State v. Mayor

• Decision Date: 11 March 1901
• Citation: 66 N.J.L. 168,48 A. 1022
• Court: New Jersey Supreme Court
• Parties: STATE ex rel. NEW YORK & N. J. TEL. CO. v. MAYOR, ETC., OF BOROUGH OF BOUND BROOK.

48 A. 1022

66 N.J.L. 168

STATE ex rel. NEW YORK & N. J. TEL. CO.

v. MAYOR, ETC., OF BOROUGH OF BOUND BROOK.

Supreme Court of New Jersey.

March 11, 1901.

(Syllabus by the Court.)

Application by the state, on the relation of the New York & New Jersey Telephone Company, for a writ of mandamus to the mayor and common council of the borough of Bound Brook. Writ allowed.

Argued November term, 1900, before GARRISON, GARRETSON, and COLLINS, JJ.

Corbin & Corbin, for relator.

William P. Vossler and Alan H. Strong, for defendant.

GARRETSON, J. This is an application for a mandamus upon the mayor and council of Bound Brook to designate a route for a telephone line through the borough. In the case of Home Tel. Co. v. City of New Brunswick, 62 N. J. Law, 172, 40 Atl. 628, where an application was made for a route through various streets of the city, the court says: "If we could regard the petition as requesting merely the designation of a continuous route for a line through the city, we would have no doubt of the duty of council to grant it." "The basis on which such a duty is claimed to rest is found in the telegraph companies acts, approved March 11, 1880, April 1, 1887, and April 27, 1888 (Gen. St p. 3459)." "Of these, we think the last only is now operative; for, in our judgment, it has superseded the previous statutes." "The first section of the act of 1887 was plainly but a substitute for, and extension of, the first section of the act of 1880; for, except as it broadened the scope of the law, it adopted the very words of the earlier act, and covered the same ground. Then came the act of 1888, which is in terms an amendment of the act of 1887, and so, of course, takes its place."

It is admitted by the counsel of the company that the delegation of power to the circuit court in the act of 1887 to designate a route, in case the common council does not make the designation within 50 days, is improper and void, and for that reason application for mandamus is made to this court. The counsel of the borough claim that this delegation of power to the circuit court is void, and renders the entire act unconstitutional. We think that the act of 1888 contains an improper delegation of power to the circuit court, and in that respect is void (Mayor, etc., v. Lord, 61 N. J. Law, 136, 38 Atl. 752); but we do not think that this renders the rest of the act unconstitutional. In the case of Home Tel. Co. v. City of New Brunswick, supra, it is to be noticed that it did not appear to be claimed that the company's remedy for the city's failure to act was by...