State v. Long Branch Police, Sanitary & Improvement Comm'n

• Decision Date: 17 November 1896
• Citation: 59 N.J.L. 371,35 A. 1070
• Court: New Jersey Supreme Court
• Parties: STATE (TAPPAN et al., Prosecutors) v. LONG BRANCH POLICE, SANITARY & IMPROVEMENT COMMISSION et al.

35 A. 1070

59 N.J.L. 371

STATE (TAPPAN et al., Prosecutors)

v. LONG BRANCH POLICE, SANITARY & IMPROVEMENT COMMISSION et al.

Supreme Court of New Jersey.

Nov. 17, 1896.

(Syllabus by the Court.)

Certiorari by the state, at the prosecution of Robert Tappan and others, against the Long Branch Police, Sanitary & Improvement Commission and others. Affirmed.

Argued November term, 1896, before DIXON, J.

Thomas P. McKenna, for prosecutors.

Wilbur A. Heisley, for defendants.

DIXON, J. This certiorari brings up a resolution adopted August 14, 1896, by the Long Branch Commission, directing the payment to the Barber Asphalt Company of 5900, for interest on notes of the commission held by said company. The reasons presented for setting aside the resolution are, in effect, these: (1) That the action of the commission should have been taken by ordinance; (2) that the votes of five members of the commission were necessary, while only four were received; and (3) that the commission had no power to pay the debt represented by said notes.

As to the first reason, I find nothing in the laws establishing the Long Branch Commission which requires such action as was here taken to be in the form of an ordinance.

As to the second reason, even if it be true that one of the standing rules adopted by the commission makes necessary the concurrence of five members in any order for the payment of money, that rule would be in contravention of the statutes establishing the commission, and, therefore, would be void. By the statute of April 8, 1875 (P. L. 1875, p. 477), the commissioners are to be seven in number (section 1) and a majority of the whole number constitutes a quorum for the transaction of business (section 31). The power thus conferred upon four members cannot be diminished by a rule or by-law of the corporation itself. Breninger v. Treasurer of Town of Belvidere, 44 N. J. Law, 350.

The third reason presents the serious question of the case. It appears that, in accordance with two similar acts of the legislature, passed in 1891 (P. L. 1891, p. 206) and 1892 (P. L. 1892, p. 146), and a supplement passed In 1893 (P. L. 1893, p. 109), the Long Branch Commission entered into a contract with the Barber Asphalt Company for the paving of certain streets in Long Branch, agreeing to make partial payments therefor monthly as the work progressed, and to make full payment in four months after the whole work was completed and accepted. Under this contract the work was fully performed by the asphalt company, and the notes in question represent part of the price. Subsequently the commission caused assessments to be levied upon property benefited, for the purpose of meeting one-half of the cost of the improvement, in accordance with said act of 1892; and, some of those assessments having been brought before this court by certiorari, they were, in June, 1896, set aside, for the reason that the acts of 1891 and 1892 were special, and therefore unconstitutional. Dobbins v. Long Branch Commission (not printed). On these premises it is argued that the alleged contract was void,—that the commission is under no legal obligation to pay for the work, and under no moral obligation which it has authority to recognize. An examination of the laws establishing the commission, the validity of which is not denied, will, I think, demonstrate that, independent of the unconstitutional acts mentioned, the commission had power to contract for the paving of the streets of Long Branch, and to pledge the general credit of the municipality for the payment of the expense thereof. A supplement to the charter, approved April 8, 1875 (P. L. 1875, p. 477), declared (section 61) that it should be lawful for the board of commissioners, by ordinance, "to order and cause any street or section of a street to be * * * paved * * * at the expense of the owners of lands and real estate on the line of said street or section of a street, and at the expense of the property benefited thereby." It further declared (section 85) that the commissioners should have power to issue scrip for the payment of the paving until the same could be collected from the owners of...