Town of Keyport v. Cherry

• Decision Date: 16 August 1889
• Parties: TOWN OF KEYPORT v. CHERRY et al.
• Court: New Jersey Supreme Court

18 A. 299

51 N.J.L. 417

TOWN OF KEYPORT

v. CHERRY et al.

Supreme Court of New Jersey.

Aug. 16, 1889.

(Syllabus by the Court.)

Certiorari to court of common pleas, Monmouth county; WALLING, BENNETT, and CURTIS, Judges.

F. P. McDermott, for prosecutor. B. B. Ogden, for defendant.

SCUDDER, J. The writ in this case brings up for review the proceedings of surveyors of highways to lay out a public road in the town of Keyport, including the application, the appointment, the return laying out the road, the map, the assessments of damages to the land-owners, and the order of the court for recording the same. The jurisdiction of the court of common pleas to proceed under the general road law to lay this road is disputed by the town commissioners, who claim exclusive jurisdiction under their charter. If such power is conferred upon them by special law, the general authority of the court for laying roads in the townships of the state is excluded. State v. Clarke, 25 N. J. Law, 54; State v. Trenton, 36 N. J. Law, 198. If the town authorities are not, by express words or necessary implication, given full and complete jurisdiction of the subject-matter of laying roads within the boundaries of the corporation, the general power of the court remains. State v. Troth, 34 N. J. Law, 377; State v. Fisher, 43 N. J. Law, 377. The charter incorporating the town of Keyport within the township of Raritan (Laws 1870, p. 1022, § 5,) gives the commissioners, who are the governing body, the power, among other things, to pass and enact by-laws and ordinances for opening, altering, regulating, and fixing the grade of the roads, streets, and sidewalks, for keeping the same in repair, and for preventing and removing obstructions therefrom, etc. Section 14 provides that the land-owners on any street that is or may thereafter be opened, by a majority of their votes, may have the sidewalks graded and paved in the manner therein prescribed. The supplement to the charter, approved March 7, 1871, (Laws, 382, § 2,) enacts that the board of commissioners shall have full power to open streets, widen streets and parts of streets, straightening lines of streets, and assess the cost, benefit, and damages thereof on the property benefited, etc.; and, on the application of property holders, in the manner provided in the fourteenth section of the act, to which this is a supplement, in applications for paving streets, shall lay out new streets. The former limitation to opening and improving...