State v. Borough of Wildwood

• Decision Date: 25 June 1897
• Parties: STATE (COWEN, Prosecutor) v. BOROUGH OF WILDWOOD. STATE (SIMMERMAN, Prosecutor) v. SAME.
• Court: New Jersey Supreme Court

38 A. 22

60 N.J.L. 365

STATE (COWEN, Prosecutor)

v. BOROUGH OF WILDWOOD.

STATE (SIMMERMAN, Prosecutor)

v. SAME.

Supreme Court of New Jersey.

June 25, 1897.

(Syllabus by the Court.)

Certioraris by the state, at the prosecution of William D. Cowen and Charles H. Simmeman, against the borough of Wildwood, to review an ordinance. Ordinance set aside.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

Morgan Hand, for prosecutors.

D. G. Pancoast, for defendant.

DIXON, J. The motion to dismiss these writs of certiorari because they were allowed after the contract for the improvement was awarded, in supposed violation of section 92 of the borough act of 1897, should not prevail, for the reason that the contract was awarded before the ordinance which provided for the making of such a contract went into effect. To apply that section according to its terms to the case in hand would result in a mere denial of the constitutional remedy. The prosecutors are not entitled to attack the contract which the writ directs the defendant to send up, because the contractors, Messrs. Govern and Hannegan, have not been brought into court, and as to the contract the prosecution should be dismissed. The ordinance brought up was illegally adopted, having been altered in substance at the very meeting at which it was passed, in contravention of section 14 of the borough act of 1878 (1 Gen. St. p. 182), which requires that ordinances should be submitted in writing at a regular meeting of the council, and acted upon at a subsequent meeting. The ordinance must therefore be set aside. Ackerman v. Town of Bergen, 33 N. J. Law, 39; Gregory v. Jersey City, 34 N. J. Law, 429; People's Gas-Light Co. v. Jersey City, 46 N. J. Law, 297. The prosecutors having failed as to the contract, no costs will be allowed.