Pub. Serv. Ry. Co. v. City of Camden

• Decision Date: 15 November 1920
• Docket Number: No. 47.,47.
• Citation: 112 A. 421
• Parties: PUBLIC SERVICE RY. CO. v. CITY OF CAMDEN.
• Court: New Jersey Supreme Court

112 A. 421

PUBLIC SERVICE RY. CO.

v. CITY OF CAMDEN.

No. 47.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

(Syllabus by the Court.)

Gummere, C. J., and Minturn, Heppenheimer, Williams, and Ackerson, JJ., dissenting.

Appeal from Supreme Court.

Certiorari by the Public Service Railway Company against the City of Camden. Judgment for defendant, dismissing the writ, and prosecutor appeals. Reversed.

Prank Bergen, of Newark, for appellant.

Edwin G. C. Bleakly, of Camden, for respondent.

BLACK, J. The meritorious question involved in the appeal of this case is a review of the power or jurisdiction of the city council of the city of Camden to adopt the resolution dated September 25, 1919. The basis of the resolution was a notice served by the mayor, upon the defendant, on the 23d of September, 1919, returnable on the 25th before the city council. The resolution provides that the building inspector of the city notify the defendant company to appear before him and show cause why two permits B81 and B82 issued by him, August 29, 1919, for the erection of two frame buildings on private property should not be revoked or proper plans presented to and approved by the proper city authorities, and if this be not done, and if said permits be revoked, then the mayor is to give notice to the owner forthwith to remove said buildings, and if the same be not done pursuant to such notice, then the mayor is authorized and directed to remove the same at the expense of the owner, the same being by the resolution declared to be illegally and improperly constructed. A writ of certiorari was issued out of the Supreme Court to test the legality of the resolution. That court dismissed the writ on the ground that the granting of the writ was premature. We cannot accept this view. We think it does not rest upon a sound legal reason. The city of Camden is acting under a charter found in P. L. 1871, p. 210. We can find no authority in the charter, and none has been pointed out to us authorizing the mayor to give the notice, on which the proceedings brought up for review were based, nor is there any authority in the city council to hold a hearing upon such notice, or pass the resolution, or to declare the buildings illegally and improperly constructed, or to direct and authorize the mayor to remove the same at the expense of the owner. The powers of the city council are contained in the charter. It has no power or authority to act except by ordinance to regulate and control the manner of building dwelling houses and other buildings. Id., p. 228, par. 31. The charter so provides. It is well settled that when the law requires a municipal proceeding to be instituted by an ordinance, it cannot be effected by resolution merely. Mayor, etc., of the City of Paterson v. Barnet, 46 N. J. Law, 62, 66; Story v. City of Bayonne, 35 N. J. Law, 335; 28 Cyc. pp. 323, 349.

The building code, which is a general ordinance of the city, expresses the will of the city in pursuance of the grant of power under the charter, in relation to the subject-matter. It states the duties of the building inspector; provides...