Ninth Street Improvement Company v. City of Ocean City

• Court: New Jersey Supreme Court
• Writing for the Court: MINTURN, J.
• Citation: Ninth Street Improvement Company v. City of Ocean City, 100 A. 568, 90 N.J.L. 106 (N.J. 1917)
• Decision Date: 21 March 1917
• Parties: NINTH STREET IMPROVEMENT COMPANY, PROSECUTOR, v. CITY OF OCEAN CITY, RESPONDENT

100 A. 568

90 N.J.Law. 106

NINTH ST. IMPROVEMENT CO.

v. OCEAN CITY.

Supreme Court of New Jersey.

March 21, 1917.

Certiorari by the Ninth Street Improvement Company against the city of Ocean City, to remove certain ordinances of the city. Ordinances affirmed.

Argued November term, 1916, before SWAYZE, MINTURN, and KALISCH, JJ.

C. L. Cole and Babcock & Champion, all of Atlantic City, for prosecutor. Andrew C. Boswell, of Ocean City, and W. Holt Apgar, of Trenton, for respondent.

MINTURN, J. The case presents the following state of facts, as contained in the stipulation of counsel: Ocean City is a city having less than 12,000 population, and is operating under an act approved March 24, 1897, entitled "An Act relating to and providing for the government of cities of this state containing a population of less than twelve thousand inhabitants." P. L. 1897, page 46. The city has also adopted the Walsh Act. The Ninth Street Improvement Company was incorporated May 31, 1916, the certificate being recorded in the clerk's office of Cape May county on June 8, 1916. The building code, in addition to what is shown by the return, contains the following:

"Passed at an adjourned regular meeting of the common council this seventh day of March A. D. 1904. George O. Adams, President of Council. Certified to this seventh day of March, A. D. 1904. T. Lee Adams, City Clerk. Approved this eighth day of March, 1904. Joseph G. Champion, Mayor."

And the amendment to the Code contains the following:

"Adopted this sixth day of April, A. D. 1908. Harry G. Stanton, President of Council. Certified to this sixth day of April. 1908. T. Lee Adams, City Clerk. Approved this seventh day of April, 1908. L. M. Cresse, Mayor."

The reasons filed by the prosecutor are intended to attack the validity of the ordinances in question, as well as their reasonableness. The building code was passed on March 7, 1904, in pursuance of the provisions of the charter of the city. The Walsh Act was passed in 1911. P. L. 1911, p. 462. Its adoption by the city of Ocean City resulted in confirming and validating such local legislation as the city governing body had passed, and which was then operative in the municipality. Whatever formal defects may have existed in the procedure necessary to pass such ordinance, were cured by the adoption, ipso facto, of the new legislation. Section 8, P. L. 1911, p. 471.

But aside from that consideration, it cannot be overlooked that the attack upon the ordinance in question was not undertaken until over 12 years had elapsed since the date of its adoption. During that interval it is reasonable to assume that the citizens of the municipality affected by the provisions of this ordinance, regulating, as it specifically expresses, "the manner of building dwelling houses, and other buildings," have expended their means and conformed their building operations to comply with its provisions, and have fixed their status as property owners accordingly.

In such a situation, this prosecutor is too late to be heard to complain of alleged informalities and irregularities in the procedure, which led to its adoption. Noe v. West Hoboken (Sup.) 37...