992-2996; Dec. Dig. 1134(7).] 4. CRIMINAL LAW 1134(7)—Writ oF ERROR -LEGAL ERROR. The erroneous refusal to direct a verdict at the close of the state's case does not present a matter reviewable on strict bill of exceptions; the motion being addressed to the discretion of the court. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2992-2996; Dec. Dig. 1134(7).] 5. CRIMINAL LAW 741(1) — TRIAL - JURY QUESTION. Where there is any evidence whatsoever tending to show accused's guilt, the case should be submitted to the jury. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 1728; Dec. Dig. 741(1).] 6. CRIMINAL LAW VERSAL. 1134(6)—APPEAL-RE Where a conviction was proper, the fact that the trial court erred in assigning reasons for its ruling is no ground for disturbing the conviction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2991; Dec. Dig. 1134(6).] 7. CRIMINAL LAW 829(1) TRIAL IN STRUCTIONS. The refusal of requests covered by the charges given is not error. [Ed. Note. For other cases, see Criminal Law, Cept. Dig. § 2011; Dec. Dig. 829(1).] Error to Court of Quarter Sessions, Hudson County. John Plough was convicted of crime brings error. Affirmed. and Argued November term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ. James F. Clark and Joseph M. Noonan, both of Jersey City, for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas, and George T. Vickers, Asst. Prosecutor of the Pleas, both of Jersey City, for the State. GUMMERE, C. J. The defendant below was convicted of malfeasance in office, the specific offense charged in the indictment being that, while a member of the common council of the town of West Hoboken, and as a member of such board charged with the regulation, administration, and enforcement of the law in and for said town, he did willfully, unlawfully, and corruptly aid and assist one Gertrude Wille in keeping and maintaining a disorderly house in that town, and received from her large sums of money for and in consideration of his assistance and aid. [1, 2] The first ground upon which we are asked to reverse the conviction is that there was error in the refusal of the court to quash the indictment on motion made for that purpose. This case comes up on strict bill of exceptions, and consequently only legal errors can be considered. A motion to quash ordinarily is addressed to the discretion of the court, and is not reviewable on strict bill of error. State v. Siciliano, 85 N. J. Law, 389, 91 Atl. 988. The motion in the present case was controlled by the decision of the Court of Errors in the cited case, and there was no error in its refusal. [3] The next ground upon which we are asked to reverse the conviction is that the court below denied a motion made on behalf of the defendant to direct an acquittal after the prosecutor of the pleas had finished his opening address to the jury, and before any testimony had been offered. The ground of the motion was that there was a variance between the charge in the indictment and the facts which the prosecutor stated he intended to prove. Why counsel for the defendant consider that the refusal of this motion constitutes legal error they do not enlighten us in their brief, much less do they suggest any authority in support of their contention. We ourselves fail to perceive any ground for considering the refusal of the motion erroneous, and therefore cannot reverse the judgment upon this ground. [4] The next ground of reversal is that the court erroneously refused a motion to direct the acquittal of the defendant at the close of the state's case. But such a motion is addressed to the discretion of the court, and the action of the court thereon is not reviewable on error when the case comes up on strict bill of exceptions. State v. Jaggers, 71 N. J. Law, 281, 283, 58 Atl. 1014, 108 Am. St. Rep. 746. [5] It is further argued that at the close of the whole case the trial court should have directed a verdict in favor of the defendant, pursuant to an application for such a direction made in his behalf. Whether the court is ever justified in directing a verdict in a criminal case is one of the unsettled questions of the law. One thing, however, is certain, and that is that when there is any testimony in the case which supports the criminal charge made against the defendant, the jury, and not the court, must settle the question of his guilt or innocence. This was the condition in which this case stood at the close of the testimony, and the refusal to direct a verdict in favor of the defendant, was, therefore, entirely justified. [6] The next ground upon which we are asked to set aside the judgment under re view is that the court, in disposing of the ap plication to direct a verdict of acquittal, made at the close of the state's case, erroneously declared the law to be that: "Courts are presumed to take cognizance of the adoption of referendum acts for the government of municipalities, and particularly the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes adoption of the referendum act under which recollection of one familiar with them. The valWest Hoboken is governed." ue of the testimony is for the jury. [Ed. Note.--For other cases, see Witnesses, Cent. Dig. §§ 881, 882; Dec. Dig. 255(7).] If it was not for the fact that counsel have devoted four pages of their brief to this point, we should not refer to it here; and, notwithstanding the discussion contained in counsel's brief, we do not consider it necessary, in disposing of this contention, to say anything more than that courts of review never reverse the judgment of an inferior tribunal merely because of unsound reasons given by the court below for its judicial action. The reviewing court is only concerned with the question whether the judicial action was or was not erroneous, and is not interested in the soundness or unsoundness of the reasons which lead to it. [7] The other grounds of reversal are directed at the charge to the jury, and at alleged refusals to charge as requested by the defendant. We have examined the charge in the light of the attack made upon it by counsel for the defendant, and are satisfied to dispose of the reasons based upon the alleged errors therein by saying that we find them without merit. As to the requests to charge which are discussed in the brief of counsel, we find that such of them as the defendant was entitled to have charged were, In fact, charged in effect. On the whole case we conclude the judgment should be affirmed. (88 N. J. Law, 460) STATE v. NONES. 5. CRIMINAL LAW 656(7) TRIAL COM MENTS BY JUDGE. On the trial of an indictment for conspiracy, where the crucial points were whether the defendant had conspired with the treasurer of a trust company to defraud the company by having checks certified and cashed which overdrew defendant's account, it is proper for the trial judge to comment on the defendant's failure to testify. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. 656(7).] Error to Court of Oyer and Terminer, Essex County. Charles A. Nones was convicted of crime, and brings error. Affirmed. Argued November term, 1915, before the CHIEF JUSTICE and SWAYZE and BERGEN, JJ. Borden D. Whiting, of Newark, for plaintiff in error. Frederick F. Guild, of Newark, for the State. SWAYZE, J. [1] The indictment was presented April 22, 1915. The defendant pleaded on the same day. His counsel secured bail for him on April 24th, and was notified on May 4th that the case would be tried on May 10th. Counsel was busy with other matters, and assumed from the fact that other cases were set for trial on May 10th that the present case would not be reached. On the last-named day he employed himself in the taking of testimony in a civil case, and did not appear when the trial began. Α (Supreme Court of New Jersey. March 6, 1916.) jury was sworn, and thereupon the court as signed the present counsel to defend. After a witness had been sworn and partially examined, counsel who had been assigned asked leave to withdraw the defendant's plea in order to interpose an objection to the indictment. This was refused. The defendant now relies for reversal upon the fact that counsel who was assigned to defend had no opportunity to consult in order to prepare the defense, and that no opportunity was afforded to question the form of the indictment. It is argued that the conduct of the trial in effect deprived the defendant of his constitutional right to the assistance of counsel. The statement of the facts, however, shows that the real question is whether the neglect of counsel reg [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 687; Dec. Dig. 301.] 3. CRIMINAL LAW 11702 (5)-WRIT OF ER-ularly retained enlarges the rights of the HARMLESS ERROR RULINGS ON EVI ROR The limitation of defendant's cross-examination on the trial of an indictment is harmless where the matter sought to be proved thereby is an undisputed fact and a part of the state's case. defendant, and enables him to demand an extension of time to secure new counsel. To ask this question is to answer it. It would be intolerable if the business of the court could be obstructed and a postponement secured by the mere neglect of defendant's counsel. If that end could be secured by that means, an indictment could never be tried, and the process of the criminal courts would 4. WITNESSES 255(7)-EXAMINATION-REbe made to depend upon the convenience of FRESHING MEMORY. Books of a trust company conceded to be in-counsel for the prisoner. If such were the accurate may nevertheless be used to refresh the legal right of the prisoner, it is safe to say [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3133; Dec. Dig. 11702(5).] (88 N. J. Law, 440) that his counsel would never find it convenient to try the case. No doubt, the court, MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al. v. FORDYCE et al., Civil Service Com❜rs. in the exercise of its discretion, might grant time, and even a new trial. If we assume in favor of the defendant that the refusal (Supreme Court of New Jersey. March 9, 1916.) to postpone the trial was a proceeding had A mere opinion of a civil service commission adjudging that a resolution of a board of fire commissioners was without legal power is not reviewable on certiorari, since an order, of the prosecutors is necessary as a foundation judgment, or determination affecting the rights for the use of the writ. upon the trial, so that the exercise of the 1. CERTIORARI 21-WHEN PROPER-SCOPE OF REVIEW. court's discretion would be reviewable under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1820), we must say that there was no abuse of discretion. The defendant seems to have had no defense. The only witness sworn on his behalf was the counsel he had retained, who merely attempted to explain the failure to appear earlier in the day. The defendant himself was not sworn. [2] It would have been improper to allow the plea of not guilty to be withdrawn after the jury had been sworn and a witness partially examined. We do not know what the supposed objection was. If it was such as the statute requires to be made before the jury is sworn, the application came too late. If it was substantial, the question could have been presented by motion to direct a verdict or motion in arrest of judgment, and perhaps in other ways, during the progress of the trial. [3] The limitation of cross-examination as to the accuracy of the books of the trust company was harmless. It was not only proved, but undisputed, that the books were inaccurate; in fact, a part of the case on the part of the state was that the books were inaccurate, and no cross-examination could possibly have strengthened the defendant's objection to them. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 33, 34; Dec. Dig. 21.] 2. CERTIORARI 21- WHEN PROPER - PUB POSES. Certiorari cannot be used to draw judicial opinions in advance or to affect adjudications of subordinate tribunals. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 33, 34; Dec. Dig. 21.] 3. MUNICIPAL CORPORATIONS 198(4) — REMOVAL OF OFFICERS CERTIORARI IN PRO CEEDINGS. -- The mayor and common council of a city under whose jurisdiction a board of fire commissioners demoted certain officers, which decision have no interest in prosecuting a writ of cerwas reversed by the civil service commission, tiorari to review the opinion of the civil service commission. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 544; Dec. Dig. 198(4).] 4. MUNICIPAL CORPORATIONS ~198(4, 5)—OFFICERS-DUTIES-REDRESS-PROPER REMEDY. The proper remedy of fire chiefs of a city, demoted from office, is not by certiorari to review the judgment of demotion. but by mandamus directed to the board seeking to compel re instatement. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 544; Dec. Dig. 198(4, 5).] [4] Inaccurate as they were, the former secretary-treasurer of the trust company was allowed to use them to refresh his recollecProceedings by the Mayor and Common tion. This was proper. Even a false entry might serve to refresh his recollection of the Council of the City of Newark against Alexreal fact. Of course, his testimony was sub-ander R. Fordyce and others, Civil Service ject under the circumstances to severe criti- Commissioners, for a writ of certiorari to review the action of defendants in demoting cism, but the fact that it was based in importfiremen. Writ dismissed. ant points on a reference to books which were confessedly inaccurate went only to its weight with the jury. Argued November term, 1915, before GAR RISON, TRENCHARD, and BLACK, JJ. Harry Kalisch, of Newark, for prosecutors. Herbert Boggs, Asst. Atty. Gen., for Board of Civil Service Com'rs. Frank E. Bradner, of Newark, for M. J. Durkin. [5] We see no valid objection to the comment of the trial judge in his charge upon the failure of the defendant to testify. He was charged with conspiracy with the secretary-treasurer to defraud the trust company by procuring a check to be certified and by GARRISON, J. [1] The prosecutors of having checks cashed which overdrew his ac- this writ of certiorari are the city of Newark count. He knew whether he had, in fact, and its board of fire commissioners. The overdrawn, and whether he had done it by writ directs the civil service commissioners virtue of an agreement with the secretary- to certify to this court their action adjudgtreasurer. These were the crucial points. ing that a certain resolution of the board of His failure to deny the testimony. of Smith fire commissioners reducing five battalion led to a very strong inference that Smith's chiefs to the rank and salary of captains testimony was true. was without legal power. The return certi fies the opinion of the civil service commis sion to the foregoing effect based upon ar opinion of the Attorney General. This opin We find no legal error and no valid cause for reversal. The judgment is therefore affirmed. |