State v. Sloane

• Decision Date: 17 February 1887
• Citation: 49 N.J.L. 356,8 A. 101
• Parties: STATE (CITY OF LONG BRANCH, PROSECUTOR,) v. SLOANE and others.
• Court: New Jersey Supreme Court

8 A. 101

49 N.J.L. 356

STATE (CITY OF LONG BRANCH, PROSECUTOR,)

v. SLOANE and others.

Supreme Court of New Jersey.

February 17, 1887.

(Syllabus by the Court.)

On August 11, 1886, A. Walling, Jr., presiding judge of the Monmouth county common pleas, made an order directing a special election to be held on August 25, 1880, of the legal voters within the municipality known as the "Long Branch Police, Sanitary, and Improvement Commission," to vote for or against the incorporation of a proposed borough, to be known by the name of the "Mayor and Council of the Borough of Long Branch," and comprising territory designated by a particular description. The order was declared therein to be made under the provisions of chapter 187 of the Laws of 1886, and upon the application and notice required by that act. The order further declared that the election so called was to determine, by the votes of the majority, upon the acceptance of the powers conferred by said act, and the acts to which it was supplemental. The order, with the application and notice, have been brought here by this writ of certiorari.

Mr. Arrowsmith and F. P. McDermott, for prosecutor.

J. S. Applegate, for defendants.

MAGIE, J. Some preliminary questions must be disposed of before the validity of the order brought up by the writ can be considered.

It is contended, in the first place, that the prosecutor named in the indorsement on the writ is a fictitious person. The insistment is that the "City of Long Branch" is not the name of any corporation known to the law, and that for this reason the certiorari should be dismissed. If no prosecutor had been named in the indorsement, a motion to quash this writ would have prevailed. Coddington v. Stanton, 7 N. J. Law, 84. But the writ was regularly allowed. The judge who gave it his allocatur must have been satisfied there was a real prosecutor. The objection must therefore take this shape, viz., that the real prosecutor has indorsed on the writ a wrong name. From the briefs of counsel we learn that this is the real objection, for it thus appears that the prosecutor is the corporation which was created by an act entitled "An act to establish the Long Branch Police, Sanitary, and Improvement Commission," approved April 11, 1865, and which exercises the powers conferred by that act, and by others supplementary to it. In the same manner we learn that this corporation assumed the name indorsed on the writ under authority of an act entitled "An act providing for additional powers and certain changes in the government of certain localities governed by commissioners," passed April 17, 1884, and a supplement to that act, passed March 9, 1886.

Defendants' contention is that these acts are void for unconstitutionality, and the change of corporate name based thereon is equally void. The fourteenth section of the act of 1884 has been already pronounced invalid in this court. Moss v. Winsor, 48 N. J. Law, 95, 2 Atl. Rep. 658. The reason which induced this court to declare that an abortive act of legislation seems equally applicable to the supplement of 1886, so far as it gives authority to adopt a municipal title only to municipalities governed by commissioners, and withholds such authority from other municipalities. But assuming that defendants may question, in this collateral way, the right of prosecutor to use the name indorsed on the writ, and that prosecutor has no right to that name, yet the objection ought not to result in a dismissal of the writ at this time. The need of a prosecutor in certiorari is only to provide a person against whom a judgment for defendants may be enforced. There is a real prosecutor. If it asks to have the writ and proceedings amended by the indorsement of its proper corporate name, they can and ought to be so amended. State v. Jersey City, 35 N. J. Law, 405; State v. Justice, 24 N. J. Law, 413; Inhabitants v. Dilley, Id. 209; Upper Freehold v. Hillsborough, 13 N. J. Law, 289; State v. Han ford, 11 N. J. Law, 71; State v. Kirby, 5 N. J. Law, 835. If it declines to apply, defendants may make application for an order requiring such an amendment, if they think it desirable, before the judgment in this case shall be entered.

It is next contended that the writ should not have been directed to Judge Walling, but to the applicants for the order. By the well-settled rule, it ought to have been directed to the person or persons known to have the custody of the order. The return has been made by Judge Walling, and shows that the original order was in his custody.

In Morris Canal v. State, 14 N. J. Law, 411, a certiorari was directed to the commissioners appointed to appraise lands taken by the Morris canal. By the act under which they were appointed, they were required to file their appraisements with the clerks of the various counties through which the canal ran. The return made, showed that they had filed the appraisements, and it was held that the writ should have been directed to the clerks.

But in this case it appears that Judge Walling had the actual custody of the order. In my judgment he was the rightful custodian of the order. The act under which it purported to have been made does not declare in whose custody it is to be kept. That is left to implication. By section 5 it is provided that, if a majority of votes cast shall be found to be "for incorporation," the result shall be certified to the clerk of the county, "to be filed in his office." From the time of the filing of such a certificate, the inhabitants of the district affected become incorporated. From this I think it may be inferred that the judge's order, which is the only justification for such an election, should be also then filed. It should therefore remain in his custody, so that he may file it. It does not seem to be a reasonable inference that the order should be in the joint custody of the numerous applicants, many, and indeed all, of whom may be non-residents.

It is further urged that the writ was sued out prematurely. It was tested on August 19, 1886, while the election called for by the order was not to be held until August 25th. But this objection is untenable. This order was a first step in a proceeding which might result in the dismemberment of the municipality, which is the real prosecutor. It was an adjudication by the officer who made it of his right to call the election. When made, the municipality affected had a right to challenge the validity of his adjudication. In this respect the case falls within that class in which a certiorari will lie before final action or judgment. State v. Paterson, 39 N. J. Law, 489.

We are therefore compelled to consider whether the order brought up by this writ can be sustained. The reason urged against this order calls in question two acts of the legislature, under which it was made, and upon the validity of which it can alone stand. The contention is that both acts are void, because within the prohibition of that part of paragraph 2 of section 7 of artide 4 of the amended constitution which forbids the passing of private, local, and special laws regulating the internal affairs of towns and counties. The first of these impugned acts is entitled "An act for the formation of borough governments," approved April 5, 1878, (Laws 1878, p. 403.) The second is a supplement to the first, and was approved April 22, 1886, (Laws 1886, p. It is obvious, however, that the act of 1878 ought not to be brought into question, unless it is necessary to the decision of the case before us. It seems to have stood unchallenged for nearly nine years. Under its provisions borough governments may have been formed. A decision against its validity might operate most disastrously upon such boroughs, without their having had an opportunity to be heard. For this reason, the objections to the supplement of 1886 have been first considered, and, since they have been found to be unsurmountable, no opinion will be expressed on the act of 1878. It will be referred to only so far as necessary to make clear the points decided.

The act of 1878 empowers the inhabitants of any township, or part of a township, embracing an area not exceeding four square miles, and containing a population not exceeding 5,000, to become a body corporate when a majority of the electors in the proposed borough shall so decide. It provides how an election for that purpose shall be held, and how its result shall be certified. When the certificate shows a decision in favor of incorporation, the inhabitants are declared to become a corporation, with the usual powers of succession, etc. It provides for the subsequent election of officers for the government of the borough, and prescribes their powers and duties. It grants to the corporations so created certain municipal powers, broader in extent than those possessed by townships, but not so extensive as those usually possessed...