Downs v. Mayor and Common Council of City of S. Amboy

• Decision Date: 14 May 1936
• Docket Number: No. 158.,158.
• Citation: 185 A. 15
• Parties: DOWNS et al. v. MAYOR AND COMMON COUNCIL OF CITY OF SOUTH AMBOY et al.
• Court: New Jersey Supreme Court

185 A. 15

DOWNS et al.

v. MAYOR AND COMMON COUNCIL OF CITY OF SOUTH AMBOY et al.

No. 158.

Court of Errors and Appeals of New Jersey.

May 14, 1936.

Appeal from Supreme Court.

Certiorari by Thomas E. Downs, Jr., and others against the Mayor and Common Council of the City of South Amboy, and the City of South Amboy. From a judgment dismissing the writ, prosecutors appeal.

Affirmed.

On appeal from the Supreme Court in which Mr. Justice Case filed the following opinion:

"The record is incomplete. Neither the writ nor a copy thereof appears. There is stress of time because of the representation that certain government funds available for the project will fail unless the parties be in position to act by the 15th of this month. I shall therefore assume that my understanding is correct in that the writ of certiorari brought up the ordinance, numbered 353, passed by the common council of the city of South Amboy on April 2, 1935, and that alone.

"Respondents argue in limine that the prosecutors have no standing to prosecute a writ of certiorari. It is true that certiorari to review the actions of public officials will not lie in favor of prosecutors who have no personal or property interest to be specially and immediately affected by the action complained of. Mayor, etc., of Jersey City v. State, 53 N.J.Law, 434, 22 A. 190. The mere vacation of a public street by a municipal body does not involve the infringement of a private right. It is only a surrender or extinction of a public easement. United New Jersey R. & C. Co. v. National Dock, etc., Co., 57 N.J.Law, 523, 31 A. 981. But there are questions that should be answered.

"The prosecutors present three points, the first of which is: 'Said ordinance was approved, adopted and passed by and through the votes of the members of the common council of the city of South Amboy who were, by reason of their stock ownership in and employment by the Pennsylvania Railroad Company and the Raritan River Railroad, disqualified from voting upon said ordinance.'

"The common council consisted of five members. Of that number two were employed by the Pennsylvania Railroad Company and one by the Raritan River Railroad Company, a majority of the corporate stock of which is owned by the Pennsylvania Railroad Company and the Central Railroad Company of New Jersey; and one of the three members of council owned a single share of stock in the Pennsylvania Railroad Company. The point as stated rests essentially upon those facts.

"The right of way, tracks, and fixed railroad facilities at the locus are the property of the New York & Long Branch Railroad Company and presumably that is the corporation which will construct and own the new facilities. I have searched in vain through the state of case for precise information as to the relations between that railroad company and the Pennsylvania and New Jersey Central Companies. The chief engineer of the New York & Long Branch Railroad is also the chief engineer of the New Jersey Central. The New Jersey Central and the Pennsylvania apparently have certain operating rights; and of those two roads only the Pennsylvania appears to plan immediate propulsion by electricity. Beyond that I am in the dark.

"The plans of the Pennsylvania Railroad Company for electrification ended at South Amboy Junction. Wide sentiment sprang up in the City of South Amboy to have the improvement continued to that city so that the inhabitants might have the benefit of the more modern means of transportation and of a better train service than would be available if the terminus of the electrified train system was short of that city. The cost of continuing the improvement was considered prohibitive unless the owning company was relieved of the necessity of building underpasses for certain of the intersecting streets. The New York & Long Branch Railroad runs through the easterly end of South Amboy at a distance of approximately one city block westerly from Raritan Bay. The streets crossing the railroad right of way in the vicinity of the locus are, in their order from north to south, Augusta street, David street, Henry street, John street, George street, and Bordentown avenue. Bordentown avenue, as it proceeds westerly, becomes a main thoroughfare, as does also Augusta street because of its junction with Main street. David street also joins with Main street. Each of the remaining streets, according to the proofs, comes to a dead end within three or four blocks west of the railroad tracks and traffic thereon moving to points west must there transfer to one of the mentioned thoroughfares.

"The ordinance provides for vacating, except as to certain municipal uses, such portions of David street, Henry street, and George street as lie within the lines of the railroad right of way and becomes effective only when certain things are done by the New York & Long Branch Railroad, the Central Railroad Company of New Jersey, or the Pennsylvania Railroad Company. The acts thus required to be done are, chiefly: The opening, construction, curbing, and paving of a new street, and the construction of a sidewalk along the same, from Augusta street to Bordentown avenue, adjacent to the railroad, thus providing an intercommunicating avenue between all cross streets; the paving of Augusta and John streets in the vicinity of the railroad; construction of pedestrian overpasses at George street and at or near Henry street whereby foot traffic might cross the railroad at those points; the construction of a new passenger station in that...