State v. Bd. of Twp. Comm. of Kearney Tp.

• Citation: 31 A. 454,57 N.J.L. 588
• Parties: STATE (SCHEPBAUER et al., Prosecutors) v. BOARD OF TOWNSHIP COMMITTEE OF KEARNEY TP. et al.
• Decision Date: 28 February 1895
• Court: United States State Supreme Court (New Jersey)

31 A. 454

57 N.J.L. 588

STATE (SCHEPBAUER et al., Prosecutors)

v. BOARD OF TOWNSHIP COMMITTEE OF KEARNEY TP. et al.

Supreme Court of New Jersey.

Feb. 28, 1895.

(Syllabus by the Court)

Certiorari in the name of the state at the suit of Rupert Schefbauer and Jesse Carver against the board of township committee of the township of Kearney, in Hudson county, and George F. Woolston, to review a contract for lighting streets. Contract affirmed.

Argued November term, 1894, before DIXON, MAGIE, and LIPPINCOTT, JJ.

Edward Kenny, for prosecutors.

Joseph Parker, Jr., for defendant.

LIPPINCOTT, J. This writ brings up for review the proceedings and resolutions passed by the board of township committee of the township of Kearney, in the county of Hudson, on the 14th day of August, 1894, whereby a contract was awarded to one George P. Woolston for lighting the streets of said township of Kearney for a term of five years with electric are lights. The prosecutors, one of whom is an unsuccessful bidder for the contract, and the other a tax-paying citizen of the township, contest the validity and legality of the award of this contract to Woolston, and the primary grounds upon which they assail the prosecutors are that the board of township committee of this township is not authorized at all to contract in the matter of the lighting of the streets of the township, or, if so authorized, then they have no power to make such contract for such a length of time as five years. The board of township committee, on the 12th day of June, 1894, by resolution directed the clerk to advertise for a contract for street electric lighting for a term of five years, and bids were then received from three bidders, including bids by Schefbauer and Woolston. These bids were opened on July 10, 1894, and referred to the lighting committee of the board. On August 14, 1894, the committee on lighting reported, recommending the award of the contract to Woolston, and on August 28, 1894, by resolution, the board so awarded the contract. The prosecutors, before the contract was executed, sued out this writ of certiorari to review the proceedings, and the award of the contract.

The question of the extent of the power of townships generally over this matter, and the power of the board in this township, must be first discussed and determined. The township of Kearney was incorporated by an act of the legislature entitled 'An act to set off from the township of Harrison, in the county of Hudson, a new township to be called the township of Kearney," approved March 14, 1807 (P. L. 1867, p. 253). This act, by its express provisions, conferred upon the inhabitants all the rights, powers, privileges, and advantages to which the inhabitants of the other townships in the state were entitled or subject by the laws of this state. By the general law entitled "An act Incorporating the inhabitants of townships, designating their powers, and regulating their meetings" (Revision, p. 1191), approved April 14, 1846 (Nixon, Dig. p. 872), it was provided that the inhabitants of each of the several townships of this state were constituted a body politic and corporate in law, as theretofore constituted and established, by the name of "the Inhabitants of the township of * * * In the county of * * *." By the eleventh section of this act the persons qualified to vote at town meetings were empowered at their annual meeting, or at any other meeting duly held for the purpose, to vote, grant, and raise such sum or sums of money for the maintenance and support of the poor, the building and repairing of pounds, the opening, making, working, and repairing of roads and keeping them in order, and prosecuting or defending the common rights of such township, and for other necessary charges and legal objects and purposes thereof, as are or shall be, by law, expressly vested in the inhabitants of the several townships of this state, by this or some other act of the legislature. By the twelfth section of this act the township committees were authorized to superintend the expenditure of any moneys raised by tax for the use of the township. It will be observed that the power to repair roads and keep them in order was one of the principal objects of the incorporation of townships, and it would seem quite conclusive that the power to light the roads, wherever in the township it became necessary for public safety or convenience, could be exercised, whenever the voters of the 'township, through the forms of law, chose to grant and raise money for that purpose, to be expended under the superintendence of the township committee; and that the township committees were the municipal authorities authorized to act in such matters after such grant of money had been made for the purpose. The power to repair and keep in order roads would certainly, by necessary implication, confer the power to light a road, or portion of It, when necessary; and it is a power which has been exercised by township committees, to a certain extent, ever since the creation of such political subdivisions as townships. It would be a necessary charge, and it would constitute a legal object for the good of the public, within the power of these political organizations. The only restrictions upon the part of the township committee in an expenditure for this purpose would be that it must be preceded by a resolution or order by the voters of the township of a tax for that purpose, which resolution or order could also, by its terms, provide the time and mode in which the township committee should exercise its power. Without the order for the tax, the committee would be Invested with no power whatever over this or any other class of township expenditure; but when the tax is ordered raised for this purpose, and no other agents of the township appointed by the town meeting or town electors, the power to make expenditures for this purpose fell upon the township committee. The township committees are the agents of the township, so far as their acts within the provisions of the law are concerned. Demarest v. Inhabitants of New Barbadoes, 40 N. J. Law, 604. Under the eleventh section of the general township act it is concluded that whenever it became necessary for public safety or convenience to light any road, street, or part or parts thereof in a township, it was within the power of the voters to grant and raise by tax a sum of money sufficient for that purpose, as one of the legal objects of incorporation, to be expended under the superintendence of the township committee, who were the legal body authorized to act in the matter. I think the power falls within the reasonable interpretation of the general township law, and within the principles established by the few cases in this state in which the powers of incorporated townships, and their township committees have been discussed. The power of lighting roads within the townships is not conferred upon any other corporate body exercising municipal authority within the township, and by a fair, reasonable, and necessary implication it arises out of the very nature of the objects and purposes of the township governments as provided by the general laws. The power must be exercised by the municipal authority with reasonable discretion, within the narrow bounds of the legislative grants of authority to townships. I do not think it can be denied that municipal authority, having exclusive power of repair and keeping in safe condition the streets or roads, also has the power, by necessary implication, for the public convenience and safety, to light such streets or roads. 2 Dill. Mun. Corp. (4th Ed.) p. 822, § 691 (546) and cases cited in note. The township powers to be exercised, like those of any other public municipal corporation, are those granted in express words; those necessarily or fairly implied in, or incident to, the powers expressly granted; and those essential to the declared objects and purposes of the corporation. 1 Dill. Mun. Corp. (4th Ed.) § 89, and cases cited. For powers of townships and township committees: Bradley v. Town of Hammonton, 38 N. J. Law, 430; Waterworks v. Smith, 47 N. J. Law, 473, 1 Atl. 459. The township committee, when Indictable for not keeping highways in good order and repair, can file a bill in their own name to restrain shutting up such highways or rendering them impassable. Inhabitants of Greenwich v. Easton & A. R. Co., 24 N. J. Eq. 217, 25 N. J. Eq. 565. The appropriation or grant of money by the voters must, of course, precede, or be in advance of, the obligation or the expenditure, unless otherwise provided by law. Wayne Tp. v. Cahill, 49 N. J. Law, 150, 6 Atl. 621; 26 Am. & Eng. Enc. Law, p. 98, tit. "Towns and Townships"; Rulon v. Inhabitants of Woolwich, 55 N. J. Law, 489, 27 Atl. 906. The power of the township committee to act would depend upon whether the voters of the township had voted any sum or sums of money as an annual expenditure for such object or purpose. When this condition was complied with or otherwise provided for, then the township committee was the municipal body authorized to act in the matter of the superintendence of the expenditure called for. By the provisions of "An act for the improvement of the township of Kearney, in the county of Hudson, and to increase the powers of the township committee in said township," approved April 0, 1871 (P. L. 1871, p. 1371), other and greater powers, rights, and privileges were conferred upon the township committee than were conferred upon township committees in and by virtue of the provisions of the general law incorporating townships, to which reference has been made. The corporate name of the township by this act was designated as "The Board of Township Committee of the Township of Kearney." The powers conferred were as ample as those conferred upon an ordinary city government. By this statute the township, as a body politic, was possessed of all the powers conferred by the general laws...