State v. Bd. of Pub. Works of Jersey City

• Decision Date: 18 October 1886
• Citation: 48 N.J.L. 428,6 A. 23
• Parties: STATE (VAN REYPEN, Prosecutor) v. BOARD of PUBLIC WORKS of JERSEY CITY and others.
• Court: New Jersey Supreme Court

6 A. 23

48 N.J.L. 428

STATE (VAN REYPEN, Prosecutor)

v. BOARD of PUBLIC WORKS of JERSEY CITY and others.¹

Supreme Court of New Jersey.

October 18, 1886.

Certiorari.

John Linn, for prosecutor.

John A. Blair, for defendants.

DIXON, J. This writ of certiorari is directed to the board of public works of Jersey City, the board of finance and taxation of Jersey City and the mayor and aldermen of Jersey City, requiring them to certify their proceedings for the opening of Pavonia avenue from Tounele avenue eastwardly through the property of the prosecutor.

The first reason assigned for reversal of these proceedings is that the board of public works does not legally exist. The argument presented in support of this reason is that the statutes concerning legislative commissions, which were approved March 6, 1877, (P. L. 1877, p. 54,) and February 26, 1878, (P. L. 1878, p. 28,) abrogated the previously existing mode of appointing the members of this board by the senate and general assembly, and did not constitutionally substitute any other method of appointment. This argument involves an inquiry which cannot be made in the present controversy. It concedes that in legal theory there is such an entity as the board of public works of Jersey City, but insists that the persons who assumed the functions of such a board had no legal authority for so doing. This is the oft-repeated but always futile attempt to question collaterally the title of the de facto incumbents of public offices. If the legislature had evinced a purpose to abolish the board with all its powers, instead of a mere design to do away with a statutory mode of selecting its members, a very different question would now be raised; but we have found no evidence of such an intention. This reason is insufficient.

The other reason alleged is that the board of finance and taxation concurred in the resolution of the board of public works for the opening of the avenue, without giving the prosecutor due opportunity to be heard in the matter. We think that the board of finance and taxation was not under legal obligation to afford to the prosecutor any hearing whatever. The statute regulating the subject is the supplement to the city charter, approved March 27, 1874, (P. L. 1874, p. 504, § 9,) which substitutes the concurrence of the board for the approval of the mayor. It has never been considered that parties interested had a legal right to a hearing before the mayor when resolutions affecting them were...