State v. Mayor

Citation22 A. 1004,54 N.J.L. 111
PartiesSTATE, (NORTH BAPTIST CHURCH, Prosecutor) v. MAYOR, ETC., OF THE CRRY OF ORANGE.
Decision Date05 November 1891
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court.)

Certiorari, at the prosecution of the North Baptist Church, to the mayor and common council of the city of Orange, to inquire into the validity of an ordinance of that city relative to the opening of a street, and to bring up all proceedings under such ordinance. Ordinance set aside.

Argued at June term, 1891, before Depue, DIXON, and REED, JJ.

Colie & Titsworth and J. D. Bedle, for prosecutor.

Charles F. Lighthipe, for defendants.

REED, J. The objection most strenuously pressed against this ordinance is that its passage was not a legitimate exercise of the power to take land for public use. It is first insisted that the land of the prosecutor is not taken for the benefit of the public, but to subserve the interests of private individuals. It is secondly insisted that the judgment of the body which was to decide upon the question whether the street should belaid across the land of the prosecutor was improperly influenced by an offer of private persons to pay a portion of the expense of the improvement.

In respect to the first of these points it is observable that it is no part of our functions to decide whether the scheme adopted in this instance was a wise one. We have no power to try the question whether the advantages that would accrue to the public by reason of this improvement would be greater or less than the burden which it would impose; nor whether the degree of public benefit is so small that it does not justify the taking of land against the will of its owner. These questions have been confided by the legislature to the common council. If it should appear that there could not inure to the public any advantage whatever, and that the scheme is designed solely for the benefit of private individuals, the court could interpose in favor of the land-owner whose property is menaced. But when it is perceived that there is a degree of public benefit likely to spring out of the enterprise, all questions of policy in executing it are devolved upon the common council. To employ the language of the chief justice in the case of Tide-Water Co. v. Coster, 18 N. J. Eq. 518: "If the public interest be involved in any substantial extent, and if the project contemplated can in any fair sense be said to be promotive of the welfare or convenience of the community, the legislative adoption of such project is a determination of the question from which there is no appeal." This rule is true whether the scheme is adopted by the legislature directly or by a municipal body by virtue of a delegated authority. Dill. Mun. Corp. § 95. It is evident that the street now under consideration is calculated to enhance the convenience of a large portion of the public of Orange. The evidence taken in the cause shows the location of the already existing streets, the relative populousness of the neighboring districts, and the conveniences of passage from one point of the neighborhood to another. This, together with the opinions of a number of citizens, displays unmistakably the public character of the proposed street. Indeed, in the absence oi any testimony, this presumption would be almost, if not quite, conclusive. Says Judge Dillon: "Municipal uses proper are public uses. Highways are conceded to be, and manifestly are, matters of public concern; and hence the condemnation of property for streets, alleys, and public ways is undeniably for a public use." There is no substance in the point taken that the land over which the street runs is taken for a private, and not for a public, purpose.

The next proposition involves the effect of an offer made by one or more private individuals to pay a portion of the expense of laying out the street. This offer was made by a Mr. Barber, whose property will obviously be much benefited by the opening of the new street. He appeared before the common council, and stated that he would give $1,000 above his assessment for special benefits. It is contended that this offer to contribute to the expenses of the improvement was calculated to influence the judgment of the common council in its determination whether the street should or should not be opened. It is further insisted that this influence is inimical to a sound rule of public policy. There is a line of cases decided by the courts of the state of New Hampshire in which this view seems to receive support. Dudley v. Cilley, 5 N.H. 558; Dudley v. Butler, 10 N. H. 281; Smith v. Town of Conway, 17 N. H. 586; Gurnsey v. Edwards, 26 N. H. 224. Chief Justice Parsons, in the early case of Com. v. Cambridge, 7 Mass. 158, seems also to have entertained a similar view. A different view is taken concerning the effect of such an offer in other cases. Patridge v. Ballard, 2 Me. 50; Crocket v. Boston, 5 Cush. 182. The opinion ol Chief Justice Shaw in Copeland v. Packard, 16 Pick....

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