Clark v. City of Elizabeth

• Decision Date: 22 June 1898
• Citation: 61 N.J.L. 565,40 A. 616
• Parties: CLARK v. CITY OF ELIZABETH et al.
• Court: New Jersey Supreme Court

40 A. 616

61 N.J.L. 565

CLARK

v. CITY OF ELIZABETH et al.¹

Court of Errors and Appeals of New Jersey.

June 22, 1898.

Error to supreme court.

Mandamus by Amos Clark against the city of Elizabeth and others. There was a decree for defendants, and plaintiff brings error. Reversed.

George T. Parrott and Richard V. Lindabury, for plaintiff in error.

C. Addison Swift and Frank Bergen, for defendants in error.

DEPUE, J. This case was argued in the supreme court on a rule to show cause why a mandamus should not issue, and after argument on the rule, and decision in the supreme court, the pleadings were molded under the direction of the court, in pursuance of a stipulation in writing made by counsel. The stipulation of counsel was that, upon the decision of the rule to show cause, the pleadings should be so molded, under the direction of the court, as to give either party a right to a writ of error. The proceedings were thereupon amended, and made to consist of an alternative writ of mandamus, a return thereto, a demurrer to such return, and a joinder in demurrer, and a judgment final against the relator on the demurrer, as will appear by the certificate of the supreme court annexed to the rule.

The proceedings in mandamus are largely within the discretion and control of the court. The court may decline to hear the application for a writ unless in the alternative form; and the power of the court, on the hearing of a rule to show cause and after the decision, to direct an issue by proper pleadings to provide for a review by writ of error, is unquestionable. Appropriate pleadiDgs having been filed under the direction of the court, and judgment entered, the pleadings and judgment thereon constitute the record on which the writ of error is heard. The record returned with this writ consists of an alternative writ of mandamus, the return of the defendants, the demurrer to the return, and judgment on such demurrer in favor of the defendants.

The defendants insist at the outset that the case in the supreme court turned on a question of fact, and therefore its decision cannot be reviewed on error. If there be in the return which was demurred to any fact substantially at issue, the judgment of the supreme court should for that reason be sustained, the demurrer being improperly filed. An inspection of the record in this court, on which we are required to adjudicate, does not disclose any question of fact at issue between these parties; and it cannot be conceived that the supreme court, in directing this issue, would have approved of pleadings framed, as these are, to present questions of law which alone can be considered on demurrer, if, in the judgment of the supreme court, questions of fact proper to be considered by a jury appeared in the case. The opinion of the supreme court, which appears in the record, indicates a decision against the relator, not on a question of fact, which a trial court would leave to a jury, but on the construction and effect of certain agreements between the city and the railroads, the ordinance of the city, and certain legislative enactments which relate to this subject. It may be conceded that the railroad companies changed the grade of these streets under their chartered powers, and in pursuance of their chartered duties; but the legal question that arises upon this concession is whether such change of grade, made under the circumstances and with the authority of the city, does not impose upon the city a duty to provide by assessment for damages such as the relator suffered by reason of such changes in grade. In this last proposition a question of law arises, and the pleadings upon the record present that issue, and that issue alone.

The writ, sets out that the relator is the owner of lands and premises situate on Broad street, North Broad street, and Morris avenue, in the city of Elizabeth; that there have been erected on said lands certain buildings, which are thereon standing; that the grade of the street on which said lands front was duly established by a city ordinance passed on the 18th of June, 1856, and the said streets were opened, worked, and paved to the grade thus established; that this grade continued to be the lawful and actual grade pf said streets until another ordinance was passed by the city, approved August 15, 1893. The writ further recites that the city had power, under its charter and the general public laws of the state, to change the grade of any street or part of a street in said city upon which a house or building stood or was or is erected, and that the ordinance of August 15, 1893, was passed in pursuance of such power. It sets out that on December 24, 1890, a contract was made by the city of Elizabeth with the United New Jersey Railroad & Canal Company; and on the 29th of December of the same year another contract was made by said city with the Central Railroad Company of New Jersey. It further avers that, in carrying out the provisions of said contracts, it became and was necessary to cut down and lower the grade of said streets in front of the lands of the relator to a considerable depth, whereby great damage ensued to the relator and to his lands and the buildings aforesaid; that, by reason thereof, it became and was the duty of the city of Elizabeth and of the city council and of the board of commissioners of the city of Elizabeth to make or cause to be made a proper award to the relator for damages ensuing or arising to him, as owner of said lands, from the changes of grade aforesaid,—with a prayer, etc. The writ sets out the contracts with the railroad companies in full, and also the ordinance of August 15, 1893. These contracts were made in December, 1890, and the ordinance was not passed until August, 1893. The return of the defendants to this writ admits that the relator was the owner of the lands designated in the writ, situate as therein stated, and that the grade of the streets on which said lands front was duly established by the ordinance of June 18, 1856. It also admits that during the years 1893 and 1894 the grade of those streets was changed and lowered. It avers that the said change of grade was not made or authorized by the city, but that the said change of grade was made by the railroad companies, in accordance with the ordinance of August, 1893, under and by virtue of powers granted to these companies respectively by their charters. These are the substantial allegations in the defendants' return. The allegations of fact in the writ not traversed are admitted by the defendants.

By the city charter the common council had power to order any street or section of a street to be graded. P. L. 1863, p. 145, § 92, subd. 3. By section 105, as matters stood under the city charter, the city had power to assess the costs and expenses of grading upon the owners of lands and real estate on the line of the street. P. L. 1863, p. 149. The city had power under its charter, by ordinance, to make changes in the grades of these streets. It also had power, in virtue of the act of 1874, to enter into contracts with the railroad companies to change or elevate their railroads within the city. P. L. 1874, p. 45. The same act conferred upon the municipal authorities of the city power to vacate, alter the lines, and change the grade of any streets or highways therein, and to do all such acts as might be necessary and proper to effectually carry out such contracts. But this act did not supersede the provisions of the city charter which provided for the manner in which the city authorities should legislate with respect to the change of grade. Contracts such as are provided for by this statute, as well as the changes in grade, were municipal acts, to be done, not by any officials who might come under the designation of authorities, but by the common council, exercising its powers in the manner in which that body, by the city charter, was authorized to perform its functions.

Separate contracts were made between the city and the two companies, which for present purposes were identical in terms and conditions. I shall refer to the contract with the Central Railroad Company, as that contract is more pertinent to the matter in controversy. That contract is between the Central Railroad Company, of the first part, and the city of Elizabeth, of the second part. It purports to be executed in pursuance of the act of March, 1874, already referred to. The contract states that it was agreed by and between the parties that in virtue of the power and authority conferred by said act, and by virtue of all other powers and authority possessed by the parties, or either of them, for the purpose, the railroad company should and might change the grade of their railroad in said city east of Broad street, as follows (specifying the changes of grade, including the grade on Broad street and Morris avenue); that the entire cost of elevating the tracks of the railroad, and of the work required in making the changes in the location and grades of said streets, should be paid by the railroad company; that all land required for said purposes not owned by the city or the railroad company should be acquired by the railroad company or obtained by the city by condemnation proceedings, the award or awards therefor to be paid by the railroad company. The contract contained a stipulation that each party to this contract (that is, the city and the railroad company) should proceed to perform the acts and all of the acts therein required to be done by each party respectively, and that each party would at the request of the other exercise its respective franchises, and take any action, corporate or otherwise, expedient or necessary to carry out the pur poses of this contract, and that all proceedings necessary to be had or taken to authorize changes in grade, or vacation of streets, or the construction of undergrade crossings, or the acquisition of lands, required to carry out the purposes of this...