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

• Decision Date: 06 April 1894
• Citation: 29 A. 163,56 N.J.L. 431
• Parties: STATE ex rel. WEST JERSEY TRACTION CO. v. BOARD OF PUBLIC WORKS OF CITY OF CAMDEN et al.
• Court: New Jersey Supreme Court

29 A. 163

56 N.J.L. 431

STATE ex rel. WEST JERSEY TRACTION CO.

v. BOARD OF PUBLIC WORKS OF CITY OF CAMDEN et al.

Supreme Court of New Jersey.

April 6, 1894.

(Syllabus by the Court)

Certiorari by the state, at the prosecution of the West Jersey Traction Company, against the board of public works of the city of Camden and the Camden Horse-Car Railroad Company, to set aside an ordinance passed by said board. Ordinance set aside.

This writ brings up an ordinance passed by the board of public works of the city of Camden at a special meeting held on June 19, 1893, entitled "An ordinance confirming and granting consent and permission to the Camden Horse Railroad Company to lay and construct its railway tracks, and authorizing it to use electric motors to propel its cars, and erect poles and wires therefor in, upon and along the public streets and highways of the city of Camden," and the ordinances, rules, and notices under which said meeting was held, and the vote by which said ordinance was passed, and the members present at said meeting.

Argued November term, 1893, before DEPUE, VAN SYCKEL, and REED, JJ.

T. E. French and S. H. Grey, for plaintiff. D. J. Pancoast and T. H. McCarter, for defendants.

REED, J. The questions involved in this case spring out of the efforts of each of two corporations to secure the right to lay street-railway tracks in the same streets in the city of Camden. The Camden Horse-Car Railroad Company was incorporated by an act of 1866, p. 640. The act gave the company power to construct a railway on certain named streets in the city of Camden. By a supplement to that act (P. L. 1868, p. 638), the company was empowered to maintain a railroad on Delaware, Market, and such other streets as might be necessary for the business of the company. By a supplement (P. L. 1872, p. 512) the company was empowered to build roads on any public road or highway in the city of Camden, or on any public road or highway extending from said city into the county of Camden. Then, by the act of 1893, p. 144, it was enacted, that thereafter it should be unlawful for a street-railroad company organized under a general act or a special charter to construct any railroad track or tracks, or any extension of the same, through or along any street of any municipal corporation, without first obtaining the consent of the common council, board of aldermen, board of public works, or other governing body having control of the public streets. On June 19, 1893, the ordinance brought into this court by the present writ was passed by the board of public works of the city of Camden. This ordinance purports to confirm a consent which had been already given to the Camden Horse-Car Railroad Company to build railroad tracks along any street, from time to time, as by it deemed necessary. The legality of this ordinance is now attacked.

The defendants, in the first place, deny the right of the prosecutors to make this attack. They claim that the West Jersey Traction Company has no special interest which is affected injuriously by the ordinance. It is therefore essential that the position of the traction company in relation to the matters affected by the ordinance should be displayed. The West Jersey Traction Company was organized under the provisions of the general act passed in 1893 (P. L. 1893, p. 302). This act provides for the association of three or more persons to, inter alia, construct and operate street railways, either by extensions of existing railways, or by building new lines, either wholly within, or partly within, or wholly between, cities. It provides for the filing of the certificate of incorporation in the county clerk's office, and then in the office of the secretary of state, and further provides that at the time of the last filing the sum of $25,000 shall be paid to the state treasurer. Upon such filing and payment the persons associated become a corporation. It provides that, before beginning the construction of such extension or new line, such company shall file in the office of the secretary of state a description of the route of such extension or new line, showing the termini of such extension or new line, together with a map exhibiting the same, with the course and distances thereof. It provides that, upon filing such description and map, such company shall thereby secure the exclusive right to build such extension or new line, provided such corporation shall have obtained the consent of the body having the control of streets, as to the route. The prosecutors claim that they have performed all the conditions required to constitute them a corporation under this act; and that they had filed a route over some of the streets of Camden at the time when the ordinance was passed giving consent to the defendants to occupy these same streets. They had also, on May 15, 1893, presented to the board of public works a petition requesting permission to lay tracks in the said streets. If all this be so, I entertain no doubt of the right of the prosecutors to sue out this writ. After the filing of the route mentioned, the two companies stood upon an equal footing, each asking for municipal consent to its occupation of these streets. But after the consent was given to the defendants, and so long as that consent stands as a valid license, the aspect of affairs is entirely changed. The consent given to the one practically excluded the other from all hope of obtaining any right in the same street. No one would believe for a moment that there is the faintest probability, while the present license stands, that any other license will be granted to any other corporation. The license stands in the way of any fair consideration of the petition of the prosecutors. The right of the prosecutors, under these conditions, to call in question the legality of a license which affects them in this way, should and does exist.

The defendants, however, insist that the prosecutors have not proved that they are a corporation, with a filed survey, as claimed. It is insisted—First, that there is no proof that the sum of-$25,000 was paid to the state treasurer at the time of filing the certificate of incorporation; second, that the description of route was filed simultaneously with the certificate, and so could not have been a corporate act; third, that there is no proof that a map was filed at all; fourth, that the description is void because it contains several routes in one paper.

As to the first insistence, it is sufficient to say that a copy of the receipt of the state treasurer for the amount, is certified by the secretary of state; and this copy was admitted in evidence, and printed in the paper book, without objection. As to the second, I see no reason to think that the filing is not within the statute. As to the third, the secretary of state certifies that there is a map; and this certificate, like the receipt mentioned, was admitted and printed without objection. As to the last point, I am of the opinion that the description is sufficient. I do not understand that it is denied that a corporation organized under the act of 1893 has the power to build more than one, or to build one road with several branches. If this power exists, I can perceive no reason why the several descriptions of the roads, or of the road and its branches, may not as well be included in one paper as in several papers.

It is also observable, in respect to the objections aimed at...