Sherman v. City of Long Branch

• Decision Date: 14 January 1931
• Docket Number: Nos. 254, 255.,s. 254, 255.
• Citation: 153 A. 109
• Parties: SHERMAN et al. v. CITY OF LONG BRANCH.
• Court: New Jersey Supreme Court

153 A. 109

SHERMAN et al.

v. CITY OF LONG BRANCH.

Nos. 254, 255.

Supreme Court of New Jersey.

Jan. 14, 1931.

Certiorari by Walton Sherman and by Frank M. Baxter to review ordinances of the City of Long Branch providing for construction of highway and for issuance of bonds.

Ordinance providing for construction of highway affirmed, and writ dismissed, and ordinance providing for highway bonds set aside.

Argued May term, 1930, before PARKER, CAMPBELL, and BODINE, JJ.

James D. Carpenter, Jr., of Jersey City, for prosecutors.

William L. Edwards, of Long Branch, for respondent.

PER CURIAM.

These two writs bring up for review two ordinances of the city of Long Branch; the first (case 254) is known as the highway construction ordinance, and the second (case 255) as the bond issue ordinance. The title of the first is "An ordinance providing for the laying out, widening, straightening, improving and constructing a new highway or avenue from the Monmouth Beach line southerly to the intersection of West End Avenue with West End Plaza and to acquire as much land or real estate or interest therein as may be necessary for the making of such improvement, either by purchase or condemnation in the manner prescribed by law; and providing for the grading, curbing and paving of said highway or avenue so laid out and constructed and for the levying of assessments on the property especially benefited thereby," and, besides providing for the things expressed in its title, appropriates the sum of $2,000,000 to meet the cost of the improvement. The title of the second is, "An ordinance authorizing the issue of two million dollars highway bonds of the City of Long Branch, N. J." They are what are known as companion ordinances.

At the outset we will dispose of two contentions of the respondent looking to a dismissal of the writs. The first is that the prosecutors have no special personal or property interest that will be affected nor will they suffer any special injury beyond that which will be in common with the general public.

It is conceded that prosecutors are taxpayers of the city, and it would seem to be certain that some part of the cost of the proposed improvement will fall upon the city at large and eventually be paid from funds raised by general taxation. In fact, the bonding ordinance provides that one-half of the proceeds from the issue is to be devoted to that purpose.

Respondents rely upon and cite Tallon v. Hoboken, 60 N. J. Law, 212, 37 A. 895, Ford v. Bayonne, 87 N. J. Law, 298, 93 A. 591, and Union Towel Supply Co. v. Jersey City, 99 N. J. Law, 54, 123 A. 254, but we conclude that the applicable rule is to be found in Danforth v. Paterson, 34 N. J. Law, 163, Publishing Co. V. Jersey City, 54 N. J. Law, 437, 24 A. 571 and Jordan v. Dumont (N. J. Err. & App.) 143 A. 843, which disposes of the contention adversely to the respondents.

The second point urged, in this direction, is that the prosecutors are in laches because the highway construction ordinance was introduced December 17, 1929, finally passed December 31, 1929, and thereafter published on January 3, 1930, as required by the Walsh Act (P. L. 1911, p. 462), as superseded by section 24, art. 37, of the Home Rule Act (P. L. 1917, p. 461). This provides that an ordinance of this character shall become operative ten days after publication after final passage unless within that period protests by taxpayers representing 10 per centum of the assessed valuation shall have been filed, in which event such ordinance shall remain inoperative until a proposition for the ratification thereof shall have been adopted by a majority of the qualified voters voting at an election called for that purpose.

The respondent insists that, inasmuch as no action was taken in this manner, the prosecutors are precluded from having the present writs of review. We find this to be not so. The situation is not analogous to that in Holmes v. Morris, 16 N. J. Law, 526, Traphagen v. Hoboken Tp., 39 N. J. Law, 236, or Hendey v. Ackerman, 103 N. J. Law, 305, 136 A. 733. The statutory provision relied upon simply presents a method of determining, by a vote of the qualified electors, whether they approve or disapprove of the public policy and judgment of the governing body as expressed by such municipal act, and does not reach to a review of such an ordinance and the attending proceedings with an object to set them aside because of lack of authority in or legal errors committed by the municipal body.

Certiorari is the proper means to bring about and accomplish such a review.

Turning to the reasons argued by the prosecutors, they are:

First. The act, P. L. 1929, chapter 171, p. 319, under which respondent assumes to act, is unconstitutional?

(a) Because it violates article 4, § 7, par. 11, of the State Constitution, which provides: "The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say: Laying out, opening, altering and working roads or highways. * * * Regulating the internal affairs of towns and counties. * * * "

(b) Because it contravenes article 4, § 7, par. 4, of the State Constitution, which provides: "* * * Every law shall embrace but one object, and that shall be expressed in the title. * * * "

Long Branch adopted and became incorporated under "An Act relating to, regulating and providing for the government of cities" (P. L. 1903, chapter 168, p. 292 [1 Comp. St. 1910, p. 1167, § 2047 et seq.]) and, on March 12, 1912, adopted the provisions of the Walsh Act (P. L. 1911, chapter 221, p. 462). The statute of 1929, supra, which is attacked, is entitled, "A Supplement to an act entitled 'An act relating to, regulating, and providing for the government of cities,' approved April eighth, Nineteen Hundred and Three." It is a supplement, therefore, to the act under which Long Branch is incorporated. It was approved April 23, 1929, took effect immediately, and is as follows: "Any city now or hereafter governed by the provisions of the act to which this act is a supplement, in addition to the powers by said act conferred, shall have the power to manage, regulate and control its finances and property, real and personal; to borrow money, and negotiate temporary loans in anticipation of taxes and other revenues, and to authorize, provide and pay for public improvements, including the acquiring, laying out, widening, straightening, improving, constructing, reconstructing and maintaining streets and highways, and to issue bonds, notes or other evidences of debt in payment thereof, which said bonds, notes and other evidences of debt may be refunded or repaid in whole or in part from benefit assessments, levied on property in such city, benefited thereby, which said bonds, notes or other evidences of debt, so issued, for the purposes of this act, shall not be included as part of the debt statement, or computed in the net debt of the municipality, or in any wise be subject to the provisions of an act entitled 'An act to authorize and regulate the issuance of bonds and other obligations and the incurring of indebtedness by county, city, borough, village, town, township or any municipality governed by an improvement commission,' approved March twenty-second. Nineteen Hundred and Sixteen, and the act amendatory thereof and supplemental thereto."

Under the first contention of unconstitutionality it is urged that, up to the present time, Long Branch is the only municipality that has adopted and is operating under the City Act of 1903, supra, and that the supplement of 1929, among other things, exempts bonds issued for road and highway purposes from the debt limit provided for and fixed by the Pierson Act (P. L. 1916, p. 538, § 12, par. 3, amended by chapter 174, p. 322, P. L. 1929), thereby singling out, separating, and setting apart Long Branch as the only municipality not affected and controlled by the Pierson Act, which by its terms otherwise applies to every class of municipality in the state.

There appears to be no effort on the part of the respondent to conceal or refute the fact that the very purpose of the supplement is to relieve any city operating under the City Act of 1903 from the requirements and restrictions of the Pierson Act, and, in fact, such an effort would have been abortive, for such is the only conclusion that can be reached from its plain language.

It is true, as prosecutors' counsel argues, that the Pierson Act applies, in the broadest generality, to all municipalities. But if that act, by its terms, had excluded from its operation any cities or municipalities belonging to a recognized class, or had it provided that indebtedness of municipalities, or those of any one or more classes, issued to meet the expense of improvements such as provided for in the legislation now under attack, would that act thereby fall as prohibited by our Constitution? Undoubtedly not. Nor do we think that the act in question has any such infirmity, because it does no more, it seems to us, than take cities incorporated under the City Act of 1903 out of the operation and control of the Pierson Act. It may well be that it is is not desirable legislation and may be the initial movement to remove, one after another, municipalities of the several recognized classes from the requirements and control of the Pierson Act, so that, eventually, it will completely lose its value and effectiveness. But, it would seem, with this the courts are not concerned but it is rather a matter requiring the exercise of legislative discretion and judgment.

In Harrington Township Road Commission v. Haring, 55 N. J. Law, 327, 26 A. 915, it was held: "A law framed in general terms is not specialized by the fact that it exempts another general law from its operation."

In Booth v. McGuinness, 78 N. J. Law, 346, 75 A. 455, it is said: "In the exercise of the judicial function of declaring an act of the Legislature unconstitutional, the ultimate question is,...