Sturr v. Borough of Elmer

• Citation: 67 A. 1059,75 N.J.L. 443
• Parties: STURR v. BOROUGH OF ELMER et al.
• Decision Date: 11 November 1907
• Court: United States State Supreme Court (New Jersey)

67 A. 1059

75 N.J.L. 443

STURR

v. BOROUGH OF ELMER et al.

Supreme Court of New Jersey.

Nov. 11, 1907.

(Syllabus by the Court.)

Certiorari by Isaac Sturr against the borough of Elmer and others to review two resolutions passed by the council of that borough. Resolutions set aside.

Argued June term, 1907, before HEND-RICKSON, PITNEY, and TRENCHARD, JJ.

Henry Burt Ware, for prosecutor. John Boyd Avis and John C. Edmunds, for defendants.

TRENCHARD, J. This writ of certiorari brings up for review two resolutions of the borough council of the borough of Elmer, passed February 7 and March 7, 1906, for the purchase of certain lands of Emma L. Hitchner, located in the borough, together with the proceedings thereunder.

Many reasons are assigned for reversal. The determination of this case, however, requires the consideration of but five of them. In the brief for the borough, no attempt is made to sustain these proceedings as being in due form of law; it being admitted that the purchase should have been by ordinance regularly passed, approved, and published. Entire reliance is placed upon the alleged laches of the prosecutor. The second, third, and fourth reasons for reversal are based upon the fact that the resolutions were not, after their passage, submitted to the mayor for his approval, and that they were not published. Section 27 of the borough act of 1897 (P. L. p. 296) provides that every ordinance passed by the council and every resolution appropriating or in any way tending to pecuniarily obligate the borough shall, within five days after the passage thereof, be presented to the mayor for his approval. The resolutions in question tended to pecuniarily obligate the borough, and could not be carried into effect without imposing a pecuniary burden. Neither of said resolutions was approved by the mayor or presented to him for approval. Compliance with this provision of the statute was essential to the validity of the proceedings. State v. Newark, 25 N. J. Law, 399; Hendrickson v. Point Pleasant, 65 N. J. Law, 535, 47 Atl. 465.

The seventh and ninth reasons are based upon the fact that, whereas, the lands were bought of Mrs. Hitchner, her husband was at the same time a member of the borough council, and that therefore the contract between her and the borough was void. We are of the opinion that contracts such as the one under review have received the condemnation of the Legislature. This appears by P. L. 1901, p. 393. That act provides as follows: "Any member of * * * any board of aldermen or common council * * * of any * * * borough * * * who shall be directly or indirectly concerned in any agreement or contract * * * or any improvement whatever to be constructed or made for the public use or at public expense * * * or who shall be directly or indirectly in terested in furnishing any goods, chattels, supplies or property of any kind whatsoever to or for the * * * borough * * * the contract or agreement for which is made or the expense or consideration of which is paid by the * * * council * * * of which such member is a part, shall be guilty of a misdemeanor." While the section contains much besides, it contains, clearly, the provision above set forth. This language, with equal clearness, includes the contract now in question. Dr. Hitchner was a member of the borough council at the time the resolutions were passed, and was indirectly,...