State v. Bd. of St. & Water Com'rs of City of Newark

• fullCitation: Beecher v. The Board of Street & Water Commissioners of The City of Newark, 46 A. 166, 64 N.J.L. 475 (N.J. 1900)
• Decision Date: 20 April 1900
• Citation: 64 N.J.L. 475,46 A. 166
• Parties: STATE (BEECHER et al., Prosecutors) v. BOARD OF STREET & WATER COM'RS OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

46 A. 166

64 N.J.L. 475

STATE (BEECHER et al., Prosecutors)

v. BOARD OF STREET & WATER COM'RS OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

April 20, 1900.

Certiorari by Joseph A. Beecher and others against the board of street and water commissioners of the city of Newark and others to review an ordinance. Ordinance set aside.

Argued February term, 1900, before LUDLOW, COLLINS, and DIXON, JJ.

Joseph A. Beecher, for prosecutors. Joseph Coult and William H. Corbin, for defendants.

DIXON, J.The certiorari in this case brings under review an ordinance of the street and water board of the city of Newark passed March 1, 1900, purporting to grant permission to the Prudential Insurance Company to erect and maintain a bridge across Bank street, about 221 feet west of Broad street, and about 108 feet east of Halsey street, as a passageway between two buildings owned by the company on the opposite sides of Bank street. The certiorari was sued out by persons owning real estate on the westerly corner of Bank and Halsey streets and on Bank street west of Halsey street. The reasons filed for setting aside the ordinance all, with one exception, assign the lack of power in the board to authorize such an incumbrance of the public street, and a preliminary question therefore arises whether these prosecutors can prevail on reasons of that nature. The latest judgments on this subject delivered by the court of last resort are to be found in Tallon v. City of Hoboken, 60 N. J. Law, 212, 37 Atl. 805, and Oliver v. Jersey City, 44 Atl. 709. In the Tallon Case an ordinance beyond the power of the municipality, and which attempted to sanction a special occupation of a street, was assailed by a prosecutor who had a right in the street different from the right of the public, and therefore would suffer a special injury beyond that sustained by the public, and also by prosecutors who had no such right and would suffer no such injury. The court adjudged that only the prosecutor suffering the special injury could maintain a certiorari to question the ordinance. In the Oliver Case, where also a special occupation of a street was the matter complained of, the prosecutor was said to have no interest differing in character from that of other citizens using the highway; but the ordinance was attacked on the ground that it had not been adopted in accordance with the municipal law, and the court concluded that the prosecutor had a legal standing for the maintenance of the writ. Mr. Justice Van Syckel, delivering the opinion of the supreme court in the Oliver Case, which on this point was approved by the court of errors, declared the basis of these adjudications to be that when the ordinance is beyond the power of the municipality, so that it would afford no legal protection to the acts done under it, even against a collateral attack, then the prosecutor must show a private interest different in kind from that of the public; but, when the illegality of the ordinance consists only in the mode of its adoption, then a private prosecutor without such an interest may maintain a certiorari in defense of the public rights. The test to be applied, in determining whether that "private interest" exists, or that "special injury" may oe suffered, which is necessary to entitle a private prosecutor to question by certiorari the power of a municipality, has not hitherto been clearly defined. But light is thrown upon it by the very recent decision of this court in Morris v. Jersey City, 45 Atl. 916, where resolutions of a municipal board, providing for certain alterations in Chapel avenue west of the Morris Canal, were set aside, as being ultra vires, at the instance of...