State v. Mayor

• Decision Date: 04 November 1887
• Citation: 10 A. 881,50 N.J.L. 126
• Parties: STATE (NEWARK AQUEDUCT BOARD, Relators) v. MAYOR, ETC., OF CITY OF NEWARK.
• Court: New Jersey Supreme Court

10 A. 881

50 N.J.L. 126

STATE (NEWARK AQUEDUCT BOARD, Relators)

v. MAYOR, ETC., OF CITY OF NEWARK.

Supreme Court of New Jersey.

November 4, 1887.

(Syllabus by the Court.)

On application for mandamus.

E. L. Price, for relators. J. Coult, for defendants.

PARKER, J. This is an application, on relation of the Newark Aqueduct Board, for a writ of mandamus, to be directed to the common council of the city of Newark, to compel said common council to proceed forthwith to raise by tax the sum of $3,500, to be used to increase a fund for the payment of certain bonds, which had been issued pursuant to the provisions of an act entitled "An act to authorize the mayor and common council of the city of Newark to purchase the property of the 'Newark Aqueduct Company,' and creating the 'Newark Aqueduct Board,'" approved March 20, 1860, and the several supplements thereto. By the said act of 1860 provision was made for the purchase, by the city of Newark, of the property, rights, and franchises of the Newark Aqueduct Company, a corporation (which had been chartered as early as the year 1800) for the purpose of supplying the said city with water. The said act provided for the creation of a corporation called the "Newark Aqueduct Board," with authority to take and hold, for and in the name of the mayor and common council of the city of Newark, all the property purchased from the Newark Aqueduct Company by the city, and all other property which might be necessary or convenient to accomplish the purposes contemplated. For the purpose of paying the cost of purchasing the capital stock and property of the "Newark Aqueduct Company," the aqueduct board was authorized, in the name of "the mayor and common council of the city of Newark," to issue bonds—First, to the amount of $150,000; secondly, to the amount of $100,000; and, thirdly, to the amount of $150,000; which last-named bonds, and the proceeds of the sale thereof, were to be appropriated to the redemption of the issue first above mentioned. By the twenty-fourth section of the act of March 20, 1860, it was provided that, in order to create a fund for the payment of said bonds, authorized by said act, at maturity, "The mayor and common council of the city of Newark" should annually raise, by tax, the sum of $3,500, until said bonds should be paid and redeemed; and the said aqueduct board was further authorized and required to invest the said sum, from time to time, (together with such net revenue as from year to year might remain in their hands,) as a sinking fund, for the redemption of said bonds.

It appears that all the bonds authorized by the act of March 20, 1860, were issued by the said aqueduct board, and that the first issue of $150,000 was subsequently taken up by the third issue of the same amount; thus leaving outstanding (when the first issue was redeemed) bonds authorized by said act of 1860 amounting to $250,000; being the sum limited by the twenty-first section of said act as the permanent indebtedness of the city to be incurred by said aqueduct board. For 26 years the sum of $3,500 has been placed in the tax levy annually by order of the common council. This year it was stricken out, by resolution of council, on the ground that all the bonds authorized by the act of 1860, to secure the payment of which the said sinking fund was created, had been paid. The proofs show that all the bonds issued under the act of March 20, 1860, were paid; the last having been redeemed in the year 1869. The only question raised as to the payment of the bonds is in reference to four, for the payment of $10,000 each, which will become payable in 1892. The relators insist that those bonds are part of the $100,000 issue authorized by the act of 1860. But the evidence shows that they were not issued under that act, but under an act approved March...