Hurley v. The Inhabitants of The City of Trenton and Barber Asphalt Co.

• Court: New Jersey Supreme Court
• Writing for the Court: FORT, J.
• Citation: Hurley v. Inhabitants of City of Trenton, 49 A. 518, 66 N.J.L. 538 (N.J. 1901)
• Decision Date: 24 June 1901
• Parties: MICHAEL HURLEY, PROSECUTOR, v. THE INHABITANTS OF THE CITY OF TRENTON AND THE BARBER ASPHALT COMPANY, DEFENDANTS

49 A. 518

66 N.J.L. 538

HURLEY

v. INHABITANTS OF CITY OF TRENTON et al.

Supreme Court of New Jersey.

June 25, 1901.

(Syllabus by the Court.)

Certiorari by Michael Hurley to review the action of the city council of the city of Trenton in contracting to repave certain streets. Contract held illegal, and annulled.

Argued February term, 1901, before GUMMERE and FORT, JJ.

James J. Cahill and John H. Backes, for prosecutor.

George W. Macpherson and John Rellstab, for defendants.

FORT, J. The prosecutor, a resident and taxpayer of the city of Trenton, seeks by this writ to set aside a certain contract of the city council of the city of Trenton, awarded to the Barber Asphalt Paving Company, to repave Bank and East Hanover streets, in said city. The first reason assigned is that no fund exists out of which to pay the costs and expenses incurred by the contract. The following agreed fact appears in the record: "It is further admitted by the counsel for the defendants that at the time of the making of the contract mentioned in the writ of certiorari in this cause no bonds had been issued to meet the expenses of the improvement contemplated by the contract, and that no money is on hand or available now to meet the expenses incurred or to be incurred in the making of the improvement." The brief of the counsel of the defendants contains this admission: "It is admitted that there is no money on hand or available, and that no bonds have been issued, to meet the expense of such authorized improvement." It is unnecessary to amplify on this branch of the case, because, if there be no authority for this repaving which will permit it to be done before the fund is in hand from, or authorized by, taxation, the contract is void. It must be taken to be settled in this court that a contract to incur an obligation or indebtedness in excess of existing appropriations for the purpose for which the contract is made is illegal. Waterworks Co. v. Read, 50 N. J. Law, 665, 15 Atl. 10; Humphreys v. City of Bayonne, 55 N. J. Law, 241, 28 Atl. 81.

It is likewise conceded that the city charter of Trenton contains no authority to repave a street, either by assessing the cost upon property owners or at the general public expense, unless the provisions thereof which authorize the repairing of said streets will permit the repaving thereof. It is a cardinal rule of construction of municipal charters that the powers conferred are to be strictly construed, and, where doubtful, held not to exist 1 Dill. Mun. Corp. §§ 89-91; City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 361, 27 L. Ed. 669; Potts v. City of Cape May, 49 Atl. 584. The right to "repave" is not embraced within the authority given in a city charter to "repair" streets. The latter must be done at public expense, by moneys raised by taxation, and contemplates only the keeping of existing pavements or roadways in order. Repaving may be assessed upon property owners as original pavings, where authority exists. Jeiliff v. Newark, 48 N. J. Law, 101, 2 Atl. 627.

Is there any statute authorizing the action taken by the council in letting the contract brought up? Two statutes are found relating to the repaying of streets; one an act entitled "An act to authorize cities to make permanent improvements in the roadbeds of streets at the general expense," approved May 13, 1884 (Laws 1884, p. 341). This act, by its title, expressly limits the improvements to be made to such as shall be done "at the general expense." The body of the act declares, "The expense of such work [that authorized by the act] shall be paid * * * Out of the moneys raised by tax for the improvement of streets;" and it further provides that the direction for the improvement shall be by ordinance "passed in the same manner that other ordinances of such city requiring the expenditure of money are passed." It is very clear that this statute cannot be relied upon to sustain the contract here under review. It is true that the repaying for which the contract here sought to be set aside was made was provided for by an ordinance of the city council passed September 18th, and approved by the mayor September 20, 1900. The ordinance states that the repaying is to be with "street asphaltum over Belgian block," under the direction of the street commissioner; but no reference is made in it to the statute under which it is claimed to be passed, nor to the fact that the cost is to be "at the general expense." If authority existed for it, this ordinance would be just as effective for a "repaying" where it was intended to assess property owners therefor as where it was not. The ordinance itself, therefore, is no guide as to what rule of payment for the improvement the council intended should be followed. Nor is it necessary for the legality of the ordinance, or...