
    THOMAS A. CLAY, APPELLANT, v. THE CIVIL SERVICE COMMISSION AND J. ALEXANDER BROWNE, RESPONDENTS.
    Argued March 20, 1916
    Decided June 27, 1916.
    1. An order of the Civil Service Commission, attempting to adjudicate the title to an office, is absolutely void, and in legal contemplation is as inoperative as if it had never been promulgated. Consequently, such an order is not a proper subject of review by writ of certiorari.
    
    2. Where the Civil Service Commission wrongfully refuses to certify a payroll, the remedy for such wrongful refusal is not a writ of certiorari to test the soundness of the reasons upon which such refusal is based, but an application for mcmdmnus to compel the board to perform the duty imposed upon it by statute.
    
      On appeal from a judgment of the Supreme Court, whose opinion is reported in 88 N. J. L. 502.
    
    For the appellant, William I. Lewis.
    
    For the Civil Service Commission, John W. Wescott, attorney-general, and Josiah Stryker.
    
    For J. Alexander Browne, Ward & McGinnis.
    
   The opinion of the court was delivered by

Gummere, Chief Justice.

This is an appeal from a judgment of the Supreme Court dismissing a writ of certiorari sued out by Dr. Clay for the purpose of reviewing a proceeding of the Civil Service, Commission relating to the matter of his appointment as health officer of the board of health of the city of Paterson. This proceeding was instituted at the request of Dr. Browne, who contended that he was the da jure health officer of Paterson and that Dr. Clay had wrongfully usurped that position. It consisted of an investigation of the rights of these two physicians with relation to the position and of the following conclusion spread upon the minutes of the board: “The appointment of Dr. ■ Clay, which in effect was a dismissal of J. Alexander Browne, M.D., who had hitherto held the position, was illegal and contrary to the provisions of the civil service law. It is therefore ordered that Dr. Browne be reinstated to the position of health officer, from which he has been illegally ousted.”

The judgment of the Supreme Court dismissing the writ was rested upon the conclusion that the appointment of Dr. Clay to the position of health officer was without warrant of law; that Dr. Browne was legally entitled to hold that position, and that consequently no legal injury was done to Dr. Clay by the order made by the Civil Service Commission of which he complains.

We are entirely satisfied that the writ of certiorari was properly dismissed by the Supreme Court; but we do not base our conclusion upon the grounds given by that court for its action. Dr. Clay insists that the action of the Civil Service Commission was an adjudication of the-title to the position of health officer. The respondents insist that it was a mere expression of opinion with relation to the matter investigated by the board, and did not have and was not intended to have any mandatory force.

It is not necessary to determine which of these contentions is sound, for -whether the action complained of be merely the expression of an opinion, or whether it be an attempted adjudication of the rights of the two gentlemen with relation to the position of health officer of Paterson, it is not the proper subject of review by certiorari.

If it be considered a mere expression of opinion, it is sufficient for the disposition of the matter to reiterate what was said by Mr. Justice Garrison, speaking for the Supreme Court, in the case of Newark v. Fordyce et al., viz.: “A writ of certiorari will not lie to revise or correct erroneous opinions, however hurtful they may be to individuals concerning whom they are expressed. An order, judgment ór determination affecting the rights of the prosecutors is'necessary as a foundation for the use of the writ.” 88 N. J. L. 440.

If, on the other hand, it be considered a formal adjudication by the board of the right of Dr. Browne to continue in the position of health officer and the usurpation by Dr. Clay of that position, such adjudication’is absolutely without force. It determines no right-; it affords no protection. It is in legal contemplation as inoperative as though it had never been promulgated. It is as much beyond the powers or functions of the Civil Service Commission to adjudicate with relation to the right of either Dr. Browne or Dr. Clay to hold this position as a similar adjudication by a justice of the peace or the overseer of the poor of the city of Paterson, would be outside of the official powers of either one of these officers. To justify the allowance of a writ of certiorari, it must appear that the matter sought to be reviewed has at least some semblance of vitality, that as long as it stands it affects some right or interest of the party applying for the writ.

If is argued on behalf of Dr. Clay that he is injuriously affected by the order of the Civil Service Commission, because, on the basis of the conclusion reached by it and expressed therein, the board has refused to certify a payroll containing provision for the payment to him of the compensation to which he is entitled as the health officer of the city of Paterson, either de jure or de facto. But his remedy for the wrongful refusal of the Civil Sendee Commission to certify the payroll (if such refusal be wrongful) is not the suing out of a certiorari to test the soundness of the grounds upon which that refusal was rested, hut an application for a mandamus to compel the performance by the board of a legal duty which the statute of its creation has imposed upon it. Comp. tlat., p. 3805, § 82.

The judgment under review will be affirmed.

For affirmance.—The Chancellor, Chief Justice, Garrison, Swayze, Treno hard, Bergen, Black, AViute, Ter-HUNE, TTEPPENKEriiER, WlLLLUIS, GARDNER, JJ. 32.

For reversal—None.  