Of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the Judge in a matter of that kind sits as a mere legislative agent. But, after the Court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that I have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, I suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. Counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and I suppose to see what the award would be. I don't know whether they offered testimony or not as to the value of the land. That has not been spoken of.
THE COURT: With the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money.
Now the question is whether in that situation this railroad company is in a position to ask relief from a Judge of the Supreme Court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the Court. I am not speaking about the question of laches, but, in determining whether this writ ought to issue, I must take into consideration all of the circumstances. It appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of Essex expend a large amount of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out.
So, I would be inclined to say that, in view of that situation, in the exercise of a proper discretion, I ought to tell the railroad company that I cannot see my way clear to allow this writ; that it would be greatly injurious to the people of Essex county and the people of the State, even, and would produce that injury, although the people and their representative, the Park Commission, are in no way responsible for it.