State v. City of Elizabeth

• Decision Date: 01 March 1898
• Citation: State v. City of Elizabeth, 61 N.J.L. 411, 39 A. 906 (N.J. 1898)
• Parties: STATE (BENTON et al. Prosecutors) v. CITY OF ELIZABETH et al.
• Court: New Jersey Supreme Court

39 A. 906

61 N.J.L. 411

STATE (BENTON et al. Prosecutors)

v. CITY OF ELIZABETH et al.

Supreme Court of New Jersey.

March 1, 1898.

Dissenting opinion. For majority opinion, see 39 Atl. 683.

VAN SYCKEL, J. The evidence shows that the laying of the proposed pipe line by the defendant company, for the transit of crude petroleum through the city of Elizabeth, will be injurious to the property of the prosecutors; and that gives them a standing in this court to contest the validity of the ordinance passed by the common council of Elizabeth, which gives to said company the privilege of opening certain streets in said city, and laying its pipes across them. I do not question the authority of Duncan v. Hayes, 22 N. J. Eq. 25, and like cases cited on behalf of the defendants, but regard them as having no pertinency to this controversy. No rule is more firmly settled than that persons specially injured by the official action of a common council may challenge its legality. The National Transit Company is a foreign corporation, without any authority from this state to lay its pipe line. I find no authority in the common council to pass this ordinance, and cannot distinguish this case from the following cases in our own courts, in which the existence of such power was denied: State v. Inhabitants of Trenton, 36 N. J. Law, 79; State v. Mayor, etc., of City of Newark, 49 N. J. Law, 344, 8 Atl. 128; Hutchinson v. State. 39 N. J. Eq. 569. In these cases our courts refused to recognize the right of the common council to grant the use of the street until authority was conferred upon it by the legislature to make such grant, although the consent of abutting landowners was obtained. In the case of Montgomery v. Inhabitants of Trenton the municipal ordinance granted to certain persons the right to lay a railroad track across West State street, with the consent of abutting landowners, and in such a way as not to interfere with travel on the street. This court said that the common council of the city of Trenton had no power over streets other than that conferred by the city charter, and that the ordinance must fall unless authority could be found for it in the corporation act. The provision of the charter of Trenton relied upon to support the ordinance is as follows: "The common council shall have power to regulate, clean, and keep in repair streets, etc., in said city, and to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street, avenue, highway, or alley in said city, or in digging up any street, avenue, highway, or alley for the purpose of laying down pipes or any other purpose whatever." It will be observed that the language used in the city charter of Elizabeth upon this subject is precisely that of the charter of Trenton, and it must therefore receive the same interpretation. This court, in construing this provision of...