State v. Mayor

• Decision Date: 07 November 1895
• Citation: 58 N.J.L. 289,33 A. 279
• Parties: STATE (BIDDLE et al., Prosecutors) v. MAYOR, ETC., OF BOROUGH OF RIVERTON.
• Court: New Jersey Supreme Court

33 A. 279

58 N.J.L. 289

STATE (BIDDLE et al., Prosecutors)

v. MAYOR, ETC., OF BOROUGH OF RIVERTON.

Supreme Court of New Jersey.

Nov. 7, 1895.

(Syllabus by the Court.)

Certiorari in the name of the state at the suit of Charles M. Biddle and others against the mayor and common council of the borough of Riverton to review an ordinance by defendant borough directing an election to be held in that borough to determine for or against the issuance of Improvement bonds for electrical lighting of the borough and the proceedings concerning the same. The return shows that an election was held under the ordinance, resulting in a majority in favor of issuing such bonds. Judgment for prosecutors.

Argued June term, 1895, before VAN SYCKEL, LIPPINCOTT, and MAGIE, JJ.

Mark R. Sooy, for prosecutors.

Clarence T. Atkinson, for the borough.

MAGIE, J. Counsel for the borough first contend that the certiorari in this case was improvidently allowed. The borough was incorporated under the "Act for the formation and government of boroughs," approved April 2, 1891 (Laws 1891, p. 280). The proceedings before us were taken under the provisions of the "Act concerning boroughs," approved March 28, 1892 (Laws 1892, p. 322). The latter act authorizes the issue by any borough of improvement bonds, the proceeds of which are directed to be appropriated by its council to the payment and cancellation of indebtedness incurred or to be incurred for certain specified purposes. It provides for an election at which the voters of the borough may vote in favor of or against the issue of such bonds, and that, if a majority vote against such issue, it shall not be made. The ordinance shows the purpose of the issue of the proposed bonds to be "the purchase and erection of an electric light plant for lighting said borough."

It is thereupon contended: First. That prosecutors have no standing to sue out this writ. But it is now settled that after the allowance of a certiorari the right of prosecutors to the writ will be assumed, in the absence of proof to the contrary. State v. Mayor, etc., of Borough of Neptune City (Sup.) 30 Atl. 529; Id. (Err. & App.) 32 Atl. 220. There is no such proof. On the contrary, it appears that prosecutrix is the owner of taxable property in the borough. As such she may prosecute a certiorari to review this proceeding, which tends to burden the taxing district with debt. Middleton v. Robbins, 54 N. J. Law, 566, 25 Atl. 471. If the other prosecutor, who is her husband, is improperly joined, or if the writ should be indorsed in the name of the state, the error is amendable. Long Branch v. Sloane, 49 N. J. Law, 356, 8 Atl. 101, and cases.

It is next contended that, although the election resulted in favor of the issue of bonds, yet that the council is not bound to issue them because it still has a discretion whether or not to purchase and erect the electric plant proposed; that the discretion may be exercised against such purchase or erection, in which event no bonds could be issued, and that prosecutrix, although a taxpayer, is not now injured, and perhaps never may be injured, by these proceedings. It may be questioned whether this construction of the act of 1892 is admissible, and whether council could not be compelled by mandamus to proceed with the scheme to which a majority of the voters have given their adhesion. But the contention cannot prevail. It has been settled in the court of errors that when a proceeding of such a character is put in motion, which, In its outcome, is calculated to specially touch a person adversely, he may prosecute a certiorari for its review before final action, although there is no certainty that such final action will be taken. An order for an election under the Werts law to determine whether the minimum fee for license in a township should not be $5,000 was allowed to be questioned by certiorari although no election had been held, and there was nothing to show that, if held, it would have resulted in fixing that minimum. Middleton v. Robbins, ubisupra. The case before us is stronger, for the election has been held, and the bonds may, and perhaps must be, issued.

We must therefore examine prosecutors' objections to the ordinance and proceedings. It is first contended in their behalf that the borough is not empowered to "purchase or erect an electric light plant for lighting the borough" to meet the expenses of which these bonds are proposed to be issued. If this be so, the ordinance is ultra vires. Among the powers conferred upon boroughs formed under the act of 1891 is included that of passing ordinances...