
    S. IRWIN MIDDLETON ET AL. v. HENRY S. ROBBINS ET AL.
    1. A private individual cannot have a writ of certiorari in matters affecting the public, unless he has some personal or property interest to be-specially, immediately and certainly affected by the act of which he complains.
    2. The order for an election to determine a minimum license fee, under section 4 of the act of March 20th, 1889 (JPamph. L., p. 77), called the-high license law, is not reviewable by certiorari on application of the owner or licensee of a hotel within the township.
    On certiorari.
    
    Argued at February Term, 1891, before Justices Depue,, "Van Syckel a-nd Scudder.
    
      For the plaintiffs, Potter & Nixon.
    
    For the defendants, Martin P. Grey.
    
   The opinion of the court was delivered by

Scuddejb, J.

An application by a petition, signed by at ■least one-fifth of the legal voters of tlie township of Comanercial, in the county of Cumberland, was made to the law judge of that county, setting forth the desire of said petitioners that not ldss than $5,000 be charged and paid for licenses ■thereafter to be granted to sell spirituous, vinous, malt or •brewed liquors, by less measure than one quart, within that township. On notice of the application and hearing, an order was made that an election be held to determine whether or not -any license shall thereafter be granted in said township for ■any less sum of money than the amount specified in the petition. This proceeding is under section 4 of the act of March :20th, 1889 (Pamph. L., p. 77), entitled “An act to regulate ■the sale of spirituous, vinous, malt and' brewed liquors,” and to repeal an act entitled “An act to regulate the sale of intoxicating and brewed liquors,” passed March 7th, 1888. The ■entire act is known as “ the high license law,” and the act repealed thereby is called “ the local option law.” This order, •dated October 30th, 1890, is before the court for review by ■certiorari.

A preliminary question is raised whether the plaintiffs have .any standing in court to use the writ of certiorari and have the legality of this order decided. S. Irwin Middleton has •owned the Port Norris hotel property eight years, and still ■continues the owner; and the other plaintiff, Frank Deemer, is the present tenant from year to year, and licensee of the inn umd tavern kept there. Neither has suffered any actual loss by the application and order, and the injury threatened to the property and business is prospective and uncertain. As members of the community they have no right to constitute themselves the representatives of all to have it determined whether this statute can be enforced in the manner proposed, and whether the proceedings under it have been regular. It is-only because it will have a special and peculiar effect upon-them, or their property, that they have any right to be heard’ in opposition to this order appointing an election. The recent case of Traphagen et ah v. Jersey City, ante p. 434, has repeated and emphasized this well-established-distinction upon which the right to use this writ is based. The office of the-writ of certiorari, when used to test the validity of the acts of special statutory tribunals, municipal bodies and public officers*, has been so largely extended by the decisions of our courts,, that it has become difficult to define exactly in what cases it may or may not be used, and the question has been raised at each advance that has been attempted. The proceedings by information in the name of the attorney general in civil matters,, or by indictment in criminal causes, on behalf of the public;, have such advantages in determining in one suit and by a single-result questions affecting the public interest, and, incidentally,, all who are component members of the body politic; that the-leaning of the courts has always been towards the use of these-public remedies rather than to permit individuals to assert or-defend rights in matters which affect the whole public. There-may often be great mischief done in the preliminary proceedings under statutes carrying out public improvements;- in-effecting important changes in the government of municipalities ; in police regulations; and more especially in enforcing laws for the assessment and collection of public- taxes, by allowing the use of this writ to individual's acting-as volunteers, or with a small interest, and to effect merely personal or partisan purposes without regard to the public advantage.

An examination of the cases in our reports will show that our courts have proceeded slowly and cautiously in the allowance of this writ where public officers are acting to- enforce a public statute or ordinance, and how gradually- the remedy has been extended. State v. Jersey City, 5 Dutcher 170; Danforth v. Paterson, 5 Vroom 163; Gregory v. Jersey City, Id. 390; Kean v. Bronson, 6 Id. 468; Montgomery v. Trenton, 7 Id. 79; Ferry v. Williams, 12 Id. 332; Staates v. Washington, 15 Id. 605, will illustrate the disposition of the ■courts to allow the writ to be used for the protection of private rights, and for defence against private wrongs, where the remedy in this form appears to be appropriate and convenient for such purpose; but not. to permit its use for interference with public matters where the prosecutor has no other interest than as a citizen. Gregory v. Jersey City has collected the previous cases and defines the widest scope which has been .given to this writ; in superintending corporations and tribunals exercising special statutory powers; in matter of highways, taxation and municipal government by statutes and ■ordinances, even before any proceedings have been taken to put them in force. In Staates v. Washington, an ordinance was passed requiring saloon keepers to close their bar-rooms .at ten o'clock at night; it had been enforced by official notice to the prosecutor, who closed his bar at a pecuniary loss, and it was said he was entitled to the writ.

In Hart v. Scott, 21 Vroom 585, there was a refusal to grant a license to sell intoxicating liquors unless a fee of $250 was paid under the statute fixing that as the minimum •amount, while the charter and ordinance of the city made ■the charge $50. But in Paul v. Gloucester County, Id. 585, the writ was allowed to a hotel keeper and owner, who was a legal voter, to test the legality of the Bocal Option law. 'This last case may have been followed as a precedent on the •application for this writ. It will, however, be noticed that the question of the right to use the writ was not raised,, nor was it considered by the court in delivering the opinion. It •cannot, therefore, be regarded, as a direct, authority for the ■allowance of this writ. Excepting in this last named case there has been none that has gone so far as that now under ■consideration.

The order for an election under the act upon which these proceedings are had has not in any way affected.either of the prosecutors. The license continues good for the term for which it was granted, and any other loss is speculative and •contingent. The other parts of the- act fixing a minimum fee for license, graduated by population, are not challenged as •illegally affecting the person or property of the prosecutors, •and they have submitted to these terms in applying for and •receiving a license. It is objected that if an election be had ■under section 4, and it results in fixing a charge of $5,000 as ■ a fee for license, it will ruin the business and reduce the value of the property, because of their inability to pay so large a sum from the business. But these injurious effects depend on the contingency that a majority of the votes cast at such election shall be'in favor of the sum voted upon. If there shall ■be a majority against it, the prosecutors will not be damaged. As the application is signed by only one-fifth of the legal voters of the township, the result is at least uncertain. If •the majority should vote for the large sum named, there -is ■still a further contingency that the owner or his tenant will be • able to procure the requisite number of freeholders to .recommend his application for license. It cannot be said in advance what license fee will be fixed by the court, nor what action may be taken on the application for license /after the election has been decided. Before these have been ascertained any .action on the part of the prosecutors to -prevent an election is anticipating injuries that have not been and never may, be inflicted. It is true, as appears by cases above cited, that writs • of certiorari to review the proceedings of public corporations and special statutory tribunals have been sued out by prosecutors whose rights have not been yet directly affected, and before they have actually suffered from their enforcement, but this has been where there was the ability and certainty of such ■enforcement unless some preventative remedy was afforded. There is always in such cases some law, ordinance or judgment in controversy which is capable of immediate and certain application to the injury of the prosecutor either in his person or in his property rights. Here there is none, and never may be, for the result of the election which shall give the right to the court granting licenses to impose what is called a prohibitory license fee, which will cause the loss and damage apprehended, is undetermined, and the mere order for election without it will do no harm to the prosecutors. The established ruling in our courts is to the effect that in eases like-this a private individual cannot have a writ of certiorari unless he has some personal or property interest to be-specially, immediately and certainly affected by the act of which he complains.

■The objections that have been made to the sufficiency of the-notice of application to the law judge of the county, for the order appointing an election, which does not name the large amount of $5,000 as a minimum license fee in that small township, and the effect of fixing a sum for license which is-prohibitory under this statute, which it is claimed contemplates-licenses at practicable rates to be fixed by the courts, or the-voters of the township, are not decided, because the prosecutors-are hot in a position to raise these questions at this stage of the proceedings.

The writ of certiorari will be dismissed, with costs.  