Franklin v. City of Millville

• Decision Date: 22 November 1922
• Docket Number: No. 39.,39.
• Citation: 119 A. 29
• Parties: FRANKLIN v. CITY OF MILLVILLE et al.
• Court: New Jersey Supreme Court

119 A. 29

FRANKLIN

v. CITY OF MILLVILLE et al.

No. 39.

Court of Errors and Appeals of New Jersey.

Nov. 22, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Certiorari by S. J. Franklin against the City of Millville and others to review an ordinance. Ordinance affirmed by the Supreme Court (116 Atl. 176), and the prosecutor appeals. Affirmed.

Lewis Starr, of Camden, for appellant.

Louis H. Miller, of Millville, for respondents.

PER CURIAM. The decision of the Supreme Court was challenged on the argument of this appeal in only two particulars: First, that the statute requiring municipal contracts for work, etc., to an amount of over $500, to be let by advertisement and competition, was applicable. This is now withdrawn, counsel submitting to the decision of the Supreme Court in Heston v. Atlantic City, 93 N. J. Law, 317, 107 Atl. 820; so we have not considered the point. Secondly, it is alleged that, in holding that the city had power to pass an ordinance for the employment of an engineer to prepare plans and specifications for an electric light distributing system, without having first determined by ordinance that such system should be constructed, the Supreme Court overlooked the fact that the ordinance brought up also called for the supervision by said engineer of the construction of such system, in the absence of any ordinance to construct the same.

This question we do not feel called upon to consider. It is not raised in the reasons on certiorari, of which the only one applicable is the fifth, and that is restricted to the point discussed by the Supreme Court; i. e., the plans and specifications alone. The seventh is merely a general assertion of lack of power to pass the ordinance. Moreover, it seems plain, from the quotation by the Supreme Court and the brief of the present appellants, and the comments of the court, that the argument was restricted, and properly so, to the reasons filed, and that the point now made was not there presented.

The settled rule is that this court need not, and except for special reasons will not, pass on questions not raised in the court below; and this case is not within any of the exceptions to that rule. Recent cases on this point are Marten v. Brown, 81 N. J. Law 599, 601, SO Atl. 476; State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271; Ruggles v. Ocean Accident Corp., 89 N. J. Law, 180, 98 Atl. 318; McMichael v. Horay, 90 N. J. Law, 142, 145, 100 Atl. 205. The judgment will be affirmed.

For...