In short, the constitutional regulation concerns the right to invoke this extraordinary jurisdiction, but not the substantive principles governing the right to relief, such as, e.g., the time-honored dictates of equity and the limitations imposed in the essential public interest. See Evans v. Villani, 19 N.J. Super. 86 ( App. Div. 1952). II.
For these reasons, mandamus is not a writ issued as a matter of right. Before granting the writ, the court must consider "the public interests which may be implicated." Evans v. Villani, 88 A.2d 1, 4 (N.J Super. Ct. App. Div. 1952). It should "act in view of all of the facts and circumstances," id., "and with due regard to the consequences," State ex rel. Cranfill v. Smith, 48 S.W.2d 891, 893 (Mo. 1932). In exercising its discretion whether to issue the writ sought here, the court should hear evidence concerning the consequences of the proposed order. For this reason, Summitwood's motion for summary judgment must be denied.
A complaint in lieu of prerogative writs is a substitute formal writ it replaced. Evans v. Villani, 19 N.J. Super. 86 (App.Div. 195 2). When a decision of municipal government is challenged, the substituted writ is that of certiorari, a predominantly appellate form of action.
The statute does not authorize such action by the court in the first instance. In any event, the procedure authorized may not be compelled where it would work an inequitable result. Evans v. Villani, 19 N.J. Super. 86 (App.Div. 1952). Thus, absent proof that the remainder of a parcel sought to be apportioned is of a value equal to or in excess of the amount of the tax lien apportioned to the remainder, apportionment of the tax lien should not be made under the statute.
But, the court must consider the consequences of granting the writ, and whether or not the writ can be enforced. In the case of Evans v. Villani, 19 N.J. Super. 86 ( App. Div. 1952), the court said: "The courts will act in view of all of the facts and circumstances, according due consideration to the equities, the efficacy or futility of the judgment and to whether the mandatory judgment will conduce to substantial justice or, on the contrary, tend toward injustice, hardship, or oppression. * * * They will particularly envision the public interests which may be implicated."
" And note generally in Evans v. Villani, 19 N.J. Super. 86, 93 ( App. Div. 1952): "So, although the initial discretionary allowance of the writ and the writ itself are no longer recognized in our present practice and procedure, yet the modern action is in lieu thereof, and its prosecution continues to be an extraordinary remedial procedure of a prerogative character subject to the well settled principles heretofore governing the granting of such a type of remedy.
Where it appears that such results will follow, ordinarily the court, in the exercise of its discretion, will deny mandamus. State ex rel. Beronio v. Pension Commission, 130 N.J.L. 620, 624 ( E. A. 1943); Evans v. Villani, 19 N.J. Super. 86, 93 ( App. Div. 1952); 34 Am. Jur., Mandamus, ยง 35 (1941). The contention is directed primarily against the order to assess all the properties in the township for 1956.
4 N.J. Super. 85 (1949). In Evans v. Villani, 19 N.J. Super. 86, at pages 92 and 93 ( App. Div. 1952), Judge Jayne stated that: "While prerogative writs have been superseded in this jurisdiction and a procedure substituted in lieu thereof ( Rule 3:81-1), yet the established principles previously governing the allowance of such writs continue to be applicable to the determination of the summary or final judgment to be rendered in the substituted form of action.
Frank v. Frank, 7 N.J. 225, 234 ( Sup. Ct. 1951). In Evans v. Villani, 19 N.J. Super. 86 ( App. Div. 1952), there are doctrinal pronouncements on mandamus that are altogether too pertinent to be presently omitted. The court says ( pp. 93-94):
Cf. Beronio v. Pension Commission of Hoboken, 130 N.J.L. 620 ( E. A. 1943). The case of Evans v. Villani, 19 N.J. Super. 86 ( App. Div. 1952), cited by the municipality, is distinguishable. There plaintiffs brought an action in lieu of mandamus to compel defendants to apportion certain municipal assessments.