Rahway Sav. Inst. v. Mayor

• Decision Date: 06 November 1890
• Parties: RAHWAY SAV. INST. v. MAYOR, ETC., OF THE CITY OF RAHWAY.
• Court: New Jersey Supreme Court

20 A. 756

53 N.J.L. 48

RAHWAY SAV. INST.

v. MAYOR, ETC., OF THE CITY OF RAHWAY.

Supreme Court of New Jersey.

Nov. 6, 1890.

(Syllabus by the Court.)

On demurrer.

Argued at June term, 1890, before the Chief Justice and MAGIE, J.

Garret Berry, for the City. B. A. Vail, for the savings institution.

MAGIE, J. The special count in the declaration, to which the demurrer was confined, by argument of counsel at the argument, is based on certain bonds of the city of Rahway, bearing date July 1, 1871. It avers that the city, by each of those bonds, promised to pay to plaintiff or its assigns, on July 1, 1891, $1,000, with interest at the rate of 7 per cent. per annum, payable half yearly, on January 1st and July 1st of each year; that the bonds were part of an issue authorized by an act of the legislature, approved April 7, 1868, and a supplement thereto approved April 6, 1871; and that the city has not paid the interest on the bonds according to their terms, whereby an action has accrued, etc. In response to a demand from plaintiff, the counsel of defendant served specifications of the causes on which it was intended to rely in support of the demurrer, and our consideration must be confined to those causes. Supp. Revision, p. 809, § 6.

The first five causes assigned may be considered together. The contention under them is that the acts set out in the count did not confer authority upon defendant to issue the bonds in question. The first of these acts is entitled "An act to authorize the construction of works for supplying the city of Rahway and places adjacent with pure and wholesome water, and was approved April 7, 1868. Laws 1868, p. 805. The second of these acts is entitled a "Supplement" to the first act, and was approved April 6, 1871. Laws 1871, p. 1485. The scheme of the first act was to enable "The Mayor and Common Council of the City of Railway" (that being the corporate name of the city) to convey into and through the city and other places adjacent the waters of the Rahway river, or its branches, and to furnish a supply of water for domestic and other uses. The authority conferred by the act for that purpose was to be exercised exclusively by a board of commissioners. The board of commissioners was, by section 11, given authority to issue, in th3 name of the mayor and common council of the city of Rahway, bonds to be denominated on their face "Rahway City Water Bonds," and to be signed by a majority of the board, and counter-signed by the mayor of the city. The same section contains provisions as to the time of payment, rate of interest, and mode of disposing of the bonds so authorized. By section 28 of the first act, it was enacted that "this act shall take effect immediately, but its provisions shall remain inoperative until assented to by a majority of the electors voting at an election to be held in said city." As the declaration does not aver that an election was held at which the provisions of the first act were assented to in the manner prescribed in that section, it is obvious that authority to do anything under that act is not shown in this count; but by section 1 of the supplement, the whole of section 28 of the original act, following the word "immediately," was expressly repealed, and by section 5 of the same supplement it was enacted "that the act to which this is a supplement is hereby revived and continued in force, except so far as altered by this act." By these provisions, the language of which was not happily chosen, it is, I think, made clear that the legislative intent was to absolutely annul the restraint on the operations of the original act which was contained in the clause requiring the previous assent of a majority of the electors, and to re-enact and continue all the other provisions of that act, which thus became operative without any such condition. There was then no constitutional prohibition against reviving a previous legislative act in this manner, such as was inserted among the amendments of the constitution, and is now contained in article 4, § 7, par. 4. if the supplement is not otherwise objectionable, it is indisputable that the authority to issue bonds contained in the original act, could be thereafter exercised without the assent of the voters. But defendant's contention is that the supplement has failed to effect the legislative purpose, because obnoxious to other...