Livelli v. Mayor

• Decision Date: 07 June 1909
• Citation: 73 A. 77,78 N.J.L. 245
• Parties: LIVELLI v. MAYOR, ETC., OF CITY OF HOBOKEN.
• Court: New Jersey Supreme Court

73 A. 77

78 N.J.L. 245

LIVELLI

v. MAYOR, ETC., OF CITY OF HOBOKEN.

Supreme Court of New Jersey.

June 7, 1909.

(Syllabus by the Court.)

Rule by Domenick Livelli to show cause why a writ of certiorari should not issue to review an ordinance passed by the Council of Hoboken. Rule discharged, and writ refused.

Argued February term, 1909, before GARRISON, BERGEN, and VOORHEES, JJ.

Samuel A. Besson, for prosecutor.

John J. Fallon, for defendant.

VOORHEES, J. This is a rule to show cause why a writ of certiorari should not issue to remove an ordinance passed by the council of Hoboken entitled "An ordinance defining the duty and fixing the salary of commissioners of assessment of taxes," passed June 3, 1897, and thereafter partially included in a revision and recompilation of ordinances in 1900.

The ground of attack is that the act of the Legislature entitled "An act concerning the appointment of commissioners of assessment of taxes in certain cities," passed April 3, 1889 (P. L. p. 152), is unconstitutional. It is asserted that it is special legislation regulating the internal affairs of towns, etc. The question must be resolved against the prosecutor under McCarthy v. Queen (N. J. Sup.) 09 Atl. 30, affirmed by the Court of Errors and Appeals, 72 Atl. 1119. where it is asserted that an act dealing merely with the structure, machinery, or powers of municipal government is general, although it embraces only a class of cities formed on the basis of their population according to the discretion of the Legislature unless the class formed be illusory. The provision in the act that no more than a bare majority of such board of assessors or officers shall at any time be members of one political party does not render the act invalid. It was so held by this court regarding chapters 45, 46, and 62 of the Laws of 1907 (Acts April 12, 13, 1907 [P. L. pp. 89, 95, 114]), in McCarter, Attorney General, v. McKelvey (June Term, 1908) 73 Atl. 884.

The gross laches of the prosecutor will prevent the allowance of the writ by the court in the exercise of its discretion. The ordinance attacked was passed in 1897. This application is made more than 11 years thereafter, during which time the prosecutor, who Invokes the power of this court as a taxpayer merely, has lived in the city of Hoboken.

The change in the machinery of the city government in respect to the department of taxes has been made and continued under the act and ordinance to the knowledge of the prosecutor...